TERRANCE SIMPSON v. HAROLD SCTOOT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1357-11T2

TERRANCE SIMPSON

Plaintiff-Appellant,

v.

HAROLD SCTOOT and LISA BYRD,

Defendants,

and

ENCOMPASS INSURANCE COMPANY,

Defendant-Respondent.

__________________________________

December 5, 2012

 

Argued October 15, 2012 - Decided

 

Before Judges Graves and Guadagno.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2420-10.

 

Bridget Saro argued the cause for appellant (Law Offices of Frank J. Zazzaro, attorneys; Ms. Saro, of counsel and on the brief).

 

William G. Nestor III argued the cause for respondent (Hardin, Kundla, McKeon & Poletto, attorneys; Mr. Nestor, on the brief).

 

 

 

 

PER CURIAM

Plaintiff Terrance Simpson appeals from an order dated October 21, 2011 granting summary judgment to defendant Encompass Insurance. We affirm.

On April 23, 2008, as plaintiff was driving westbound on 18th Avenue in Newark, a Ford Taurus struck his vehicle causing extensive damage.1 The impact of the crash rendered Simpson unconscious for a brief period. When he regained consciousness, he observed the driver of the other vehicle fleeing the scene. Simpson attempted to give chase but collapsed after a few steps.

The responding police officer determined that Simpson's driver's license had been suspended and issued a summons for driving on the revoked list. N.J.S.A. 39:3-40. The Taurus was owned by defendants Harold Sctoot and Lisa Byrd but had been stolen prior to the accident.

Simpson filed a claim with his insurance carrier, defendant, Encompass Insurance (Encompass), for uninsured motor vehicle (UM) benefits. By letter dated October 28, 2008, Encompass notified plaintiff that his UM claim was denied as his license was revoked on April 9, 2008, and was not restored until May 1, 2008, one week after the accident occurred.

On March 19, 2010, plaintiff filed a complaint in the Law Division against the owners of the Taurus. On April 23, 2010, he filed an amended complaint, adding Encompass as a defendant. On March 18, 2011, Encompass moved for summary judgment. The court denied the motion pending further discovery. Encompass deposed plaintiff on April 5, 2011. At the deposition, plaintiff testified that he learned the identity of the driver of the Taurus a few months after the accident from his friend, Kenny Mitchell. Mitchell told Simpson the driver of the Taurus was his son.

[Q:] Okay. Can you describe the young gentleman who ran from the [accident]?

 

[A:] I know him.

 

. . . .

 

[Q:] What is his name?

 

[A:] He didn't even know it was me. He's a Mitchell. I know his momma and his daddy and them. But he's a Mitchell.

 

. . . .

 

[Q:] What is his first name?

 

[A:] He probably would be named after his father, Kenny.

 

[Q:] Was he the driver or a passenger?

 

[A:] He was the driver.

 

[Q:] Do you know where Kenny Mitchell lives?

 

[A:] Actually, he's dead now.

 

[Q:] He's dead?

 

[A:] Yes.

 

[Q:] Do you know when he died or what the circumstances of his death were?

 

[A:] He got killed.

 

[Q:] Do you know how he was killed?

 

[A:] Gunshot.

 

[Q:] Do you know why he was killed?

 

[A:] No. He was in that gang stuff.

 

. . . .

 

[Q:] How did you know it was him when he started running?

 

[A:] I ran into his father. Actually, I ran into his father. Yeah. His father asked me where I was going. I said I was going to therapy. He said, "What are you going to therapy for?" "I was in a car accident like right up the hill."

 

[Q:] Yeah?

 

[A:] He said, "You're talking about the accident?" "Yeah. It was me." He says, "That was my son.

After this discussion, Mitchell brought his son to see Simpson who recognized him as the driver of the Taurus.

After the deposition, defendant renewed its motion for summary judgment on the grounds that: 1) plaintiff was not entitled to UM benefits because he lacked a reasonable belief "that he was entitled to operate a motor vehicle;" and 2) Encompass was prejudiced in their subrogation rights by failure to report the identity of the driver of the hit-and-run vehicle.

