HERIBERTO CABALLERO-GONZALEZ v. HARCO NATIONAL INSURANCE COMPANY
Annotate this CaseNOT 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-0875-16T1
HERIBERTO CABALLERO-GONZALEZ,
Plaintiff-Appellant,
v.
HARCO NATIONAL INSURANCE
COMPANY, ADMINISTRATOR FOR
STATE NATIONAL INSURANCE COMPANY,
Defendant-Respondent.
___________________________________
Argued May 9, 2017 – Decided December 29, 2017
Before Judges Leone and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Docket No. L-
0846-13.
Dennis G. Polizzi argued the cause for
appellant (Pitts & Polizzi, LLP, attorneys;
Dennis G. Polizzi, of counsel and on the
brief).
Kirsten J. Orr argued the cause for respondent
(White Fleischner & Fino, LLP, attorneys;
Gregory S. Pennington, on the brief).
The opinion of the court was delivered by
LEONE, J.A.D.
Plaintiff Heriberto Caballero-Gonzalez appeals the August 26,
2016 order granting summary judgment to defendant Harco National
Insurance Company (Harco), Administrator for State National
Insurance Company (State National). Plaintiff argues auto
insurance coverage was improperly denied based on his ownership
of a Cadillac he did not operate. We reverse and remand.
I.
Plaintiff was involved in an accident on May 10, 2009.
According to the police report, plaintiff was driving a bus owned
by Genesis Bus Lines LLC (Genesis) when a car driven by Kulikowski
Miroslaw improperly turned right in front of him, causing the bus
to strike the car. Plaintiff claimed he suffered bodily injury.
Plaintiff alleged Miroslaw was uninsured, and sought
uninsured motorist coverage under Genesis's business auto policy
issued by State National. Harco denied coverage as State
National's administrator of claims, and plaintiff filed this
complaint against Harco.
The trial court dismissed the complaint with prejudice based
on discovery issues. We vacated and remanded. Caballero-Gonzalez
v. Harco Nat'l Ins. Co., No. A-2378-14 (App. Div. June 9, 2016).
On July 25, 2016, the trial court denied the parties' motions for
summary judgment, ruling "[a] trial is necessary as to whether
plaintiff owned an operable car at the time of this accident."
2 A-0875-16T1
Both parties filed motions for reconsideration. On August
26, 2016, the court granted Harco's motion for reconsideration,
vacated the July 25 order, granted summary judgment to Harco, and
dismissed plaintiff's complaint with prejudice. He appeals.
II.
Harco contends plaintiff's appeal is untimely. Plaintiff's
notice of appeal challenging the August 26 order was filed October
31, 2016. An appeal must be filed "within 45 days of the[] entry"
of a final order. R. 2:4-1(a).
However, plaintiff filed a motion for reconsideration of the
August 26 order. "The running of the time for taking an appeal
. . . shall be tolled . . . by the timely filing and service of a
motion" for "reconsideration seeking to alter or amend the judgment
or order pursuant to R. 4:49-2." R. 2:4-3, -3(e). Such a motion
"shall be served not later than 20 days after service of the
judgment or order upon all parties by the party obtaining it." R.
4:49-2.
