DAVID RODRIGUEZ v. OCEAN RISK RETENTION GROUP, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4474-11T2

DAVID RODRIGUEZ,

Plaintiff-Respondent,

v.

OCEAN RISK RETENTION GROUP, INC.,

Defendant-Appellant.

___________________________________________________

December 20, 2012

Argued December 11, 2012 - Decided

Before Judges Fisher and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1210-11.

Sunil S. Tilak argued the cause for appellant (Stern, Lavinthal & Frankenberg, attorneys; Mr. Tilak, on the brief).

Stephen M. Tatonetti argued the cause for respondent (DuBois, Sheehan, Hamilton, Levin & Weissman, attorneys; Mr. Tatonetti, on the brief).

PER CURIAM

Defendant Ocean Risk Retention Group, Inc., appeals an order that declared plaintiff David Rodriguez was entitled to uninsured motorist (UM) coverage on a policy issued by defendant to Al's Cab, Inc. (the cab company). In its appeal, Ocean Risk argues that the evidence did not support the trial judge's finding, made at the conclusion of an evidentiary hearing, that Ocean Risk approved plaintiff's addition to the cab company's policy. We reject Ocean Risk's argument and affirm.

The record demonstrates that, on September 12, 2008, plaintiff was driving a taxi on behalf of the cab company in Camden when the taxi was struck by an uninsured vehicle, causing plaintiff to sustain injuries. The parties agreed that plaintiff's entitlement to the UM benefits of Ocean Risk's policy turned on whether the cab company had taken the appropriate steps to notify Ocean Risk of the addition of plaintiff as a driver. The competing certifications of Jose Espinal, the cab company's president, and Anabela Jaco-Fuentes, an employee of Renaissance Retention Group, Inc., Ocean Risk's managing agent, were submitted to the trial judge and revealed a dispute as to whether Espinal properly and timely requested that Ocean Risk add plaintiff as a covered driver.

An evidentiary hearing was conducted to resolve this pivotal factual dispute. Plaintiff called Espinal, who testified that he telephoned Jaco-Fuentes to advise that plaintiff was being hired and to request coverage on the existing policy. Espinal testified that Jaco-Fuentes verbally approved plaintiff as a covered driver. Espinal also testified that this oral request was consistent with past practice when hiring new drivers.

Jaco-Fuentes was not called to testify. Instead, the parties stipulated to the admission of her certification. In her certification, Jaco-Fuentes asserted that the cab company's insurance policy with Ocean Risk required written notice of the addition of any drivers. She also acknowledged, however, that during the policy period, thirty-seven additional endorsements were permitted, "approximately five of which were based off a telephonic rather than written request." In addition, Jaco-Fuentes certified that her practice upon receiving such a request was to seek a driver's abstract for the individual to be added and, only if the abstract proved acceptable, would the policy be amended to include the individual. Jaco-Fuentes asserted that she sought an abstract for plaintiff on April 22, 2009 -- seven months after the accident in question -- and that plaintiff's driving record precluded his addition to the policy. She also certified that, "[b]ased on [her] recollection, [she] never received a telephone call or message from the named insured requesting that [p]laintiff be added to the schedule prior to April of 2009."

The trial judge found Espinal to be credible and determined that Ocean Risk permitted the addition of drivers by oral request, as occurred here. The judge also found that Espinal testified credibly that he sought Jaco-Fuentes's approval prior to hiring plaintiff.1 These findings are entitled to our deference, Pomerantz Paper Corp. v. New Community Corp., 207 N.J. 344, 362 (2011); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974), and conclusively establish that plaintiff was entitled to UM benefits under Ocean Risk's policy.

1Ocean Risk correctly argues that the judge did not identify the specific date on which Espinal telephoned Jaco-Fuentes regarding the addition of plaintiff to the policy. That is true, as is the fact that Espinal also did not specify the date that he made the telephone call. But the unmistakable thrust of Espinal's testimony, as well as the judge's finding, was that the telephone call -- during which Jaco-Fuentes approved plaintiff for coverage -- occurred prior to the date of the accident.