KEITH DECKER v. PLYMOUTH ROCK ASSURANCE

NOT FOR PUBLICATION WITHOUT THE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-4834-18T3

KEITH DECKER,

          Plaintiff-Appellant,

v.

PLYMOUTH ROCK ASSURANCE
and KATHLEEN HILL,

     Defendants-Respondents.
______________________________

                   Argued March 11, 2020 – Decided April 1, 2020

                   Before Judges Haas and Mayer

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Docket No. L-8989-18.

                   Charles Thomas Kannebecker argued the cause for
                   appellant.

                   Glenn Donald Curving argued the cause for
                   respondents (Riker Danzig Scherer Hyland & Perretti
                   LLP, attorneys; Glenn Donald Curving, of counsel and
                   on the brief; Peter M. Perkowski, Jr., on the brief).

PER CURIAM
      Plaintiff Keith Decker appeals from a June 24, 2019 order granting

summary judgment to defendants Palisades Safety and Insurance Association 1

(Palisades) and Kathleen Hill. We affirm.

      We briefly summarize the facts.         Plaintiff was a passenger in his

employer's car when the car was stuck by the tortfeasor's vehicle. Plaintiff

suffered injuries as a result of the collision. Because the employer's car was

insured by Palisades, plaintiff sought underinsured motorist benefits under that

policy. Palisades eventually determined plaintiff was an additional insured as

an occupant of the employer's vehicle.

      However, Palisades deemed plaintiff ineligible for underinsured motorist

coverage due to the "step-down" provision in its policy. According to Palisades,

its policy limited coverage for additional insureds, such as plaintiff, to $15,000.

Because plaintiff accepted the sum of $50,000 from the tortfeasor's insurance

carrier, Palisades determined "there [was] no triggering of [underinsured

motorist] coverage under [the employer's] policy" and therefore denied

plaintiff's claim.




1
  The correct designation for the corporate defendant is Palisades Safety and
Insurance Association.
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          In December 2018, plaintiff filed suit against defendants for underinsured

motorist coverage under his employer's policy with Palisades and for other

relief.     One month later, defendants filed their answer and the court set

November 10, 2019 as the discovery end date. In May 2019, defendants moved

for summary judgment, which plaintiff opposed.

          The judge reviewed the written arguments and considered the oral

arguments of counsel on June 21, 2019. Despite serving no discovery, plaintiff

argued further discovery was required prior to considering defendants' motion

for summary judgment.           Plaintiff claimed he needed the "deposition of

[Palisade's] claims adjuster to determine if [the employer] was provided proper

notice that the step-down provision was included in the Palisades policy."

Defendants countered "further discovery [was] not needed since [p]laintiff, as

an incidental beneficiary[,] has no standing to challenge the policy as [p]laintiff

would never have received notice of a change in the Palisades policy."

          In granting summary judgment, Judge Avis Bishop-Thompson concluded

the tortfeasor was not underinsured because the tortfeasor's insurance carrier

paid $50,000 to settle plaintiff's claim, and Palisades' policy limited plaintiff's

recovery as an additional insured to $15,000. Thus, the limit of the tortfeasor's




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insurance policy was greater than the limit of Palisades' policy and plaintiff was

not entitled to underinsured motorist benefits.

      In addition, the judge determined no additional discovery propounded by

plaintiff would satisfy his causes of action against defendants because, as a

matter of law, plaintiff lacked standing to assert claims which legally belonged

to plaintiff's employer as the Palisades policy holder. Nothing in the record

indicated plaintiff sought an assignment of his employer's right to challenge

notice of the policy's step-down provision or any other matters related to

Palisades' policy.   The judge also found plaintiff failed to "specify what

additional discovery would establish [his] claims."

      On appeal, plaintiff contends he had standing to challenge provisions in

Palisades' policy issued to his employer, including the step-down provision. In

addition, he argues summary judgment was premature because the discovery end

date had not expired.

      We affirm for the cogent reasons expressed by Judge Bishop-Thompson

in her detailed written rider attached to the June 24, 2019 order. We add only

the following comments in response to plaintiff's contention that the judge

erroneously granted summary judgment prior to the close of discovery.




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      Rule 4:46-1 permits a party to file a motion for summary judgment before

the close of discovery. When such a motion is filed, claims of incomplete

discovery will not defeat summary judgment if further discovery will not

patently alter the outcome. Wellington v. Estate of Wellington,  359 N.J. Super.
 484, 496 (App. Div. 2003). A party opposing a motion for summary judgment

on the grounds that discovery is incomplete must "demonstrate with some degree

of particularity the likelihood that further discovery will supply the missing

elements of the cause of action." Badiali v. N.J. Mfrs. Ins. Grp.,  220 N.J. 544,

555 (2015) (quoting Wellington,  359 N.J. Super. at 496). In opposing summary

judgment, a party must identify the specific discovery needed. See Trinity

Church v. Lawson-Bell,  394 N.J. Super. 159, 166 (App. Div. 2007) ("A party

opposing summary judgment on the ground that more discovery is needed must

specify what further discovery is required, rather than simply asserting a generic

contention that discovery is incomplete."). "[D]iscovery need not be undertaken

or completed if it will patently not change the outcome." Minoia v. Kushner,

 365 N.J. Super. 304, 307 (App. Div. 2004) (citations omitted).

      Here, plaintiff failed to specify with any particularity the discovery to be

conducted and how such discovery would change the outcome of the case. In

the six months following the filing of his complaint, plaintiff admittedly


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propounded no discovery.         He served no deposition notices and no

interrogatories. Overlooking his own failure to serve discovery, plaintiff argued

he still had time to conduct discovery because the discovery end date had not

expired. Plaintiff never identified specific individuals he sought to depose or

explain how additional discovery would preclude summary judgment as a matter

of law. Having reviewed the record, defendants' motion for summary judgment

was properly granted for the reasons expressed in the judge's comprehensive

written statement of reasons dated June 24, 2019.

      Affirmed.




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