Harco sent the August 26 order to plaintiff in a September
1, 2016 letter. Within twenty days, plaintiff filed his motion
for reconsideration on September 20, 2016. Thus, plaintiff's
motion for reconsideration was timely under Rule 4:49-2. See
Eastampton Ctr., LLC v. Planning Bd. of Twp. of Eastampton,
354 N.J. Super. 171, 187-88 (App. Div. 2002).
3 A-0875-16T1
Nonetheless, Harco argues plaintiff's motion did not toll the
running of the time for appeal because it was an improper second
motion for reconsideration.1 However, plaintiff's August 2, 2016
motion sought reconsideration of the July 25 order denying his
motion for summary judgment. Plaintiff's September 20 motion
sought reconsideration of the August 26 order, which for the first
time granted summary judgment to Harco. Therefore, the September
20 motion was the first motion for reconsideration concerning the
August 26 grant of summary judgment, and indisputably tolled the
running of the time for appeal of that order. As that motion was
not denied until October 17, 2016, the October 31 appeal of that
order was timely. See Hartford Ins. Grp. v. Marson Constr. Corp.,
186 N.J. Super. 253, 261 (App. Div. 1982).
Plaintiff's September 20 motion also sought reconsideration
of the July 25 order denying his motion for summary judgment. The
trial court considered it as "the 2nd motion for reconsideration,"
but considered it on the merits. However, we need not consider
whether the running of the time for an appeal of the July 25 order
1
Harco cites criticism of second motions for reconsideration.
Cummings v. Bahr,
295 N.J. Super. 374, 384 (App. Div. 1996)
(stating that "'motion practice must come to an end at some point'"
and discouraging "'repetitive bites at the apple'") (quoting
D'Atria v. D'Atria,
242 N.J. Super. 392, 401 (Ch. Div. 1990)).
4 A-0875-16T1
would be tolled by a second motion for reconsideration, because
plaintiff has not appealed the July 25 order.
Plaintiff's notice of appeal designated only the August 26
order as the order "appealed from." R. 2:5-1(f)(3)(A). Similarly,
his appellate case information statement (CIS) attached only "a
copy of [the August 26 order as] the final judgment, order, or
agency decision appealed from." R. 2:5-1(f)(2). Moreover, his
CIS stated he was appealing only the "[s]ummary judgment in favor
of the defendant," and referenced only the September 20 "motion
for reconsideration of the order that dismissed the complaint with
prejudice."
We have made clear "it is only the judgment or orders
designated in the notice of appeal which are subject to the appeal
process and review." 1266 Apartment Corp. v. New Horizon Deli,
Inc.,
368 N.J. Super. 456, 459 (App. Div. 2004). We refuse to
consider an order if the appellant "did not indicate in his notice
of appeal or case information statement that he was appealing from
the order." Fusco v. Bd. of Educ. of City of Newark,
349 N.J.
Super. 460-61 & n.1 (App. Div. 2002). Moreover, "[o]rders denying
motions for summary judgment are intrinsically interlocutory,"
Rendon v. Kassimis,
140 N.J. Super. 395, 398 (App. Div. 1976), and
"do not come within any of the classes enumerated in [R.] 2:2-3(a)
in which appeals may be taken as of right," United Cannery Maint.
5 A-0875-16T1
v. United Packinghouse Workers,
16 N.J. 264, 265 (1954).
Accordingly, we do not consider the arguments in plaintiff's
appellate brief challenging the denial of his motion for summary
judgment. We address only his timely appeal of the grant of
summary judgment to Harco.
III.
Summary judgment must be granted if "the pleadings,
depositions, answers to interrogatories and admissions on file,
together with 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). The court must "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." Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995).
An appellate court "review[s] the trial court's grant of
summary judgment de novo under the same standard as the trial
court." Cypress Point Condo. Ass'n v. Adria Towers, L.L.C.,
226 N.J. 403, 414 (2016). We must hew to that standard of review.
6 A-0875-16T1
IV.
The State National policy's uninsured motorist endorsement
treated anyone "occupying" a covered vehicle as an "insured." This
would include plaintiff, as he was operating the covered bus.
However, the policy excluded coverage for "'[b]odily injury' or
'property damage' sustained by any 'insured' who is an owner of a
motor vehicle . . . [r]equired to be insured in accordance with
New Jersey law or regulation, but not insured for this coverage
or any similar coverage."
At his deposition, plaintiff testified as follows. He owned
a 1993 Cadillac DeVille. When he lived in Florida, the Cadillac
was registered and insured. When he moved to New Jersey in 2008,
the Cadillac was still operational, but "I was always traveling
by bus, and I didn't need a car." Because he was not using the
Cadillac, he terminated its registration, turned in its license
plates, and cancelled the insurance. He had the Cadillac parked
off the street in the yard of a friend's house in Paterson at the
time of the May 10, 2009 accident.
