THAMON WRIGHT v. AARON WRIGHT, LISA WRIGHT and NEW JERSEY MANUFACTURERS INSURANCE CO NEW JERSEY MANUFACTURERS INSURANCE COMPANY v. THAMON WRIGHT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5206-08T35206-08T3

THAMON WRIGHT,

Plaintiff-Appellant,

v.

AARON WRIGHT, LISA WRIGHT,

Defendants,

and

NEW JERSEY MANUFACTURERS

INSURANCE CO.,

Defendant-Respondent.

NEW JERSEY MANUFACTURERS

INSURANCE COMPANY,

Plaintiff-Respondent,

v.

THAMON WRIGHT,

Defendant-Appellant.

 

Argued January 4, 2010 - Decided

Before Judges Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket Nos. L-972-06 and L-412-08.

Stephen W. Guice argued the cause for appellant.

Joseph D. Connell, Jr. argued the cause for respondent (Law Office of Robert R. Nicodemo III, attorneys; Richard V. Cosentino, on the brief).

PER CURIAM

Plaintiff Thamon Wright (Thamon) filed an action against defendants Aaron Wright (Aaron) and Lisa Wright (Lisa) to recover damages for personal injuries suffered as a result of a June 26, 2004 incident in which his legs became caught beneath a truck driven by Aaron and owned by Lisa. In a separate count of the complaint, Thamon also sought to compel defendant New Jersey Manufacturers Insurance Company (NJM) to pay personal injury protection (PIP) benefits on account of medical expenses he incurred from his injuries. NJM filed a separate proceeding seeking a declaratory judgment relieving it of the obligation to pay underinsured motorist (UIM) benefits to Thamon. The two cases were consolidated, and NJM obtained summary judgment on April 3, 2009. Thamon's motion for reconsideration of the grant of summary judgment was denied on May 15, 2009. After review of the record and relevant law, we now reverse.

The following facts, relied upon by the motion judge, are taken from the police reports, answers to interrogatories, and depositions. Thamon, Aaron, Tamika Joyce (Tamika) and Joseph Joyce (Joseph) were drinking during the early morning hours prior to the incident in question. In fact, Thamon, who was not part of a group with the others, claimed that while at a particular bar, he socialized with them and purchased a round of drinks for Aaron and Tamika. He recalled that Joseph was unconscious from drinking by the time he encountered the group in the bar. After that, they again went their separate ways.

At approximately 5:30 a.m., Aaron drove Tamika to pick up her car at her home. Thamon's vehicle was parked in the driveway, although it partially extended out into the street, effectively blocking the front of Aaron's truck. After the incident, Aaron told the investigating officer that when Tamika saw Thamon, she told Aaron to keep going, but that he stopped anyway because he did not think anything was wrong. Aaron pulled in front of the house and hugged Tamika. She got out of his truck. At this point, the accounts begin to diverge.

When the investigating officer asked Tamika whether she had witnessed an altercation between Thamon and Aaron, she stated only that she saw Aaron and Thamon speaking. She then observed Aaron's vehicle pull forward and strike Thamon's vehicle.

Aaron told the investigating officer that he heard Thamon asking him to lower his driver's side window after he hugged Tamika. Aaron did so, at which point Thamon reached into the truck cab and began to punch and strike him, while trying simultaneously to open the truck door and pull Aaron out of the vehicle. Although Aaron's answers to interrogatories contained the same basic scenario, he added that when he put the truck into drive and attempted to leave, Thamon "yanked" the wheel to the left, causing Aaron's truck to strike Thamon's truck. Aaron backed up with the door swinging open and Thamon hanging on, and saw that Thamon's legs "got caught" under the driver's side door. Aaron immediately drove to the police station, where he filed a complaint for assault against Thamon and reported the accident. Photographs were taken of the injuries to Aaron's face.

Thamon claims that although he does not recall striking Aaron, if he did so, it was because Aaron crashed into his vehicle as he hung onto the door. In other words, if he inflicted any blows upon Aaron it was unintentional, the incidental by-product of Aaron driving away while he was hanging onto his truck door.

Aaron acknowledges that he saw that Thamon was injured as he backed up before he drove to the police station. When police arrived at Tamika's house, Thamon, who smelled of alcohol, initially refused medical treatment. Eventually he was driven to the hospital by someone at the scene. Thamon categorically denies having threatened Aaron, somewhat more equivocally denies having struck Aaron, but unequivocally asserts that any force used against Aaron was not intentional.

Thamon submitted Tamika's certification in support of his application for reconsideration. In it she reiterates that she did not see Thamon strike or punch Aaron. Aaron and Thamon filed cross-complaints in municipal court charging simple assault. "Not guilty" entries appear in the record as to both complaints, but it is unknown if the matters were tried or dismissed by agreement.

Thamon's automobile insurance policy states as follows concerning PIP benefits:

C. PEDESTRIAN PERSONAL INJURY PROTECTION COVERAGE

. . . .

EXCLUSIONS

A. We do not provide Personal Injury Protection Coverage for bodily injury:

1. To any insured

a. Whose conduct contributed to the bodily injury in any of the following ways:

. . . .

