VALERIE CHEEK v. NJ CURE INSURANCE COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2629-07T22629-07T2

VALERIE CHEEK,

Plaintiff-Respondent,

v.

NJ CURE INSURANCE COMPANY,

Defendant-Appellant.

___________________________

 

Submitted December 8, 2008 Decided

Before Judges Lisa and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2328-07.

Green, Lundgren & Ryan, P.C., attorneys for appellant (Francis X. Ryan and Alexa J. Nasta, on the brief).

Wood, Brown & Gray, P.C., attorneys for respondent (Thomas E. Brown, on the brief).

PER CURIAM

Plaintiff Valerie Cheek filed a summary action, pursuant to Rule 4:67-1, by way of verified complaint and order to show cause (OTSC) against defendant, NJ Cure Insurance Company, seeking to compel payment of personal injury protection (PIP) benefits under N.J.S.A. 39:6A-4. The policy under which she seeks to recover benefits was issued to her long-term partner, Grover Brown, and listed her as a second driver on the declarations page. The trial court awarded judgment to plaintiff on the return date of the OTSC, despite disputed issues of material fact and the lack of consent by defendant to disposition by way of summary action. We therefore reverse and remand.

Briefly, on February 21, 2006, plaintiff fell and was injured while holding onto her car door handle. The vehicle was then parked at a lot adjacent to a Sam's Club retail store. The question of whether plaintiff was entering the vehicle, which would entitle her to PIP benefits, or merely grabbed at the handle after she began to slip, which would exclude her from coverage, is disputed. See N.J.S.A. 39:6A-4. Defendant claims that plaintiff supplied conflicting versions of the incident when interviewed by a representative of Sam's Club, her treating physician, and an insurance company representative. The dispute is material as the answer to the question determines whether this insurer must pay PIP benefits. Defendant also contends that the policy maintained by plaintiff's daughter, an adult member of her household, is the appropriate source of PIP benefits.

The verified complaint was filed on September 27, 2007. The OTSC was made returnable on December 14, 2007. In the interim, the parties engaged in limited discovery, including the deposition of plaintiff.

Defendant's attorney consented to waiving oral argument on the OTSC. He did not consent, however, to the matter being fully disposed of in summary fashion, although to the trial judge it may have appeared that he did. In fact, in the brief filed by defendant in opposition to the OTSC, counsel specifically referred to "genuine issues of material fact that preclude the entry of judgment in favor of the plaintiff on a summary basis." Defendant's attorney also stated in the brief that it was "premature to enter judgment ordering defendant to pay PIP benefits" due to the factual disputes.

On December 17, 2007, when the court issued its oral decision, it stated:

However, at this juncture the entering into issue is one of fact and it is a muddy, muddled area, but that is not going to be dispositive.

With respect to entering into, there are cases about it and so forth, but the plaintiff's testimony and the reports and so forth, I deem as unpersuasive and I would

. . . order [defendant] to pay with respect to the entering into aspect. . . . The entering into is just of no it is not sufficient here to protect [co-defendant].

Even in a summary action pursuant to Rule 4:67-1, findings of fact must be made. O'Connell v. N.J. Mfrs. Ins. Co., 306 N.J. Super. 166, 172 (App. Div. 1997), appeal dismissed, 157 N.J. 537 (1998). Here, no findings of fact at all were made by the motion judge.

Furthermore, in order for the case to be disposed of in summary fashion as permitted by the rule, all parties must agree to implementation of the process, or the affidavits submitted must show "palpably that there is no genuine issue as to any material fact;" otherwise, the court cannot "render final judgment thereon." R. 4:67-5. Where a party objects to a summary proceeding, or there is a genuine issue as to a material fact, the court must hear evidence as to those matters that are contested and only then render a final judgment. Ibid.

We need not reach defendant's argument that the procedure employed here was improper in and of itself. It is sufficient to state that because defendant did not consent to summary disposition, and there was a genuine dispute as to material facts, a plenary hearing should have been conducted. The rule calls for nothing less.

Therefore, we remand the matter. At the plenary hearing, evidence shall be proffered to establish the manner of plaintiff's fall and whether she was entering the vehicle at the time. We express no view on the legal question of whether defendant is compelled to extend coverage if plaintiff fell while entering the vehicle because that issue should be revisited after a more complete record is developed.

Reversed and remanded.

Defendant informs us that the name used in the caption is in error, and that the correct name is "Citizens United Reciprocal Exchange."

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A-2629-07T2

March 4, 2009