Because the Cadillac was operable, Harco argues that
plaintiff had to insure it under New Jersey law, and thus that
plaintiff was not entitled to coverage under the policy. However,
operability is not the determining factor under New Jersey law.
7 A-0875-16T1
"[E]very owner or registered owner of an automobile
registered or principally garaged in this State shall maintain
automobile liability insurance coverage."
N.J.S.A. 39:6A-3
(emphasis added); see
N.J.S.A. 39:6A-3.1, -3.3(b);
N.J.S.A. 39:6B-
1. Similarly, "[e]very owner or registrant of an automobile or
autocycle registered or principally garaged in this State shall
maintain uninsured motorist coverage.
N.J.S.A. 39:6A-14 (emphasis
added); see
N.J.S.A. 17:28-1.1. It is not disputed the Cadillac
was principally garaged in New Jersey.
"The language of
N.J.S.A. 39:6A-3, read literally, would
require any owner or registered owner of a vehicle 'registered or
principally garaged' in New Jersey to maintain . . . coverage."
Carmichael v. Bryan,
310 N.J. Super. 34, 42 (App. Div. 1998).
However, in Carmichael we examined both the purpose and objectives
of the statute, and cases under comparable statutes. Id. at 42-
46. Such statutes do not require insurance coverage if "'there
can be no concern of injury by a financially irresponsible or
uninsured motorist.' . . . [W]hen one has taken a vehicle off the
road with no intention of operating the uninsured vehicle,
disqualification . . . would 'extend its scope beyond that intended
by the Legislature.'" Id. at 44 (quoting Foxworth v. Morris,
134 N.J. 284, 289-91 (1993) (quoting Caldwell v. Kline,
232 N.J. Super.
406, 412 (App. Div. 1989))).
8 A-0875-16T1
"[T]he issue really centers on 'the intent of the owner with
regard to operation of the vehicle in or around the time of the
accident.'" Id. at 46 (quoting Gibson v. N.J. Mfrs. Ins. Co.,
261 N.J. Super. 579, 585 (App. Div. 1993)). "Accordingly, in those
instances where the owner's intent not to operate his uninsured
motor vehicle is manifest, the owner is not required to maintain
automobile insurance coverage under N.J.S.A. 39:6A-3[.]" Id. at
46-47 (citing Lilly v. Prudential Ins. Co.,
246 N.J. Super. 357,
360 (Law Div. 1990), aff’d o.b.,
246 N.J. Super. 280 (App. Div.
1991)).
In analyzing the intent not to operate, we did not restrict
the inquiry to inoperability:
An owner without an intent to operate his
vehicle, whether it be because of temporary
inoperability or otherwise, is not the type
of person the Legislature wanted to exclude.
Without the intent to operate and without
registration and license plates, the vehicle
could be no danger to anyone. Moreover, when
the absence of insurance is the result of a
decision to remove the vehicle from operation,
there can be no concern of injury by a
financially irresponsible or uninsured
motorist.
[Id. at 46 (emphasis added) (quoting Lilly,
246 N.J. Super. at 361 (quoting Caldwell, 232
N.J. Super. at 412)).]
In Carmichael, where the vehicle was inoperable, we held
N.J.S.A. 39:6A-3 was "not meant to apply to owners of vehicles
9 A-0875-16T1
which are not operable at the time of the accident so long as
there was no intent to operate them in or around that time." Id.
at 46, 48-49; see id. at 43-44 (noting that the vehicles were
inoperable in Foxworth and Caldwell). However, we also relied on
the broader principles set forth above, which looked to the owner's
"intent to operate his vehicle, whether it be because of temporary
inoperability or otherwise." Id. at 46 (quoting Lilly,
246 N.J.
Super. at 361). We also relied on Lilly and Gibson, where the
vehicles were operable but were not being operated. Id. at 42-
43, 45-48.2
In Lilly, the trial court ruled insurance was not required
as the operable automobile "had not been operating for at least
three months prior to the accident" because the owner "was
financially unable to pay either the financing charges or the
liability insurance on the automobile."
