SIDNEY HOLMES v. GOVERNMENT EMPLOYEES INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SIDNEY HOLMES,

Plaintiff-Appellant,

and

CHANTEL BYRD,

Plaintiff,

v.

GOVERNMENT EMPLOYEES INSURANCE COMPANY,

Defendant,

and

ALLSTATE INSURANCE COMPANY,

Defendant-Respondent.

________________________________________

December 16, 2016

Submitted August 16, 2016 Decided

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2668-13.

Fredric L. Bor, attorney for appellant.

Kenneth N. Lipstein, attorney for respondent.

PER CURIAM

Plaintiff Sidney Holmes appeals from a summary judgment dismissing his complaint for uninsured motorist (UM) coverage against defendant Allstate Insurance Company. Because we agree with Judge Fratto that the police car that ran into plaintiff was not uninsured within the meaning of N.J.S.A. 17:28-1.1, we affirm.

The facts essential to our disposition are undisputed. Plaintiff was in a car accident on July 18, 2008 involving a police cruiser driven by an on-duty Vineland police officer. The officer was on routine patrol when his foot slipped off the brake of the cruiser as he approached a red light. The cruiser slid into the middle of the intersection where it was struck by plaintiff's car.

Plaintiff instituted a tort action against the officer and his employer, the City of Vineland. During discovery in that action, the municipal defendants answered Form C interrogatories stating there was insurance coverage available to satisfy part or all of any judgment plaintiff might recover.

The municipal defendants sought summary judgment contending plaintiff had filed his notice of tort claim one day beyond the ninety days permitted by N.J.S.A. 59:8-8 and had not filed a timely late claim motion as required by N.J.S.A. 59:8-9. While that motion was pending, plaintiff filed a motion seeking the dismissal of his own complaint on the ground that the municipal defendants were immune from suit.

In a letter to the court in support of the motion, plaintiff's counsel asserted that "[t]he facts of the within matter seem to fall squarely within the good faith immunity provision of N.J.S.A. 59:3-3. As articulated by the Supreme Court in Canico,1 the defendant [officer] and the City of Vineland may be immune from responsibility in accordance with the Tort Claims Act." (Emphasis added). Plaintiff's counsel asked the court to rule on his motion that the municipal defendants were entitled to good faith immunity before ruling on their motion to dismiss the complaint for failure to comply with the Tort Claims Act, thus rendering plaintiff "eligible to seek relief through the appropriate uninsured motorist endorsement."

The court acceded to plaintiff's request, granting his unopposed motion in March 2013 to dismiss his own complaint with prejudice on the basis of good faith immunity and denying defendants' motion for summary judgment as moot.

Plaintiff filed this suit three months later asserting UM coverage. Allstate answered and subsequently moved for summary judgment contending the police cruiser did not meet the definition of an uninsured vehicle under N.J.S.A. 17:28-1.1e(2), which provides that an "'[u]ninsured motor vehicle' shall not include . . . a motor vehicle which is owned by the United States or Canada, or a state, political subdivision or agency of those governments or any of the foregoing."2 Plaintiff opposed the motion relying on our opinion in Tozzo v. Universal Underwriters Insurance Company, 261 N.J. Super. 586, 591 (App. Div. 1993), in which we held the exclusion did not apply where the governmental entity had denied vicarious liability for the driver's conduct.

At argument on the motion, the court focused on Tozzo, and whether Vineland had asserted immunity for the officer's conduct. Allstate's counsel responded that she had never been provided with an explanation for the immunity and had not been provided with anything other than the order, despite her requests for the underlying motion papers. Plaintiff's counsel did not disclose that the tort case had been dismissed on his own motion asserting the defendants' immunity, and that the City of Vineland had not moved to deny its vicarious liability for the police officer's conduct. The court denied Allstate summary judgment but required plaintiff's counsel to serve counsel for Allstate with "a copy of all motion papers in regard to the City of Vineland."

Upon receipt of those papers, and learning that plaintiff himself had procured the order granting defendants immunity, Allstate renewed its motion for summary judgment. Judge Fratto, who was new to the case, heard the motion. Based on the undisputed facts, the judge found the police officer would not be entitled to qualified immunity, and Vineland would indisputably be vicariously liable for his conduct, thus rendering the police officer insured and eliminating any claim of UM coverage. In a succinct ruling from the bench, Judge Fratto concluded

There's no basis for uninsured motorist coverage, number one. Number two, if by some tortured reading of the . . . facts he was immune, then the carrier, at this point, the UM carrier, can raise that immunity as a defense and you still can't recover against the officer.

Plaintiff moved for reconsideration asserting Judge Fratto had not accorded appropriate deference to the order granting immunity to the municipal defendants in the tort suit or the prior order denying summary judgment in the UM action. Judge Fratto responded that plaintiff had his own complaint dismissed on the basis the municipal defendants were immune from suit and had failed to disclose that to the judge hearing Allstate's first motion for summary judgment in the UM case when the judge asked whether Vineland had asserted immunity for the officer's conduct. The judge accordingly declined to revisit his prior ruling. Plaintiff appeals, reprising the same arguments.

We, of course, review the grant of summary judgment using the same standard as the motion judge. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). 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)).

Applying that standard here, we find no basis on which to disagree with Judge Fratto. The police officer who caused plaintiff's accident was clearly not entitled to qualified immunity under well-established law. See Canico, supra, 144 N.J. at 366-67 ("As we read the statute, the Legislature has chosen to immunize law enforcement officers from liability forthe negligent operation of their vehicles in response to emergencies.").

The officer was on routine patrol when he slid through a red light causing the accident. He was not responding to an emergency. Thus there was no basis for the unopposed order plaintiff procured dismissing his own case with prejudice on immunity grounds while staring down a summary judgment motion claiming his complaint was time barred.

We agree with Judge Fratto that plaintiff's UM complaint was properly dismissed on summary judgment for the reasons the judge provided. Plaintiff's claims to the contrary are without sufficient merit to warrant discussion in a written opinion. SeeR. 2:11-3(e)(1)(E).

Affirmed.

1 Canico v. Hurtado, 144 N.J. 361, 366 (1996).

2 Allstate alternatively asserted the immunity granted to the municipal defendants in the underlying tort action. Noting that a plaintiff can recover from the UM carrier only those damages he could legally recover from the tortfeasor, Allstate claimed it stepped into the shoes of the tortfeasor and was likewise "immune" from liability based on the order granting the municipal defendants immunity.