(2). While acting with specific intent to cause injury or damage to himself or others.

The UIM coverage section of the policy states that NJM will compensate Thamon for damages inflicted by an underinsured motor vehicle as a result of "bodily injury sustained by an insured and caused by an accident." Unlike the PIP benefits section of the NJM policy, the relevant language of the UIM section does not contain an exclusion for intentional conduct.

The court granted summary judgment on the basis that Tamika's testimony was equivocal, Aaron absolutely stated that he was assaulted, and Thamon denied being able to remember the precise circumstances. The motion judge therefore concluded that there was no issue of fact that Thamon struck Aaron purposefully, thereby intentionally inflicting bodily injury on Aaron and barring Thamon from PIP benefits pursuant to the policy. In the judge's view, the fact that Thamon said he could not remember what occurred was not sufficient to "create an issue of material fact." The judge relied upon the photographs of Aaron's injuries as support for her conclusion that the incident occurred as Aaron described it and did not occur as described by Thamon and Tamika.

On the motion for reconsideration, Thamon reiterated that if he struck Aaron, it was not intentional, but the outcome of Aaron having attempted to drive away while Thamon was holding onto the vehicle door. The judge summarily denied the reconsideration motion.

Thamon asserts on appeal that the court erred because a genuine issue of material fact existed as to whether he purposefully struck Aaron. Thamon also contends that the court erred in failing to differentiate between the separate standards for payment of UIM coverage and PIP benefits expressed in the NJM policy.

We review the grant of summary judgment using the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998) (citation omitted). Where "there is no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law," summary judgment should be granted. R. 4:46-2(c). We must decide whether a genuine issue of material fact exists and, if not, whether the trial court properly applied the law. See Prudential, supra, 307 N.J. Super. at 167-70. In so doing, we view the evidence in the light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We accord no deference to the motion judge's conclusions on issues of law, which we review de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007). In ruling on a motion for summary judgment, a trial court must decide whether a genuine issue of fact exists based on the record, not by weighing the plausibility of either side's position. See Brill, supra, 142 N.J. at 540.

Judgments regarding the credibility of the evidence presented should be made only by a factfinder during the trial, not by the motion court. Ibid. Where a credibility question arises from an individual witness's inconsistent or recanting statements, for example, the motion court may not decide which of the two versions is the more credible. Conrad v. Michelle & John, Inc., 394 N.J. Super. 1, 13 (App. Div. 2007). The same principle applies between witnesses; the motion judge may not decide which witness's version is more likely to be true. See Universal Underwriters v. Heibel, 386 N.J. Super. 307, 321-23 (App. Div. 2006).

We conclude that the various statements made by the three witnesses have created a genuine issue of material fact. In choosing Aaron's version of the incident over those proffered by Thamon and Tamika, the motion judge resolved the factual conflict by making impermissible credibility determinations. Admittedly, Thamon's deposition testimony was not decisive; he stated that he did not remember striking Aaron and that if he did, it was not intentional but merely a by-product of the movement of the car. Because the motion court attributed Thamon's conduct to a real or imagined romantic entanglement with Tamika, she concluded that Thamon's somewhat equivocal statements, or lack of memory, were designed merely to avoid the consequences of his assault. The judge found Tamika's initial statement to police, as well as her later certification, to be of little or no import because she perceived Tamika to indicate that she did not see anything happen, rather than to be affirmatively stating that nothing actually happened. Additionally, because the photographs clearly depicted injuries to the left side of Aaron's face, the judge concluded the physical evidence corroborated his truthfulness and, therefore, the untruthfulness of Thamon's testimony.

The court's analysis indisputably hinged on credibility. The motion judge acted as a factfinder, sifting through conflicting versions, deciding which were credible. Thamon's proofs may be weak; however, they have sufficient strength to withstand NJM's motion for summary judgment on Thamon's PIP claim application. Tamika's certification, provided in support of Thamon's reconsideration motion, was sufficient to raise a genuine issue of material fact, thus warranting the grant of that motion.

Thamon also asserts the court erred by failing "to recognize and differentiate" between the separate standards for payment of PIP and UIM benefits. In response, NJM contends that because Thamon instigated the series of events which culminated in the accident that caused his injuries, he is not entitled to UIM benefits. An insured is entitled to UIM coverage when injured as a result of "an accident." N.J.S.A. 17:28-1.1e. This statutory provision is mirrored in Thamon's policy.

Even though NJM attempts to characterize Thamon's injuries as the consequence of his intentional conduct, the injuries were the immediate consequence of Aaron's act of driving forward, colliding with Thamon's vehicle, and then backing up. There is no dispute that Aaron's conduct, the proximate cause of Thamon's injuries, was accidental. Therefore, the court's summary judgment ruling that Thamon was not entitled to UIM benefits also issued in error.

 
Reversed.

The underlying claim as to Aaron was resolved and is not a part of this appeal.

Thamon is not related to either Aaron or Lisa. The Joyces are brother and sister.

(continued)

(continued)

10

A-5206-08T3

February 22, 2010