ANITA SHOVER et al. v. GEORGE R. WILLIAMSON, III, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4483-04T34483-04T3

ANITA SHOVER and ROBERT

SHOVER, her husband,

Plaintiffs-Appellants,

v.

GEORGE R. WILLIAMSON, III,

GEORGE WILLIAMSON, JR.,

GLOBE INDEMNITY COMPANY,

ROYAL & SUN ALLIANCE INSURANCE,

THE TOWNSHIP OF FRANKLIN, and

THE COUNTY OF GLOUCESTER,

Defendants-Respondents,

and

GLOBE INDEMNITY COMPANY,

Defendant-Third Party

Plaintiff,

v.

PORCHTOWN RECYCLERS, INC. and

HARRY C. SHOVER,

Third Party Defendants.

_____________________________________________________

 

Argued March 22, 2006 - Decided May 5, 2006

Before Judges Stern, Parker and Grall.

On appeal from the Superior Court of New

Jersey, Law Division, Gloucester County,

Docket No. L-420-03.

Angelo J. Falciani argued the cause for

appellants.

Jessica D. Ruch argued the cause for respondents

George Williamson, III, and George Williamson,

Jr. (Thomas Dempster, III, and Associates, attorneys;

Ms. Ruch, on the brief).

Richard S. Nichols argued the cause for respondent

Globe Indemnity Company (Gennet, Kallmann, Antin

& Robinson, attorneys; Mr. Nichols, on the brief).

Zucker, Facher and Zucker, attorneys for respondent

Township of Franklin, rely on brief submitted on

behalf of Globe Indemnity Co.

PER CURIAM

Plaintiff Anita Shover and defendant George Williamson, III were involved in an automobile accident on December 15, 2002 in Franklin Township. After entry of final judgment, plaintiffs Anita and Robert Shover appeal from interlocutory orders entered on January 21, 2005, denying their motion for summary judgment and granting summary judgment to the defendants George Williamson, III, the driver, and his father George, Jr., the owner of the other vehicle involved in the accident; and to Globe Indemnity Company, the insurance carrier of Porchtown Recyclers, Inc., purported owner of the vehicle plaintiff was driving at the time of the accident. Plaintiffs also challenge the "final judgment" of February 4, 2005 itself, which awarded Globe Indemnity, as counterclaimant, $23,000 in counsel fees under the Insurance Fraud Prevention Act. In addition, plaintiffs appeal from the denial of reconsideration by order of March 29, 2005, which also dismissed the action against the Township of Franklin and Gloucester County, thereby rendering final judgment. The March 29, 2005 order expressly restated "that Anita Shover was the owner and operator of an uninsured vehicle on December 15, 2002," when the accident occurred, so that the insured, Porchtown Recyclers, was not.

Plaintiffs argue that "the trial court erred in denying [their] motion for partial summary judgment" in which they sought: (1) "a declaration that Anita J. Shover was not the owner of the [vehicle] involved in the accident on the date of the accident," (2) "no fault [PIP] benefits," and (3) "underinsurance motorist coverage against Globe." In addition, plaintiffs claim that the court erred in granting summary judgment to the Williamsons, and finding that plaintiff was the owner of the vehicle and that she was uninsured. Plaintiffs further assert that summary judgment should have similarly been denied to Globe Indemnity, and that a stay of the counsel fee award should have been granted.

Plaintiffs claim that they purchased or traded the vehicle involved in the accident, a Lincoln Town Car, for an "undrivable" Mercury Sable on August 15, 2002. Plaintiff further claims that she transferred title to the Lincoln Town Car to Porchtown by signing the certificate of ownership on December 1, 2002, two weeks before the accident. It is undisputed that the Division of Motor Vehicles (DMV) records reveal that the Lincoln was registered to plaintiff on February 20, 2002, and was not retitled to Porchtown until January 8, 2003. Nor is it disputed that the title to the Sable remained in Porchtown's name at the time of a search on January 3, 2003.

We affirm the denial of summary judgment to plaintiffs but reverse the grant of summary judgment to defendants.

According to the affidavit of both plaintiffs:

3. Anita Shover did not own any motor vehicles for many years prior to March or April of 2002. At or about that time, Anita Shover purchased from Porchtown Recyclers, Inc., a New Jersey motor vehicle dealer, a 1985 Lincoln. This automobile did not suit Anita Shover. Title was transferred back to Porchtown Recyclers, Inc. in early December, 2002.

4. In that Anita Shover, Robert Shover and Porchtown Recyclers, Inc. [were] searching for an automobile that would suit Anita Shover, Porchtown Recyclers, Inc. permitted Anta Shover to continue to operate the Lincoln Town Car that was involved in the accident as appears in the police report, dated 12/15/02.

In his deposition, Porchtown's Yard Manager, Keith Baldwin, son of the retired co-owner of Porchtown, testified that, although he did not transfer title at the DMV until after his return from vacation following the accident, title to the Lincoln was "delivered" to Porchtown "before" the accident. Robert Shover's brother, Harry, co-owner of Porchtown, also testified in his deposition that Porchtown bought "the vehicle back before the accident." According to Harry, "Porchtown owned it" because Anita transferred it back "either the end of November or beginning of December." At his deposition, Harry further testified that he signed the title on behalf of Porchtown on December 1, 2002. According to Harry, Anita was driving the Lincoln on the day of the accident, two weeks after she transferred title to Porchtown, because he gave her permission to use the vehicle while Porchtown repaired her Mercury Sable.

