JACQUELINE MYERS v. ZURICH FARMERS INSURANCE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1349-05T51349-05T5

JACQUELINE MYERS,

Plaintiff-Appellant,

v.

ZURICH FARMERS INSURANCE,

Defendant-Respondent.

 

Argued October 5, 2006 - Decided October 27, 2006

 
Before Judges Winkelstein and Fuentes.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, BUR-L-1381-04.

Albert J. Talone argued the cause for appellant (Leonard and Sciolla, attorneys; Mr. Talone, on the brief).

Martin J. McAndrew argued the cause for respondent (Murphy and O'Connor, attorneys; Mr. McAndrew, on the brief).

PER CURIAM

Plaintiff Jacqueline Myers appeals from a summary judgment in favor of defendant Zurich Farmers Insurance Company dismissing her claim for uninsured motorist (UM) benefits. We affirm.

The lawsuit arose out of an accident plaintiff had with a truck in the parking lot of the Moorestown Mall on March 12, 2000. The truck was owned by sixty-seven-year-old James A. Reader, who acknowledged driving it but disputed plaintiff's version of the accident.

Plaintiff sued Reader. At her deposition in that lawsuit, she described the accident as follows. She was in her car, stopped, while waiting to make a right-hand turn out of the mall parking lot. The driver of a truck attempted to make a left turn into the parking lot, when he passed in front of her, and turned to pass by the left side of her car. The truck scraped the side of her car and lodged its rear wheel in her bumper. Over the course of about ten or twelve minutes, the truck's driver pulled forward and backward several times before successfully freeing the truck from plaintiff's car. Each time the truck drove forward, plaintiff was thrown forward into the steering wheel and then pulled back by her seatbelt. Plaintiff blew her horn and pounded on her window to try to get the driver's attention as this occurred.

After the truck driver disentangled the truck from plaintiff's car, he drove several rows over and parked his vehicle. Plaintiff got out of the car and yelled after him as he pulled away. She then got back in her car and drove to where the truck was parked; by that time the driver had gotten out of the vehicle and was making his way toward the mall. Plaintiff yelled after him again but the driver was sprinting across the parking lot.

Plaintiff described the driver as a young man with blond hair between the ages of eighteen and twenty-one, about five feet, seven or eight inches tall, thin-framed with his hair cut neatly and wearing a yellow Polo shirt and jeans. She described the driver's female companion, who was in the passenger seat of the truck, as about five feet, six or seven inches tall, very thin with medium-length hair and wearing a blue and white striped shirt, jeans and shoes with "a bit of a heel."

Plaintiff called the Moorestown police on her cell phone. She waited by the truck, in her car, for about forty minutes until the police arrived. When the police officer completed his report, he told plaintiff that she could go and that he would wait for the vehicle's owner to return.

At their depositions, Reader and his wife had a different view of what occurred. According to Reader, he was driving his truck to the Moorestown Mall parking lot accompanied by his wife, Lillian, who was in the passenger seat. When he turned into the parking lot, he observed a vehicle, apparently preparing to leave the parking lot, but not moving. He could not see the driver of the car because of sun glare. As he proceeded to make a left-hand turn into the parking lot, he passed the vehicle on the left. When he was almost past, he realized he might be getting too close to it, so he backed up, pulled around the car, and parked.

Reader says he did not feel any contact with the other car. He did not hear anyone call to him while driving or after he parked his truck. He said that when he got out of his truck, he noticed a smudge on his left rear fender that he wiped off with his handkerchief, and then proceeded into the mall. When he and his wife left the mall several hours later, they were stopped by a police officer who issued him a citation for leaving the scene of an accident. Lillian Reader gave an account of the accident that matched her husband's.

James Reader stated that his twenty-one-year-old grandson, Ryan, was living with the Readers at the time of the deposition, but Ryan was not living with them at the time of the accident. Reader said that only he and his wife were permitted to drive the truck.

Plaintiff's case against Reader was submitted to arbitration. The arbitrator entered an award in favor of Reader because plaintiff told him that Reader was not driving the truck that struck her car. Plaintiff did not contest Reader's motion to confirm the arbitrator's finding. Subsequently, plaintiff demanded UM arbitration. When defendant refused her request, she filed this lawsuit.

The UM provision of plaintiff's insurance policy reads, in pertinent part:

We will pay all sums which any insured person is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured person. The bodily injury must be caused by an accident and arise out of the ownership, maintenance or use of the uninsured motor vehicle. Determination as to whether an insured person is legally entitled to recover damages or the amount of damages will be made by agreement between the insured person and us. If no agreement is reached, the decision will be made by arbitration.

. . . .

If an insured person and we do not agree (1) that the person is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle . . . , or (2) as to the amount of damages under Uninsured . . . Motorist coverage, either party may make a written demand for arbitration.

. . . .

The arbitrator will determine (1) the existence of an uninsured or underinsured motor vehicle, (2) that the insured person is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle, and (3) the amount of payment under this part as determined by this policy or any other applicable policy.

On defendant's motion for summary judgment, the judge dismissed plaintiff's lawsuit, concluding that plaintiff did not make reasonable efforts to ascertain the identity of the driver of the vehicle, which precluded her from qualifying for UM benefits. Plaintiff claims that under the terms of the policy, it is the arbitrator, not the judge, who decides if plaintiff has coverage. We disagree.

