STEPHEN OAKES v. FRANCIS MULRENNAN TAYLOR OIL COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STEPHEN OAKES,

Plaintiff-Appellant,

v.

FRANCIS MULRENNAN, TAYLOR

OIL COMPANY, FORD MOTOR

COMPANY,

Defendants,

and

ZURICH INSURANCE COMPANY,

Defendant-Respondent.

November 18, 2013

Argued October 8, 2013 Decided

Before Judges Alvarez and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-163-11.

Michael J. Paragano argued the cause for appellant (Pellettieri, Rabstein & Altman, attorneys; Anne P. McHugh, on the brief).

James P. Lisovicz argued the cause for respondent (Coughlin Duffy LLP, attorneys; Mr. Lisovicz, of counsel and on the brief; Brooks H. Leonard, on the brief).

PER CURIAM

Plaintiff Stephen Oakes appeals the September 14, 2012 Law Division grant of summary judgment to defendant Zurich Insurance Company on its motion to dismiss his complaint seeking damages for personal injury. We affirm for the reasons stated by Judge Honora O'Brien Kilgallen, with only brief comment.

On January 12, 2009, in the middle of the day, Oakes regained consciousness while on the shoulder of the road in front of his work truck. He was confused and disoriented, did not remember anything that happened after he had pulled over to inspect his vehicle and walked in front of it for that purpose. Police were called after Oakes was stopped by his work crew while driving his truck erratically.

Oakes remembered trying to stand up in front of his vehicle and hearing a man who was walking by shouting at him. He described the statement thus: "Taylor and oil truck, like oil truck, Taylor, but as I said, even then it was just Taylor and oil truck."

Oakes had a wound on the back of his head behind his ear. When taken to the hospital for treatment, Oakes told hospital personnel that he had been struck by the side mirror of a truck, fell down, and was confused and dizzy as a result.

Eyewitnesses were never located. Zurich's policy with Oakes's employer included a New Jersey uninsured and underinsured motorist coverage endorsement as required by N.J.S.A. 17:28-1.1.

In reaching her decision to dismiss plaintiff's complaint against Zurich, Judge Kilgallen noted that Taylor Oil had been earlier granted summary judgment dismissing plaintiff's claims against it because Oakes was unable to establish that a Taylor Oil truck was involved.1 Judge Kilgallen also noted that the doctor's report drew no conclusions regarding the manner in which the injury was inflicted. Nothing about the injury per se established causation. The doctor's report only reiterated Oakes's description of how the injury was inflicted: that an unidentified passerby told Oakes that he had been struck by a Taylor Oil truck. As Judge Kilgallen further observed, the statement, if admissible at all, would only be admissible against Taylor Oil, not Zurich. Even in the police report, Oakes was quoted as repeating the passing stranger's comments that the incident involved a Taylor Oil truck.

As Oakes readily admitted at deposition, he believed his injuries were caused by a blow behind the head because that is what he was told. He does not remember anything that occurred between when he walked in front of his vehicle and when he came to. Although mindful of the case law regarding uninsured motorists claims and corroboration, Judge Kilgallen stated: "[T]here has to be some initial story . . . that is consistent and somewhat trustworthy. And then yes, you don't have to have corroboration beyond that, as long as there's an initial . . . version of what occurred." She continued:

[T]he only thing that's left is [] Oakes as against Zurich, and there's no evidence at all that [] Oakes was struck by some phantom vehicle. So that being the case, I don't find that there are any issues of material fact which would cause me to say that summary judgment is not appropriate here. I think there is no evidence, credible evidence that could be submitted to a jury on an uninsured motorist claim.

On appeal, Oakes contends that the judge erred both in finding that the passerby's statement was inadmissible, and that the statement, if admissible at all, was only admissible against Taylor Oil. We agree that no basis exists for the admission of the statement against Zurich. It follows that no basis exists for an uninsured motorist claim, and thus we affirm. We address only the above two points on appeal, finding the remaining contentions of error to not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

In establishing an uninsured motorist claim, a plaintiff must prove "that his or her injuries were caused by an 'accident;' and, second . . . that the accident arose from the ownership, maintenance, operation or use of an uninsured vehicle." Livsey v. Mercury Ins. Grp., 197 N.J. 522, 531 (2009). In this case, neither prong was met.

First, there is no proof that Oakes's injuries did not result from some happenstance other than an accident with a motor vehicle, such as a slip and fall, illness, or being struck by a rock. When he came to the attention of his co-workers because of his dazed condition, Oakes was actually driving his work truck and had left the area where the incident occurred. Oakes's treating physicians could not opine, based on the nature of his injuries, the manner in which the initial blow was inflicted.

Oakes has no independent memory of the event. He could not identify the passerby. Oakes obviously relied upon the accuracy of the passerby's perceptions and the truthfulness of his statement without knowing anything about his vantage point or bona fides.

Secondly, the "proof" supplied by the unidentified passerby was not that an uninsured vehicle struck him, but that a Taylor Oil truck struck him. This is not proof of the existence of a phantom, uninsured vehicle. The Taylor Oil truck was insured but earlier dismissed from the case because no factual connection was established between it and Oakes's injury. Accordingly, Oakes has not demonstrated that his injuries result from an accident, or that the accident was caused by an uninsured vehicle. See ibid.

Moreover, N.J.R.E. 803(c)(2) authorizes the admission of excited utterances only when the proponent establishes an adequate foundation for admission. No such foundation has been established. At a minimum, proof is required that the statement was made "while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." Ibid.; see also State ex rel. J.A., 195 N.J. 324, 340 (2008).

The lapse in time and opportunity to deliberate or fabricate are questions in this case for which there simply are no answers. We do not know the length of time between the alleged incident and the statement. See State v. Branch, 182 N.J. 338, 366-67 (2005) (indicating that in determining admissibility of an excited utterance, a judge must decide if the declarant had the opportunity for deliberation, reflection, or misrepresentation; in other words, whether the statement truly is spontaneous and made under the stress of the moment). For all Oakes knew, the declarant made the statement in an effort to protect himself from liability. The excited utterance exception to the hearsay rule is merely that, not a mechanism that authorizes the wholesale admission of hearsay from unknown persons whose vantage points and bona fides are unavailable. Furthermore, the statement was made to an interested party, Oakes, who heard it when he was dizzy, confused, and dazed.

In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the 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," summary judgment must be granted. R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 533-35 (1995).

In this case, Oakes's repetition of the purported excited utterance by the unknown pedestrian does not establish the existence of a second vehicle. No disputed material issue of fact sufficient to prevent summary judgment was demonstrated. His iteration of what he was told is not sufficient to require Zurich to extend coverage pursuant to its policy as a matter of law. Summary judgment was, therefore, properly granted.

Affirmed.

1 We know from the judge's findings of fact only that when police located a Taylor Oil truck near the site where Oakes came to, the GPS in the vehicle established it was not in the area at the relevant time.