The question of the ownership of the Lincoln on the date of the accident is essentially one of credibility regarding when the transactions occurred, irrespective of when the paperwork was processed with the DMV. Even under the Brill standard, the credibility question is for a jury to decide:

Under this new standard, a determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. The "judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." [Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986).] Credibility determinations will continue to be made by a jury and not the judge. If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a "genuine" issue of material fact for purposes of Rule 4:46-2. Liberty Lobby, supra, 477 U.S. at 250, 106 S. Ct. at 2511, 91 L. Ed. 2d at 213. The import of our holding is that when the evidence "is so one-sided that one party must prevail as a matter of law," Liberty Lobby, supra, 477 U.S. at 252, 106 S. Ct. at 2512, 91 L. Ed. 2d at 214, the trial court should not hesitate to grant summary judgment.

[Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540 (1995) (emphasis added).]

Here, we cannot say that a jury has to reject plaintiffs' case or that the proofs were so one-sided as to require summary judgment. The issue of ownership of the Lincoln at the time of the accident is a "credibility determination," and plaintiffs presented sufficient evidence to withstand summary judgment. Moreover, we cannot say that plaintiff's misrepresentation about her employment was not material because she did not seek lost wages. See Selective Ins. Co. v. McAllister, 327 N.J. Super. 168, 178 (App. Div.) certif. denied, 164 N.J. 188 (2000) (holding that "materiality generally is a question of fact to be determined by a jury"). On the other hand, because of the relationship between plaintiffs, Robert's brother Harry, and Keith Baldwin's long-time friendship with plaintiffs, as well as the filed documents relevant to the case, there is no basis for granting summary judgment to plaintiffs. Their case also turns on their credibility.

Defendant Globe Indemnity does not expressly defend the imposition of counsel fees under the Insurance Fraud Prevention Act at this point in the litigation if the grant of summary judgment to defendants is reversed. To the contrary, there would still be open a question concerning the commission of a fraud.

Accordingly, the grant of summary judgment to defendants George Williamson, III, George Williamson, Jr. and Globe Indemnity is reversed, the denial of summary to plaintiffs is affirmed, and the matter is remanded for further proceedings consistent with this opinion.

 

Hereinafter, when we refer to plaintiff alone, we refer to Anita.

The judge had orally dismissed all plaintiffs' claims on February 4, 2005.

Keith Baldwin testified that his father transferred some of his interest in Porchtown to Keith and that he was Harry's partner. He also testified that Harry and Robert's father had previously owned the business and that Robert "has been in the business longer" than Keith who knew Robert and Anita for at least thirty years.

As the issue is not raised, we do not comment upon the impact of the fact plaintiff remained registered owner until after the accident occurred, even if title was transferred before. See N.J.S.A. 39:6B-1(b).

It also appears, although it is not clear, that plaintiffs seek to vacate the judgment against the governmental entities because plaintiff was not uninsured and can bring an action against all defendants. The entire argument against the Township and County reads:

IV & V. THE FEBRUARY 4, 2 005 ORDER OF FINAL.J.DGMENT IN FAVOR OF GLOBE INDEMNITY COMPANY ENTERING JUDGMENT IN THE SUM OF $23,000.00 AGAINST PLAINTIFFS, ANITA J. SHOVER AND ROBERT SHOVER, SHOULD BE VACATED. THE ORDER OF MARCH 29, 2005 A) AFFIRMING THE GRANT OF SUMMARY JUDGMENT TO GEORGE R. WILLIAMSON 3RD AND GEORGE WILLIAMSON, JR.[;] B) REINSTATING THE JUDGMENT IN THE SUM OF $23,000.00 OF GLOBE INDEMNITY AGAINST ROBERT SHOVER; C) GRANTING TO PLAINTIFFS A STAY OF POST JUDGMENT PROCESS ON THE JUDGMENTS IN FAVOR OF GLOBE INDEMNITY AGAINST ANITA SHOVER AND ROBERT SHOVER FOR FORTY-FIVE DAYS FROM THE DATE OF THIS ORDER; AND D) DISMISSING CLAIM OF ANITA SHOVER AND ROBERT SHOVER AGAINST THE TOWNSHIP OF FRANKLIN AND THE COUNTY OF GLOUCESTER, SHOULD BE VACATED.

Plaintiffs rely upon the argument set forth in Point I of their brief to support the position that the orders mentioned in this point should be vacated.

Point I reads:

I. THE TRIAL COURT ERRED IN DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT SEEKING A DECLARATION THAT ANITA J. SHOVER WAS NOT THE OWNER OF THE 1985 LINCOLN TOWNCAR INVOLVED IN THE ACCIDENT ON THE DATE OF THE ACCIDENT; SEEKING NO FAULT BENEFITS AGAINST GLOBE INDEMNITY COMPANY AND SEEKING UNDERINSURANCE MOTORIST COVERAGE AGAINST GLOBE INDEMNITY COMPANY[.]

There is no mention of the County or Township in plaintiffs' Point I, and we see no basis for reversing the dismissal as to these defendants which are additionally protected by the Tort Claims Act.

(continued)

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A-4483-04T3

May 5, 2006