Plaintiff opposed the motion and maintained that, at the time of the accident, he was not aware that his license had been suspended. He was living at 55-57 Underwood Street, Newark and the notice of license suspension was sent by the Motor Vehicle Commission to the address on file, 166 Mt. Prospect Avenue, Newark.

On October 21, 2011, the trial judge granted the motion for summary judgment finding:

[P]ursuant to [N.J.S.A.] 17:29C-7 et seq. that the case law is quite clear. Particularly the case law defining [N.J.S.A.] 39:3-50, is it driving while suspended. If you're going to put somebody in jail because they're driving -- to presume that they had knowledge of the fact that their license was suspended and when all proof that's needed, in order to do that is to show that notice of the suspension was -- was provided at the address provided, by the -- by the driver.

 

That -- that's clear that Mr. Simpson knew or should have known that he did not have the privilege to operate any motor vehicle including this one. Thus pursuant to policy and the statute he's barred from collecting under the terms of the policy.

 

In addition, it seems clear that he also is seeking uninsured [motorist] benefits he is -- he has prevented the defendant Encompass from being able to pursue to either disclaim on the grounds that he's not -- that the tortfeasor was not uninsured, or has prevented Encompass from enabling it to [exercise] its subrogation rights by going after the . . . tortfeasor.

 

And he's done so, preventing them from doing that by not disclosing the identity of the tortfeasor. . . . That . . . within a period of time which the Statute of Limitations permitted a viable cause of action directly and by Encompass as subrogee of Mr. Simpson.

 

Plaintiff appeals, claiming the trial court erred in finding he lacked a reasonable belief that he was entitled to uninsured coverage and there was insufficient proof to support the claim of prejudice by Encompass.

We review a grant of summary judgment with the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we 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, 536 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). Pursuant to Rule 4:46-2(c), the moving party must "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." In Brill, the Court stated:

a determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider 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. The "judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."

 

[Brill, supra, 142 N.J. at 540 (alteration in original) (quoting Liberty Lobby, supra, 477 U.S. at 249, 106 S. Ct. at 2511, 91 L. Ed. 2d at 212).]

 

Plaintiff applied to Encompass for UM coverage, authorized in New Jersey by the uninsured motorist statute N.J.S.A. 17:28-1.1. This statute serves two purposes. It is designed to "provide maximum remedial protection to the innocent victims of financially irresponsible motorists," Riccio v. Prudential Prop. & Cas. Ins. Co., 108 N.J. 493, 503 (1987), and to "reduce the drain on the financially-troubled Unsatisfied Claim and Judgment Fund." Id. at 503-04.

Plaintiff's UM coverage endorsement states, in relevant part:

4. Uninsured Motor Vehicle means a land motor vehicle or trailer of any type:

 

a. To which no bodily injury liability bond or policy applies at the time of the accident.

 

b. Which, with respect to damages for bodily injury only, is a hit-and-run vehicle whose operator or owner cannot be identified and which hits, or which causes an accident resulting in bodily injury without hitting:

 

(1) You or any family member.

The section of plaintiff's policy titled "UNINSURED MOTORISTS LOSSES WE DO NOT COVER" provides:

1. We do not provide coverage under this endorsement for bodily injury or property damage sustained by any covered person:

 

. . .

 

c. Using a vehicle without a reasonable belief that the covered person is entitled to do so.

 

Plaintiff argues that the court below erred in determining that he "knew or should have known that he did not have the privilege to operate any motor vehicle including this one."

Encompass notes that N.J.S.A. 39:3-40(a) prohibits operating a motor vehicle during the period when a person's driver's license has been revoked or suspended and argues that knowledge of the status of one's driver's license is not an element of the statute.

