SHARON A. WEST v. AMERIPRISE INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0150-12T3

SHARON A. WEST,

Plaintiff-Appellant,

v.

AMERIPRISE INSURANCE COMPANY/

IDS PROPERTY AND CASUALTY

INSURANCE COMPANY,

Defendant-Respondent.

____________________________________

February 6, 2014

Submitted October 29, 2013 Decided

Before Judges Sabatino and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3434-11.

Schibell Mennie & Kentos, L.L.C., attorneys for appellant (John F. McLaughlin, of counsel; Ellen D. Fertakos, on the brief).

Bennett, Bricklin & Saltzburg LLC, attorneys for respondent (Michael Gerstein, on the brief).

PER CURIAM

Plaintiff appeals a trial court's order granting summary judgment in favor of defendant dismissing her claim for uninsured motorist (UM) benefits for injuries she sustained in a collision involving her vehicle and a tree "boulder" on an overpass. Plaintiff could not identify a driver or vehicle that dropped the tree "boulder." She claims, however, that the "boulder" could not have been on the road if it was not dropped from a vehicle because the overpass was deserted, it was tree-barren, and the size and nature of the tree "boulder" made it implausible that it blew onto the roadway.

The trial court granted defendant summary judgment and ruled that the circumstantial evidence proffered by plaintiff was not sufficient for a reasonable jury to find in plaintiff's favor. It found that sending the case to the jury would invite speculation. We disagree and reverse because we believe that plaintiff's evidence was sufficient to allow a reasonable jury to find that it was more likely than not that her accident would not have occurred in the absence of negligence involving another vehicle.

I

On October 3, 2009 at approximately 12:32 p.m., plaintiff was driving her 2009 Chevrolet Cobalt westbound on Route 33 in Tinton Falls when her vehicle struck a large object which was lying in the roadway. As a result, plaintiff suffered personal injuries, and plaintiff's vehicle was damaged.

Plaintiff did not see the object until right before her vehicle collided with it. Just prior to plaintiff's collision, there was a pickup truck driving in front of plaintiff which reportedly straddled the "boulder." Otherwise, there were no other vehicles on the road. Plaintiff hit the tree boulder in the road as she was driving in the left lane of the four-lane divided overpass which crosses over the Garden State Parkway.

Plaintiff struck the tree boulder when she was approximately halfway across the overpass. The overpass is a bridge, so there were no trees or other vegetation on either side of it. The overpass is only open to vehicles, and there are no sidewalks.

After the collision, plaintiff called 9-1-1. Officers dispatched to the scene located the object. The object was determined to be a large portion of a tree, described in the police report as a "large tree limb." Plaintiff later described the object as a "boulder." The tree "boulder" was squared because it had been cut.

At the time of the accident, plaintiff had an insurance policy with defendant. Plaintiff's insurance policy provided UM coverage in the amount of $15,000 for each person. The policy provides:

We will pay damages for bodily injury and property damage caused by an accident which the insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle . . . arising out the ownership, maintenance or use of that vehicle.

The policy defines a UM vehicle as "a land motor vehicle or trailer of any type" which is a "hit-and-run vehicle whose operator or owner cannot be identified and which hits, or causes an accident resulting in bodily injury[.]"

II

Plaintiff argued that it was more likely than not that the tree boulder came onto the roadway as the result of a phantom vehicle's operator's negligence. However, in her opposition to defendant's motion, plaintiff admitted that she did not know how the tree "boulder" landed in the road. Plaintiff also could not identify any individuals or vehicles that had any involvement with transporting the tree "boulder." Instead, plaintiff cited the police report prepared after the accident, photographs of the overpass where the accident occurred, a vehicle repair invoice, and the fact that the tree "boulder" was reportedly cut.

The trial court granted summary judgment to defendant, finding that plaintiff's proofs were not sufficient to demonstrate a genuine issue of fact that a phantom vehicle caused the accident. The court reasoned:

the jury would be speculating in terms of how [the tree boulder] got into the road . . . . I think they'd be speculating in terms of that it came there from a car and that certainly, they'd have to speculate in terms of whether it fell out by accident or whether it was put there intentionally. I just we have no evidence whatsoever in terms of how it got there.

III

We believe that the information contained in plaintiff's opposition to defendant's motion for summary judgment provided enough evidence to create a genuine issue as to a material fact. Summary judgment must be granted "if 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." R. 4:46-2(c). The appropriate inquiry must determine "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 533 (1995)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). The court must review the evidence presented "in the light most favorable to the non-moving party." Brill, supra, 142 N.J. at 540.

