ANTHONY VANBLARCOM v. LIBERTY MUTUAL FIRE 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NOT FOR PUBLICATION WITHOUT THE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 only binding 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

ANTHONY VANBLARCOM,

Plaintiff-Appellant,

v.

LIBERTY MUTUAL FIRE INSURANCE

COMPANY,

Defendant-Respondent,

and

ENCOMPASS INSURANCE COMPANY OF

NEW JERSEY,

Defendant.

___________________________________________

October 14, 2016

Argued September 22, 2016 Decided

Before Judges O'Connor and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3420-12.

Daniel B. Zonies argued the cause for appellant.

Walter F. Kawalec, III argued the cause for respondent (Marshall Dennehey Warner Coleman & Goggin, attorneys; Mr. Kawalec and Eric R. Brown, on the brief).

PER CURIAM

Almost six years after he was injured, plaintiff Anthony Vanblarcom filed a complaint against defendant Liberty Mutual Fire Insurance Company. At the time he was injured, defendant provided plaintiff Personal Injury Protection (PIP) and uninsured motorist (UM) benefits under an automobile liability insurance policy (policy). In his complaint, plaintiff sought to compel defendant to provide these benefits. Following discovery, defendant moved for summary judgment. Upon review, the trial court concluded there were no facts upon which a fact-finder could conclude plaintiff had been injured by a motor vehicle and dismissed the complaint with prejudice.

On appeal, plaintiff challenges the summary judgment dismissal, primarily arguing the record presented disputed facts requiring review by a fact-finder. He requests we vacate summary judgment and reinstate his complaint. Analyzing the record, we affirm the order granting summary judgment because no material factual dispute was presented and the evidence of record failed to support plaintiff's alleged claims.

I

We recite the facts taken from the summary judgment record, as viewed in the light most favorable to plaintiff, the non-moving party. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405-06 (2014). In his statement of material facts, see R. 4:46-2(a), filed in response to defendant's summary judgment motion, plaintiff asserted that, on August 30, 2006, he resided with his mother, the named insured in the policy. On this date, plaintiff recalled going to Camden for the purpose of visiting his cousin. After his mother dropped him off in Camden, he remembered "walking to meet [my] cousin." The next thing he remembers is being in the hospital. He had no recollection of how he was injured.

Plaintiff further maintained that, while in the hospital, his brother told him that he had heard plaintiff had been hit by a white pick-up truck. Plaintiff also pointed out that his hospital chart makes reference to his having been in a motorcycle accident. We note that there is a copy of an operative report and discharge summary in the record. The operative report states plaintiff was involved in a motorcycle crash. The discharge summary reports plaintiff "was riding his motorcycle when he crashed. . . . No helmet was used." It is not known who supplied the aforementioned information to the physicians who wrote the operative report and discharge summary. In his statement of material facts, plaintiff claimed he had never "used" a motorcycle.

As a result of the accident or incident in which he was injured, plaintiff fractured his skull, four ribs, two cervical vertebrae, and his clavicle. He also sustained damage to his brain, spleen, and kidney. Plaintiff claimed he continues to suffer from various physical and mental ailments as a result of his injuries. Finally, he noted the "police records have been inexplicably unavailable."1

Defendant acknowledged that, at the time he was injured, plaintiff was an insured under his mother's policy, which provided $100,000 in UM benefits per person and a medical expense limit of $15,000 per person in PIP benefits. However, defendant claimed it first learned of the alleged accident when served with the summons and complaint in December 2012. Defendant contended plaintiff's six-year delay in providing it with notice of the accident precluded it from conducting a meaningful investigation about how plaintiff had been injured and whether any defenses to his claim for benefits existed.

The terms of the policy required that, if an insured were involved in an accident, the insured was obligated to promptly notify defendant of how, when, and where the accident or loss happened, and to provide the names and addresses of any injured persons and any witnesses. The policy precluded an insured from receiving PIP benefits if an insured were injured while riding a motorcycle.

The trial court found there was no competent evidence plaintiff had been injured by a motor vehicle. The court reasoned as follows

[P]utting aside whatever prejudice Liberty Mutual claims from any delay, there are no records here. And that's part of the problem. There is no one we can point to that knows what took place in this circumstance. And the plaintiff can only say what he remembers up to a certain point, and that is that he was dropped off by his mother in the City of Camden. He was a pedestrian walking to meet his cousin, and that's all he can say. He can't say anything beyond that. It is literally a black hole after that. There's no in my estimation, no admissible evidence that comes in that says what took place. It's a mystery as to what took place.

We have some hearsay facts that could hint at what it could be and they are competing. One offers a version where he was hit by a white pickup truck, in one hearsay version, and in another hearsay version he was a non-helmeted motorcycle driver who crashed on his own. Neither of them are valid proofs . . . [and] it's the plaintiff's burden of production and persuasion. He has to come forward to produce evidence that's admissible that says what happened. . . . He doesn't remember and he doesn't have any witnesses that said what took place. And it would be sheer speculation to go beyond that to say that based on the nature of his injuries, it must have come from a motor vehicle accident because I I don't have any scientific or medical expert that that gives me a report that says that this must have been from a motor vehicle accident . . . . So, counsel, for those reasons I need to dismiss the action.