The Motor Vehicle Commission (MVC) Confirmation of Suspension notice was sent to Simpson at 166 Mt. Prospect Avenue, Newark, notifying him that, as of April 9, 2008, his driving privilege was suspended indefinitely. Simpson testified at his deposition that in April 2008 he was living at 55-57 Underwood. It is clear that Simpson failed to notify MVC of his change of address when he moved from Mt. Prospect to Underwood. The accident report dated April 23, 2008, indicates Simpson's address as 166 Mt. Prospect. Other documents in the record, including an application for employment and Simpson's Form W-2 Wage and Tax Statement, bear the Underwood address. Clearly, Simpson was able to change his address as to some accounts, but apparently, chose not to notify the MVC.

Pursuant to N.J.S.A. 39:3-36, plaintiff was required to notify the MVC "of any change in residence within one week after the change is made." At his deposition, Simpson indicated that he lived at 55-57 Underwood for three years before he moved in December 2010. Clearly, plaintiff failed to update his change of address with the MVC, which resulted in the Notice of Suspension being sent to his prior address.

The unambiguous language of N.J.S.A. 39:3-40 makes it clear that, as of April 9, 2008, plaintiff was prohibited from operating a motor vehicle. The fact that he did not receive notice is attributable solely to his failure to notify the MVC of his change of address and had no effect on his suspension.

As plaintiff was not authorized to drive on the date of the accident, we must determine what effect that has on his coverage. When interpreting an insurance policy, we must start with the plain language of the policy and "give the words 'their plain, ordinary meaning.'" President v. Jenkins, 180 N.J. 550, 562 (2004) (quoting Zacarias v. Allstate Ins. Co., 168 N.J. 590, 595 (2001)). Exclusionary provisions "are presumptively valid and will be given effect if 'specific, plain, clear, prominent, and not contrary to public policy.'" Princeton Ins. Co. v. Chunmuang, 151 N.J. 80, 95 (1997) (quoting Doto v. Russo, 140 N.J. 544, 559 (1995)).

Simpson's coverage turns on whether he had a "reasonable belief" that he was entitled to operate his vehicle on the day of the accident. The clear, unambiguous language of the policy exclusion requires that before an insured may recover UM benefits, the insured must have operated the vehicle legally.

In Martin v. Rutgers Cas. Ins. Co., 346 N.J. Super. 320 (App. Div. 2002), we affirmed the denial of PIP and UM benefits to an unlicensed driver who was involved in a one-car accident while driving a vehicle belonging to her fiancé's stepfather while her license was suspended. The plaintiff applied for both UM and personal injury protection benefits. Id. at 322. Her license had been suspended for six years and "[t]he period of suspension was periodically extended because on several occasions she was ticketed for driving while on the revoked list." Ibid.

Martin's UM policy contained an exclusion for persons "'[u]sing a vehicle without a reasonable belief that that person is entitled to do so,'" id. at 323, similar to plaintiff's policy. However, Martin's policy "defined 'reasonable belief' in the following manner: 'Any person operating the vehicle without a valid license . . . shall be conclusively presumed to be operating the insured vehicle without a reasonable belief they are entitled to do so.'" Ibid. We found that "an individual who knows that [his or her] driver's license has been suspended and remains suspended, [can] form no 'reasonable belief' that [they have] permission to drive a vehicle." Id. at 324-25.

Here, plaintiff's address on file with the MVC was 166 Mt Prospect Avenue. When plaintiff moved, he failed to notify the MVC of his change of address as required by law. Sending the Suspension Notice to plaintiff at the only address MVC had for him was reasonable and satisfied due process. See State v. Wenof, 102 N.J. Super. 370, 375-76 (Law Div. 1968), overruled on other grounds, State v. Ferrier, 294 N.J. Super. 198 (App. Div. 1996), certif. denied, 148 N.J. 461 (1997) (mailing to the address of record is a method reasonably calculated to reach the intended party and thus satisfies due process even in the absence of actual notice).

As we affirm the granting of summary judgment based on the motion judge's findings that plaintiff did not have a reasonable belief he was entitled to operate his vehicle, we need not address plaintiff's other claim of error.

Affirmed.

1 Simpson told the responding police officer that the other vehicle was making a U-turn and cut in front of him, but in a deposition he testified that the vehicle, which he identified as a Jeep, was traveling at a high rate of speed in the opposite direction on 18th Street, when it struck his vehicle.