A-0GARY HYMAN v. PEGGY SAUNDERS and VIRGIL L BOYKIN and PROGRESSIVE GARDEN STATE INSURANCE COMPANY August 24, 2015

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

GARY HYMAN,

Plaintiff-Respondent,

v.

PEGGY SAUNDERS and VIRGIL L.

BOYKIN,

Defendants,

and

PROGRESSIVE GARDEN STATE

INSURANCE COMPANY,

Defendant-Appellant.

________________________________

August 24, 2015

Argued August 10, 2015 Decided

Before Judges Haas and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2024-13.

Allison L. Silverstein argued the cause for appellant (Ms. Silverstein, attorney; Ms. Silverstein and Steven K. Greene, on the briefs).

Angie Kandil argued the cause for respondent (Law Offices of Gregg A. Williams, attorneys; Marc J. Wisel, on the brief).

PER CURIAM

Defendant, Progressive Garden State Insurance Company ("Progressive") appeals from an order granting summary judgment1 and compelling it to provide plaintiff with Personal Injury Protection (PIP) and Underinsured Motorist (UM) coverage after he was injured as a passenger in an automobile accident. We reverse and remand.

We discern the following facts from the record. On October 1, 2012, plaintiff was involved in an accident as a passenger in a 2004 Pontiac driven by Peggy Saunders. Information about the other vehicle in the accident is unknown. As of the date of the accident, plaintiff did not own any vehicles and did not live with or have any familial relation to Peggy Saunders. The Pontiac was owned by Virgil Boykin. Progressive conducted an investigation to determine whether there was coverage available to plaintiff for his claims arising out of the accident. Progressive then denied coverage because plaintiff did not meet the definition of a named insured and because the vehicle involved was not considered a covered automobile under Policy Number 26250917.

Plaintiff filed suit against Saunders, Boykin, the unknown vehicle, and Progressive. The claim against Progressive was an assertion of entitlement to PIP and UM benefits under Policy Number 26250917. After Progressive filed an answer, plaintiff served requests for admission on Progressive, and Progressive provided responses on September 19, 2013, denying that the Pontiac was insured by Progressive. Plaintiff requested more specific responses from Progressive to admission number five, which was related to the contents of a police accident report, which Progressive had neither admitted nor denied. On September 25, 2013, Progressive sent a letter to plaintiff indicating that it was unable to admit or deny the report, and stating that the report speaks for itself.

After plaintiff moved to suppress Progressive's defenses, Progressive then provided a response to the request for more specific answers by letter dated December 18, 2013. In the response, Progressive admitted that "Virgil Boykin was the owner of a 2004 Pontiac Grand-Am insured with Progressive Garden State Insurance Company on October 1, 2012[,]" but denied that plaintiff was "entitled to PIP or UM benefits under Virgil Boykin's Progressive policy as [plaintiff] was not a resident relative or named insured under said policy."

Thereafter, plaintiff filed a motion for summary judgment to compel PIP and UM benefits, asserting that Progressive admitted that the Pontiac in which plaintiff was a passenger was insured by Progressive on the date of the accident. Progressive opposed the motion and submitted certifications. The certification from Richard Paruszek, a claims representative from Progressive, indicates that Policy Number 26250917 was written for Saunders as the named insured, not Boykin. The certification also indicates that the Pontiac was not a covered vehicle under the policy because coverage was for Saunders's 1996 Nissan. Progressive contended that plaintiff's motion should be denied because he was not an "insured person" occupying a covered vehicle. The motion court considered Progressive's argument that its December 18, 2013 response letter mistakenly represented that it provided coverage for the Pontiac and that Boykin was the insured, but the court rejected the argument, saying

I find and I believe that there is, indeed, a policy acknowledged in the request for admissions[,] . . . [and] that Progressive has a policy that covers th[e] vehicle that was involved . . . in the incident.

It's admitted that Virgil Boykin was the owner of a 2004 Pontiac Grand Am, insured with Progressive Garden State Insurance Company on October 1st of 2012. That would entitle him to the PIP coverage[,] . . . and I think Mr. Paruszek is talking past the issue[] . . . and not addressing the issue with his certification. He . . . wants to say that . . . [and] he goes back to the Peggy Saunders policy, and that . . . may be true, but it doesn't . . . deny[] that there isn't coverage under . . . a policy that Progressive holds.

The motion judge then granted plaintiff's motion for summary judgment and entered an order compelling Progressive to provide PIP and UM benefits to plaintiff. A consent order to enter final judgment was then signed on August 29, 2014.

On appeal, defendant argues that the court erred in granting summary judgment because plaintiff does not meet the definition of "insured" for the injuries sustained in the October 2012 accident.

We review a ruling on summary judgment applying the same standard as the motion court. Nicholas v. Mynster, 213 N.J. 463, 477-78 (2013). Thus, we consider "'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.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso,P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). "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.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)). The evidence "together with all legitimate inferences therefrom" is to be viewed in the light most favorable to the non-moving party. R. 4:46-2(c). Generally, a case is not ripe for summary judgment where the critical facts are not fully developed. Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988).

Here, we conclude that the motion judge did not view the evidence and all legitimate inferences therefrom in the light most favorable to Progressive, the non-moving party. The judge stated that he found and believed that there was a Progressive insurance policy that provided coverage for the Pontiac and plaintiff on the day of the accident, despite a certification from Progressive indicating that there may have been no such coverage. More specifically, Progressive argued that its prior response contained mistakes regarding the particular person and vehicle insured. Despite the judge's assertion that the certification does not specifically deny the representations made in the prior response, the certification does raise doubt as to which person and vehicle was insured by Progressive, as the evidence contained in Progressive's certification would support the legitimate inference that the prior response was in error.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 Plaintiff filed a motion captioned "Motion to Compel PIP and U[n]insured Motorist Benefits" without reference to a rule. Because the motion required the court to look beyond the pleadings to determine the ultimate issue of insurance coverage, we subject the court's decision on the motion to review under the summary judgment standard. See County of Warren v. State, 409 N.J. Super. 495, 504 (App. Div. 2009) (emphasizing that when materials outside the pleadings are considered, a motion is treated as one seeking summary judgment), certif. denied, 201 N.J. 153, cert. denied, 561 U.S. 1026, 130 S. Ct. 3508, 177 L. Ed. 2d 1092 (2010).