On appeal, plaintiff contends there was sufficient evidence for a trier of fact to conclude he was injured when struck by a motor vehicle as a pedestrian. In support of his argument, he claims his injuries could only have been caused if he were a pedestrian and was hit by a motor vehicle. He also argues the trial court failed to apply the correct legal standard when it evaluated and granted defendant's application for summary judgment, and that defendant did not show it was prejudiced as a result of his failure to provide to it notice of his claim for almost six years.

II

We review the grant or denial of a motion for summary judgment de novo. Davis, supra, 219 N.J. at 405. Summary judgment should only 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). We must determine whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).

N.J.S.A. 17:28-1.1(e)(2) defines, in relevant part, the term "uninsured motor vehicle" as

(a) a motor vehicle with respect to the ownership, operation, maintenance, or use of which there is no bodily injury liability insurance or bond applicable at the time of the accident;

(b) a motor vehicle with respect to the ownership, operation, maintenance, or use of which there is bodily injury liability insurance in existence but the liability insurer denies coverage or is unable to make payment with respect to the legal liability of its insured because the insurer has become insolvent or bankrupt, or the Commissioner of Banking and Insurance has undertaken control of the insurer for the purpose of liquidation; [or]

(c) a hit and run motor vehicle as described in . . . [N.J.S.A.] 39:6-78[.]

This statutory scheme obligates one seeking to receive compensation based on the UM coverage provisions in an automobile policy to establish that the claim is based on an accident with an uninsured motor vehicle. Livsey v. Mercury Ins. Grp., 197 N.J. 522, 532 (2009). As the Livsey Court made clear, "an insured who seeks UM benefits must satisfy a two-prong test: first, the insured must demonstrate that his or her injuries were caused by an 'accident;' and, second, the insured must prove that the accident arose from the ownership, maintenance, operation or use of an uninsured vehicle." Id. at 531.

There is no evidential support for the claim that plaintiff's "accident arose from the ownership, maintenance, operation or use of an uninsured vehicle." In fact, there is no competent evidence he was injured as a result of a motor vehicle at all. The origin of plaintiff's injuries is simply not known. According to plaintiff, his last memory before being injured was walking in Camden to meet his cousin. There is not even any evidence he had been walking in the street when he was injured.

The statement from the unidentified and unknown individual who told plaintiff's brother that plaintiff had been hit by a white truck does not require any discussion; such statement is clearly inadmissible hearsay. See N.J.R.E. 801(c) and N.J.R.E. 802. Plaintiff has not proffered any exception to the hearsay rule that would make this statement admissible.

There is reference in the hospital chart to plaintiff having been involved in a motorcycle accident. However, the mere fact the operative report and discharge summary are part of a hospital record does not make the subject statements in those documents admissible. These statements are hearsay, and plaintiff failed to identify the Rule of Evidence that qualifies these statements as admissible.

We also must reject plaintiff's premise his injuries bespeak those caused by a motor vehicle, a contention that is beyond the ken of the average fact-finder and thus requires expert testimony to establish. "In general, expert testimony is needed where the factfinder would not be expected to have sufficient knowledge or experience and would have to speculate without the aid of expert testimony." Torres v. Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001) (citing Kelly v. Berlin, 300 N.J. Super. 256, 268 (App. Div. 1997)).

Plaintiff does not have an expert's report in which the expert opines his injuries were caused by a motor vehicle.

A layperson lacks the expertise to distinguish whether the injuries plaintiff suffered were caused by being struck by a motor vehicle as opposed to, for example, being beaten or having heavy objects thrown at him.

Boiled down to its essence, the only competent evidence there is about plaintiff's accident is that, just before the accident, he had been walking in Camden. As he cannot show his injuries were caused by an accident that arose from the ownership, maintenance, operation or use of an uninsured vehicle, see Livsey, supra, 197 N.J. at 531, plaintiff is not entitled to recover UM benefits under the policy.

Similarly, to be eligible for PIP benefits, plaintiff is required to show he was injured "as a result of an accident while occupying, entering into, alighting from or using an automobile, or as a pedestrian, caused by an automobile or by an object propelled by or from an automobile." N.J.S.A.39:6A-4.

In determining whether PIP benefits must be paid, "we apply the same 'substantial nexus' test that is applied when determining whether a person is entitled to UM or UIM coverage." Severino v. Malachi, 409 N.J. Super. 82, 93 (App. Div. 2009) (citing Svenson v. Nat'l Consumer Ins. Co., 322 N.J. Super. 410, 413 (App. Div. 1999)). As plaintiff cannot make this showing, he is not entitled to PIP benefits, either.

In light of our disposition on the issues reached, we need not address plaintiff's remaining arguments.

Affirmed.

1 During argument before us, counsel for both parties acknowledged the police were unable to archive a report or record pertaining to plaintiff or his alleged accident.