246 N.J. Super. at 359.
The court observed:
There are numerous situations in which an
owner's intent not to operate his motor
vehicle is manifest. Some examples are: the
student who stores his automobile while away
at school; the businessman living in Europe
for a short period of time; the driver who has
lost his license; the owner of an antique but
2
We distinguished a case which denied coverage to an owner of an
uninsured vehicle who "had operated his vehicle up until the time
of the accident." Id. at 45 (quoting Kennedy v. Allstate Ins.
Co.,
211 N.J. Super. 515, 518 (Law Div. 1986), aff’d o.b.,
213 N.J. Super. 137 (App. Div. 1986)).
10 A-0875-16T1
operable automobile and the elderly person who
has decided not to drive any longer.
[Id. at 360.]
We affirmed on the basis of the trial court's opinion. Lilly v.
Prudential Ins. Co.,
246 N.J. Super. 280 (App. Div. 1991).
In Gibson, the plaintiff's affidavit attested that, because
his auto insurance had lapsed, he had not operated his vehicle for
almost two months before the accident but instead parked the
vehicle in his allotted parking space at his house and left it
stationary there for that period.
261 N.J. Super. at 582. The
motion judge dismissed the complaint because the vehicle was
operable and parked at the plaintiff's residence. Id. at 583. We
reversed because the judge "erred in concluding on the papers that
'the factual picture here does not warrant the findings of non-
intent to operate the motor vehicle.'" Id. at 585-86.
We recognize that the cases on which we relied in Carmichael
were decided under statutes and policies whose language differed
from
N.J.S.A. 39:6A-3 and the policy here. Some cases were
decisions under statutes allowing benefits from the Unsatisfied
Claim and Judgment Fund only if the injured person "was not at the
time of the accident, the owner or registrant of an uninsured
motor vehicle." Foxworth,
134 N.J. at 285 (quoting
N.J.S.A. 39:6-
70(d)); Caldwell,
232 N.J. Super. at 408 (quoting
N.J.S.A. 39:6-
11 A-0875-16T1
78(c)). Other cases were decided under a statute or policies
which allowed an insurer to exclude from Personal Injury Protection
(PIP) benefits the owner of an automobile "that was being operated
without personal injury protection coverage." Gibson,
261 N.J.
Super. at 581 (quoting
N.J.S.A. 39:6A-7(b)(1)); see Lilly,
246 N.J. Super. at 359-60; Kennedy,
211 N.J. Super. at 517.
Although those cases did not address
N.J.S.A. 39:6A-3, we
nonetheless ruled in Carmichael that they "shed light on the
legislative intent behind statutes requiring an owner's vehicles
to be insured as a condition of eligibility for various benefits."
310 N.J. Super. at 42. We specifically found "[f]urther insight
into the legislative purpose behind the statutes mandating
automobile insurance coverage is provided by the line of cases
interpreting N.J.S.A. 39:6A-7b(1)." Id. at 45. The same is true
here, as the policy incorporates the requirements of
N.J.S.A.
39:6A-3.
Therefore, we hold that "'whether it be because of temporary
inoperability or otherwise,'" "where the owner's intent not to
operate his uninsured motor vehicle is manifest, the owner is not
required to maintain automobile insurance coverage under N.J.S.A.
39:6A-3[.]" Id. at 46-47 (quoting Lilly,
246 N.J. Super. at 361
(quoting Caldwell,
232 N.J. Super. at 412)). Thus, if plaintiff's
intent not to operate the Cadillac "in or around the time of the
12 A-0875-16T1
accident" was manifest, he was not required to insure the Cadillac
under
N.J.S.A. 39:6A-3, and was not excluded from the policy's
coverage. Id. at 46. Thus, that was the required inquiry here.
V.