On appeal, this court must review summary judgment orders de novo using the same standards applied by the lower courts. NAACP of Camden Cnty vs. Foulke Mgmt. Corp., 421 N.J. Super. 404, 430-31 (App. Div. 2011), appeal dismissed, 213 N.J. 47 (2013). No special deference will be accorded to the trial judge's assessment of the record, because the trial judge's decision amounts to a ruling on a question of law rather than a determination of the credibility of testimony rendered in court. See Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

IV

Applying that standard here, we disagree with the trial court's conclusion that plaintiff's opposition to defendant's summary judgment motion could not rationally establish plaintiff's entitlement to UM benefits. New Jersey requires automobile insurance providers in the state to include UM coverage for injuries "caused by accident and arising out of the ownership, maintenance, operation or use of such uninsured or hit and run motor vehicle[.]" N.J.S.A. 17:28-1.1(a)(2). "[A]n insured who seeks UM benefits must satisfy a two-prong test." Livsey v. Mercury Ins. Grp., 197 N.J. 522, 531 (2009). First, the injuries to the victim must have been caused by an accident. Ibid. Second, the accident must have arisen from the "ownership, maintenance, operation or use of an insured vehicle." Ibid.

Insurance policies are to be "construed liberally" in favor of the insured to the "full extent that any fair interpretation will allow." Progressive Cas. Ins. Co. v. Hurley, 166 N.J.260, 273 (2001) (quoting Kievit v. Loyal Protective Life Ins. Co., 34 N.J.475, 482 (1961)). The term "accident" is therefore broadly construed and is determined from the perspective of the insured. Livsey, supra, 197 N.J. at 531. Accordingly, even if a tortfeasor intentionally dropped the tree "boulder" in the road, from a vehicle it would be deemed an accident for UM coverage purposes. Id. at 531-32. Plaintiff's opposition to defendant's summary judgment therefore established at least a legitimate question of fact that an accident occurred.

We are equally satisfied that her opposition also created a question of material fact as to the second prong's requirement that there be a "substantial nexus" between the accident and "the ownership, maintenance, operation or use of an uninsured vehicle." Id. at 533-34. The phrase "arising out of," as used in defendant's policy is also broadly interpreted to mean that there must be a "substantial nexus" between the injury and the use of the uninsured vehicle in order to invoke UM protections. Westchester Fire Ins. Co. v. Cont'l Ins. Cos., 126 N.J. Super.29, 38 (App. Div. 1973), aff'd65 N.J.152 (1974); seeN.J.S.A. 17:28-1.1(a)(2). What constitutes a "substantial nexus" varies depending upon the circumstances.

For example, shooting a gun from an automobile's window is not sufficiently connected to the use of a vehicle to invoke UM protections. Livsey, supra, 197 N.J. at 535. Similarly, stabbing a victim from a car window or punching someone in a vehicle is not sufficiently connected to the use of a vehicle to invoke UM protections. Vasil v. Zullo, 238 N.J. Super. 572 (App. Div. 1990); Cerullo v. Allstate Ins. Co., 236 N.J. Super. 372 (App. Div. 1989). Conversely, throwing sticks out of a window causing injury to a bicyclist may be sufficiently connected to the use of a vehicle to invoke UM protections. Westchester, supra, 126 N.J. Super.at 38. (finding no evidence to suggest that passenger who threw a stick out of a window intended to harm child).

Our case law relating to UM coverage thus recognizes that "[i]n our mobile society the act of throwing or dropping objects from moving vehicles is not such an uncommon phenomenon that such occurrence may not be anticipated, nor so inconsequential that members of the public need no financial protection from the consequences thereof." Id.at 38-39. However antisocial it may be to throw objects out of windows, it is "a sufficiently foreseeable consequence of the use of the vehicle to mandate coverage[.]" Id.at 39.

Other courts share the same view. For example, one court recognized that dropping logs or cut firewood in the highway may also be sufficiently connected to the use of a vehicle to invoke UM protections. Farmers Ins. Co. v. Frederickson, 914 P.2d 138, 140 (Wash. Ct. App. 1996). Another court determined that dropping a ladder on the highway may also be sufficiently connected to the use of a vehicle to invoke UM protections. Woosley v. State Farm Ins. Co., 18 P.3d 317 (Nev. 2001). Rocks propelled from vehicles have also been found to be sufficiently connected to the use of a vehicle to invoke UM protections. Hale v. Am. Family Mut. Ins. Co., 927 S.W.2d 522 (Mo. Ct. App. 1996).

Here, we are satisfied that there are sufficient facts in the record to permit a rational jury to conclude that it is more likely than not that the tree boulder came to be in the roadway because it fell from a vehicle. Although speculation is not sufficient to establish liability, La Morgese v. Kern-O-Mix, Inc., 82 N.J. Super. 581, 586 (App. Div. 1964), plaintiff provides more than a mere scintilla of evidence. She has proffered evidence that the wood was cut, that it was on an overpass with no overhead structures, that there were no nearby trees, and that no one else was present at the time of the accident except for a truck in front of her, although no one saw the tree "boulder" fall from that truck. Taken together there is sufficient circumstantial evidence that the tree "boulder" did not simply snap from a tree nor could it have because there were no trees at the overpass. Plaintiff's proofs are sufficient to allow a jury to infer that a cut tree "boulder" does not just appear on an empty overpass in the absence of negligence involving a vehicle.

Reversed and remanded.