An uninsured motor vehicle includes a "hit-and-run" motor vehicle as defined in N.J.S.A. 39:6-78. N.J.S.A. 17:28-1.1e(2)(c). It is one where

the identity of the motor vehicle and of the operator and owner cannot be ascertained or it is established that the motor vehicle was, at the time said accident occurred, in the possession of some person other than the owner without the owner's consent and that the identity of such person cannot be ascertained.

[N.J.S.A. 39:6-78.]

A person must make "reasonable efforts" to identify the other vehicle, its owner and operator, for the vehicle to qualify as a "hit-and-run" vehicle. N.J.S.A. 39:6-78(e). Failure to demonstrate reasonable efforts precludes payment of UM benefits. Scheckel v. State Farm Mut. Auto. Ins. Co., 316 N.J. Super. 326, 332 (App. Div. 1998).

While public policy in New Jersey favors arbitration as a means of settling disputes that would otherwise go to court, the scope of arbitration depends solely upon the parties' agreement. United Servs. Auto. Ass'n v. Turck, 156 N.J. 480, 486 (1998). Nevertheless, whether an insured has coverage under the policy is an issue to be resolved by the court. O'Connell v. N.J. Mfrs. Ins. Co., 306 N.J. Super. 166, 172-73 (App. Div. 1997) (satisfaction of the threshold requirements of N.J.S.A. 39:6-78 is an issue of coverage to be determined by the court and not by the arbitrator), appeal dismissed, 157 N.J. 537 (1998).

In O'Connell, supra, the injured plaintiff collided with another vehicle as it pulled out from behind an illegally parked truck and into the plaintiff's path. Id. at 168-69. After pursuing his claim against the driver of the other vehicle, the plaintiff applied for UM benefits under his own policy with respect to the illegally parked, unoccupied truck. Id. at 169-70. The language of the arbitration clause in the O'Connell policy read:

If we and an insured disagree whether the insured is legally entitled to recover damages from the owner or driver of an uninsured motor vehicle . . . or do not agree as to the amount of damages that are recoverable by that insured, then the matter may be arbitrated.

[Id. at 170.]

We held that the jurisdiction of the arbitrator could not be invoked until the insured had satisfied N.J.S.A. 39:6-78. A requirement of that statute was that the plaintiff make reasonable efforts to identify the driver of the vehicle. That determination is to be made by the court, not the arbitrator. Id. at 172-73.

As we did in O'Connell, we conclude here that the court determines whether arbitration is warranted. N.J.S.A. 17:28-1.1, which mandates UM coverage, incorporates the hit-and-run definition of N.J.S.A. 39:6-78, which in turn, says that no judgment shall be entered unless the court is satisfied that all reasonable efforts were made to identify the owner and operator of the other vehicle. See Kenny v. N.J. Mfrs. Ins. Co., 328 N.J. Super. 403, 408 (App. Div. 2000). Further, plaintiff's UM policy provides that the arbitrator's purview is limited to the insured's entitlement to recover damages and the amount of those damages. It also provides that formal demand for arbitration should be made in court. An objective reading of the policy provides that the court decides whether plaintiff has coverage. See Lederman v. Prudential Life Ins. Co., 385 N.J. Super. 324, 339 (App. Div.), certif. denied, ___ N.J. ___ (2006) (determination of parties' intentions as to what issues are arbitrable is made on objective intent manifested by contractual language). Thus, it was proper here for the court to make the determination of whether coverage existed.

That takes us to whether the trial judge erred when he concluded that plaintiff did not make reasonable efforts to ascertain the driver of the truck. The determination of whether actions taken to ascertain the identity of a hit-and-run driver for purposes of satisfying N.J.S.A. 39:6-78 depend on the circumstances of the individual case, and the plaintiff has the burden of proof. Norman v. Selective Ins. Co., 249 N.J. Super. 104, 109 (App. Div. 1991).

The court here made its decision on defendant's summary judgment motion. Summary judgment is only appropriate if no issue of material fact exists. Judson v. People's Bank & Trust Co. of Westfield, 17 N.J. 67, 74 (1954). The trial court must not decide issues of fact; it must only decide whether there are any such issues. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995); R. 4:46-2(c).

In deciding that plaintiff failed to take reasonable measures to ascertain the operator of the vehicle at the time of the accident, the trial judge found that plaintiff failed to subpoena all of the members of Reader's family who could have been driving the truck. The judge did not make credibility findings. He accepted plaintiff's actions for what they were, and determined that she should have done more to ascertain the person she described as driving the truck at the time of the accident.

No dispute exists that the truck was owned by Reader, and it was the truck involved in the incident. The only issue is the identity of the driver. While Reader claimed he was the driver, in his answers to interrogatories he also gave the names of his three sons and nine grandchildren. At no time did plaintiff attempt to discover whether one of Reader's sons or grandsons was operating the truck at the time of the accident. Plaintiff simply claimed that the evidence showed it was not James Reader. The trial judge determined that plaintiff's limited actions were not reasonable under the circumstances. We do not find error in that determination.

Affirmed.

 

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A-1349-05T5

October 27, 2006