Plaintiff claims that inquiry is not required. He contends
the policy's exclusion is repugnant to N.J.S.A. 17:28-1.1's
requirement that all policies have uninsured motorist (UM)
coverage. He cites Motor Club of Am. Ins. Co. v. Phillips,
66 N.J. 277 (1974), and Rider Ins. Co. v. First Trenton Cos.,
354 N.J. Super. 491 (App. Div. 2002).
However, the Legislature overruled Phillips by amending
N.J.S.A. 17:28-1.1. Magnifico v. Rutgers Cas. Ins. Co.,
153 N.J.
406, 420 (1998). One of the amendments provides that "[u]ninsured
and underinsured motorist coverage shall be subject to the policy
terms, conditions and exclusions approved by the Commissioner of
Banking and Insurance."
N.J.S.A. 17:28-1.1(d). "There is no
suggestion here that such approval did not occur." Hardy ex rel.
Dowdell v. Abdul-Matin,
397 N.J. Super. 574, 587 (App. Div. 2008),
rev'd on other grounds,
198 N.J. 95 (2009). Indeed, this exclusion
is included in the "typical policy endorsement, approved by the
Commissioner of Insurance pursuant to N.J.S. 17:28-1.1(d)," quoted
in Craig & Pomeroy, New Jersey Auto Insurance Law § 19.3 (2018).
"In such situations, a reviewing court should typically defer to
13 A-0875-16T1
an administrative agency's expertise." MetLife Auto & Home v.
Palmer, 365 N.J. Super. 293, 299, 303 (App. Div. 2004)
(distinguishing Rider).
Plaintiff raises "nothing that would suggest that the
exclusion was invalidly included in the policy at issue." Hardy,
397 N.J. Super. at 587. No provision of
N.J.S.A. 17:28-1.1 bars
such an exclusion. See Christafano v. N.J. Mfg. Ins. Co.,
361 N.J. Super. 228, 236 (App. Div. 2003) (distinguishing Rider because
there the policy exclusion made N.J.S.A. 17:28-1.1(c)
"surplusage").
Nor is the policy exclusion contrary to the purposes of the
statute, which "is designed to 'provide maximum remedial
protection to the innocent victims of financially irresponsible
motorists' and to 'reduce the drain on the financially-troubled
Unsatisfied Claim and Judgment Fund.'" Palmer,
365 N.J. Super.
at 301 (quoting Shaw v. City of Jersey City,
174 N.J. 567, 571
(2002)). If plaintiff failed to carry insurance on the Cadillac
when required to do so, he was not an innocent victim and would
have no claim on the Fund.
Indeed, the policy's exclusion "supports the statutory
'policy of cost containment by ensuring that an injured, uninsured
driver does not draw on the pool of accident-victim insurance
funds to which he did not contribute.'" Aronberg v. Tolbert, 207
14 A-0875-16T
1 N.J. 587, 601 (2011) (citation omitted).3 "Permitting uninsured
vehicle owners to recover without contributing premiums to the
insurance pool would increase premiums for those motorists who
fulfill their statutory obligations by insuring their vehicles."
Monroe v. City of Paterson,
318 N.J. Super. 505, 510-11 (App. Div.
1999).
Plaintiff argues that, even if he was required to insure the
Cadillac, he was not precluded from recovery of non-economic loss,
citing Dziuba v. Fletcher,
382 N.J. Super. 73 (App. Div. 2005),
aff'd o.b.,
188 N.J. 339 (2006). However, Dziuba was construing
a narrower statutory provision barring only "loss sustained as a
result of an accident while operating an uninsured automobile."
Id. at 81 (quoting
N.J.S.A. 39:6A-4.5(a)). Here, the policy took
the broader approach of excluding all coverage for an owner of a
motor vehicle which was uninsured when it was required to be
insured. Our courts have sustained statutory exclusions of similar
breadth. Perrelli v. Pastorelle,
206 N.J. 193, 204-05 (2011).
"'[W]hen the terms of an insurance contract are clear, it is the
3
Cf. Phillips,
66 N.J. at 292-94 (finding a policy's UM anti-
stacking exclusion was repugnant to
N.J.S.A. 17:28-1.1 because it
denied an insured passenger "any recourse whatever to the UM
coverage on his own car"); Rider,
354 N.J. Super. at 494-95, 500
(finding a policy's UM multi-policy exclusion repugnant because
it denied an insured driver recourse to a policy in which he was
a named insured).
