THOMAS PAGLIA, JR. v. STATE FARM INDEMNITY COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1922-10T1

THOMAS PAGLIA, JR., and DIANE

PAGLIA,

Plaintiffs-Appellants,

v.

STATE FARM INDEMNITY COMPANY,

Defendant-Respondent,

and

MELISSA MANVELL,

Defendant.

________________________________

Argued May 11, 2011 Decided July 27, 2011

Before Judges Fuentes, Ashrafi and Newman.

On appeal from Superior Court of New Jersey,

Law Division, Ocean County, Docket No.

L-2666-09.

Kevin L. Parsons argued the cause for

appellants (Gill & Chamas, attorneys;

Mr. Parsons, of counsel and on the brief).

Thomas W. Matthews argued the cause for

respondent (Soriano, Henkel, Biehl & Matthews,

attorneys; Mr. Matthews, on the brief).

PER CURIAM

Plaintiff Thomas Paglia, Jr. was injured in an accident while riding his motorcycle. He claimed he was forced to drive his motorcycle off the road to avoid colliding with a car driven by Melissa Manvell that was traveling in the opposite direction. Both vehicles were attempting to negotiate an "S" curve when the accident occurred.

In addition to suing Manvell, plaintiff1 also filed an uninsured motorist (UM) claim against his own insurance carrier, State Farm Indemnity, alleging the accident was also caused by another unknown vehicle that failed to stop. The trial court granted State Farm's motion for summary judgment because plaintiff did not present sufficient evidence to establish the existence of the "phantom vehicle." Plaintiff settled his claims against Manvell for $100,000, the limit of her insurance coverage. Plaintiff now appeals from the order of the trial court dismissing his UM claim against State Farm. We affirm.

I

In the early evening hours of June 11, 2008, plaintiff was riding his Harley Davidson motorcycle from his home in Forked River to his father's home in Toms River, traveling on Lakeside Drive. Plaintiff described Lakeside Drive as a "very windy" one-lane road in each direction, with a speed limit of twenty-five miles per hour. Lakeside Drive has an "S turn" which, according to plaintiff, is difficult for most drivers to navigate. According to plaintiff, drivers traveling in the opposite direction than he was traveling on that evening "have a tendency to chop the corner and cross the lines," while drivers in the direction he was traveling tend to "go over the shoulder."

Plaintiff gave the following description of how the accident occurred:

I made the first S turn to the left and I'm going to make the right, which is quickly after the left, and the car had come over to my side of the road to make their left. When I saw the car, I had to make a choice. If I would turn hard to the right, I would have laid the bike down and probably been run over by the car. So, I continued in a straight line, accelerated to miss the car, which I managed, but that is the last thing I remember.

The first time plaintiff saw the vehicle that allegedly crossed over into his lane was when he was starting to make the second portion of the S turn. At that time, he estimated the front of his motorcycle was "less than 100 feet" from the vehicle. The vehicle "was a good halfway on my side of the road" at this time. Plaintiff decided to "go to the left and try to avoid the vehicle." By doing so, he drove his motorcycle across the road into the oncoming lane of traffic.

Of particular relevance here, plaintiff indicated that he did not "remember any other vehicles. Just myself and the approaching car." He does recall, however, "accelerating to miss the car." He later learned that he collided with trees on the side of the road.

Plaintiff was unable to describe the driver of the vehicle he alleges crossed over into his lane as either male or female because the event happened "too quick." The only description he had of the unknown vehicle was "an intermediate-sized car and it was reddish. It could have been burgundy. It could have been red or it could have been orange." When questioned specifically about the size of the vehicle, plaintiff responded: "mid-sized. Was it a van? It wasn't a truck. Mid-sized to compact. I don't remember it being a big car. I can't be certain. It happened too fast."

Manvell was driving her mother's gray Honda "CRC2," which she described as "a small SUV," with a passenger - her friend Jeremy Puff. At approximately 6:00 p.m., Manvell was "coming down Deer Head Lakeside Drive heading towards Route 9" in order to go to her boss' residence in Barnegat. She had driven this stretch of road "[a] handful of times." Manvell gave the following description of how the accident occurred:

I was coming up to the turn, and it's fairly slow there, it's about 35 miles an hour, I want to say, so I wasn't even in the turn yet. I was coming up to it. I started to slow down when I noticed the motorcycle come around the bend into my lane and I stopped the car. He went diagonally in front of the car and I just sat there and watched in the rear-view mirror as he went across. I didn't think he was going to go off the bike. I thought maybe he was going to go off the bike or gain control. He went diagonally in front of the car.

I looked in the rear-view mirror and watched as he went off the bike and I pulled off to the side of the road. I got out of the car and went over to him. I had my friend call 911.

Manvell estimated plaintiff's motorcycle was "probably a few hundred feet away" from her vehicle when she first saw it. She did not see any other vehicles in the area. At her deposition, she testified she was able to stop her car without slamming hard on the brakes. The police report, however, indicates she told the officer "that she slammed on her brakes and swerved to the left to avoid hitting [plaintiff]."

According to Manvell, the closest plaintiff's motorcycle got to her car was within "inches" of the "passenger's side front." She then observed the "bike hit a stump or a smaller tree and then [plaintiff] was thrown off the bike and hit the larger tree behind it." She did not see any other vehicle. She asked Puff to call 911 immediately after the accident.

II

In response to State Farm's motion for summary judgment seeking to dismiss plaintiff's UM claim, Judge Thomas E. O'Brien found there was "no proof that the accident involved a phantom vehicle." We agree.

In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs 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). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co, 142 N.J. 520, 533-35 (1995).

Plaintiff's unsupported assertion of the existence of a second vehicle does not create a disputed material factual issue sufficient to prevent summary judgment against him as to his UM claim. His description of the accident cannot be reconciled with the nebulous account of a phantom car that was not seen by the principal tortfeasor. On these facts alone, plaintiff cannot sustain a claim for UM benefits.

Affirmed.

1 Although Diane Paglia is also named as a plaintiff, we will refer to "plaintiff" in the singular because her per quod claims are derived from her status as the spouse of Thomas Paglia, Jr.

2 We presume she meant a Honda CR-V.