KEVIN COLEMAN v. FIRST TRENTON INDEMNITY COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5410-04T15410-04T1

KEVIN COLEMAN,

Plaintiff-Respondent,

v.

FIRST TRENTON INDEMNITY CO.,

Defendant-Appellant.

________________________________

 

Argued April 5, 2006 - Decided July 26, 2006

Before Judges Wefing, Wecker and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Union County,

Docket No. L-0225-05.

Jerald J. Howarth argued the cause

for appellant (Hahn & Howarth, attorneys;

Mr. Howarth, on the brief).

Craig J. Kobrin argued the cause for

respondent (Lord & Kobrin, attorneys;

Mr. Kobrin, on the brief).

PER CURIAM

Defendant First Trenton Indemnity Company appeals from the order of the Law Division requiring it to arbitrate plaintiff Kevin Coleman's uninsured motorist ("UM") claim. After reviewing the record and considering the prevailing legal standards, we reverse.

The facts are not disputed. Plaintiff was involved in an automobile accident on September 10, 2002, when he was on his way to begin his shift as a East Orange Police Officer. According to plaintiff, a white pickup truck ran a stop sign, forcing the car in front of plaintiff's car to stop abruptly, thereby causing plaintiff to collide with it. The car plaintiff rear-ended was driven by Thaddeus J. Gnida, an off-duty Maplewood police officer.

At his deposition, plaintiff indicated that Gnida was able to write down the white pickup truck's license plate number. In fact, the police report of the accident described the truck as a "1989 White Ford Pickup" owned by Michael Sciancalepore. Two days after the accident, plaintiff signed two traffic summonses against Sciancalepore charging him with failure to stop at a stop sign, contrary to N.J.S.A. 39:4-144, and careless driving, contrary to N.J.S.A. 39:4-97. The summonses were issued by the Township of Union and were scheduled for trial before its municipal court. The summonses were eventually dismissed by the municipal court, because Gnida, the only direct witness, failed to appear to give testimony as to what he saw on the date of the accident.

On March 20, 2003, six months after the accident, plaintiff filed a negligence suit against Sciancalepore in Superior Court. On March 19, 2004, almost a year to the date of plaintiff filing his negligence action against Sciancalepore, the court dismissed the negligence suit on Sciancalepore's motion for summary judgment, which was unopposed by plaintiff.

Throughout this entire time period, plaintiff never contacted defendant regarding the occurrence of the accident, or the two related court proceedings. On April 27, 2004, defendant was finally put on notice of the accident when plaintiff made a demand for UM coverage under the policy.

For purposes of triggering UM coverage under the policy issued by defendant an "uninsured motor vehicle" is defined as a highway vehicle which at the time of the accident: (1) has no insurance coverage; (2) has been denied coverage by its insurer, or the carrier is insolvent; or (3) is a "hit-and-run" vehicle. The policy further defines "hit-and-run" vehicle as a "highway vehicle . . . which causes bodily injury to an insured if neither the owner nor operator can be identified at the time of the accident." (Emphasis added).

In light of this clear language, defendant denied plaintiff's UM claim, determining that because both plaintiff and Gnida had identified Sciancalepore as the owner and possible operator of the white pickup, plaintiff was not covered under the policy.

In response, plaintiff filed an Order to Show Cause and verified complaint before the Law Division, seeking a court order directing defendant to submit his UM claim to arbitration. The court granted plaintiff's application, finding the issue to be within the scope of the arbitrator's authority. We now reverse.

In an addition to the terms of the policy issued by defendant, N.J.S.A. 39:6-78 requires a claimant for UM coverage to show that he or she has been involved in an accident arising out of an automobile, which has resulted in either death or personal injury and the identity of the [other] motor vehicle and of the operator and owner thereof cannot be ascertained. Defendant argues that plaintiff has consistently identified Sciancalepore as the owner and operator of the vehicle that caused the accident. Plaintiff now asserts that Sciancalepore has been absolved of any responsibility for this accident, leaving plaintiff with a viable UM claim.

We consider defendant's position correct. That Sciancalepore was dismissed as a defendant on a motion for summary judgment does not result in plaintiff's accident being the result of a hit-and-run driver. The record before us does not account for plaintiff's apparent decision not to oppose Sciancalepore's summary judgment motion. The consequences of that decision, however, does not translate into liability on defendant's part for UM coverage.

As noted earlier, the salient facts are clear and undisputed. Because determining whether there is UM coverage under these facts requires only a purely legal analysis, O'Connell v. N.J. Mfr.'s Ins. Co., 306 N.J. Super. 166, 173 (App. Div. 1997) certif. granted, 153 N.J. 405 (1998), appeal dismissed, 157 N.J. 527 (1998), we exercise our original jurisdiction and conclude that plaintiff's claim cannot stand as a matter of law. The accident here did not involve a "hit-and-run," as that term is defined in the First Trenton policy.

Reversed.

 

The police report also listed Sciancalepore's address, which we decline to disclose here in the interest of protecting his privacy. Michael Sciancalepore is erroneously referred to as "Michael Sciancaleme" in the police report and traffic summons.

(continued)

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A-5410-04T1

July 26, 2006