15 A-0875-16T1
function of a court to enforce it as written and not to make a
better contract for either of the parties.'" Cypress Point,
226 N.J. at 415 (citation omitted); Christafano,
361 N.J. Super. at
235.
VI.
The trial court apparently failed to make the required inquiry
whether plaintiff's intent not to operate the Cadillac in or around
the time of the accident was manifest. Indeed, the court issued
its summary judgment order without any oral or written opinion,
in violation of Rule 4:46-2(c) and Rule 1:7-4(a). "When, as here,
summary judgment disposing of the case is granted, the basis for
the trial court's decision must be set forth clearly." Estate of
Hanges v. Metro. Prop. & Cas. Ins. Co.,
202 N.J. 369, 384 n.8
(2010). "Failure to make explicit findings and clear statements
of reasoning 'constitutes a disservice to the litigants, the
attorneys, and the appellate court.'" Gnall v. Gnall,
222 N.J.
414, 428 (2015) (citation omitted). Here, rather than remand for
findings, we reverse because summary judgment was inappropriate
on this record.
In Gibson, and again in Carmichael, we recognized that intent
generally poses an issue of fact requiring resolution at trial:
We recognize the difficulty of enforcing
the exclusion in circumstances where the issue
centers on the intent of the owner with regard
16 A-0875-16T1
to operation of the vehicle in or around the
time of the accident. . . . An examination
of the surrounding facts and circumstances is
required in such an undertaking. The dispute
is a factual one which generally cannot be
decided based merely upon review of
affidavits, certifications, or
pleadings. . . .
We hold that when an insurer comes
forward with proof that [the claimant is] the
owner or registrant of an automobile
registered or principally garaged in this
State, who . . . lacks . . . coverage, a prima
facie case of exclusion has been established.
The . . . claimant must then come forward and
show that the vehicle was not being operated
in or around the time of the accident, based
on a conscious determination to prevent use
of the uninsured vehicle as demonstrated by
the conduct of the owner or registrant.
Although the burden of producing evidence that
the vehicle was purposely not being operated
shifts to the claimant, the ultimate burden
of persuasion as to the appropriateness of the
exclusion should not shift from the insurer.
[Carmichael,
310 N.J. Super. at 47-48 (quoting
Gibson at 585-86).]
In Carmichael, we emphasized that "a court should be
'particularly hesitant' to apply the summary judgment model when
dealing with a 'subjective element[] such as intent.'" Id. at 47
(alteration in original) (quoting Stanley & Fisher, P.C. v.
Sissleman,
215 N.J. Super. 200, 212 (App. Div. 1987)). We reversed
summary judgment because "[a]s in Gibson, the judge in this case
decided the issue of intent based on certifications and deposition
testimony without the benefit of a plenary hearing. Although
17 A-0875-16T1
there was evidence to support the judge's conclusion, there was
also evidence the other way[.]" Id. at 48.
Here, there was evidence pointing both ways. The evidence
that the Cadillac was operable and parked near plaintiff's house
suggested an ability and thus an intent to operate the Cadillac.
However, plaintiff testified that, because he was traveling by
bus, he stopped operating the Cadillac after moving to New Jersey
some months before the accident, terminated its registration,
turned in its license plates, cancelled the insurance, and parked
the Cadillac off the street in a friend's yard.
The court could not simply discredit plaintiff's evidence.
On summary judgment, "'"the court must accept as true all the
evidence which supports the position of the party defending against
the motion and must accord [that party] the benefit of all
legitimate inferences which can be deduced therefrom."'" Brill,
142 N.J. at 535 (citation omitted).
As in Carmichael, the conflicting evidence in "this case
presented a genuine issue of material fact, the intent of the
plaintiff at various times, which ought not to have been resolved
on a motion for summary judgment," but must be determined at trial.
310 N.J. Super. at 49.
Reversed and remanded. We do not maintain jurisdiction.
18 A-0875-16T1
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