On appeal from the Superior Court of New Jersey, Law Division, Morris County.
Judges Gaulkin, Shebell and Skillman. The opinion of the court was delivered by Shebell, J.A.D.
Plaintiffs, Denise Norman and Charles Norman, appeal from the Law Division's grants of summary judgment in favor of defendants, Selective Insurance Company of America (Selective) and Bowling Green Insurance Agency (Bowling Green). Plaintiffs filed a four-count complaint, alleging that unidentified defendants, Jane Doe and John Roe, caused Denise Norman personal injury. The Norman vehicle was insured by Selective; Bowling Green, the local agency, sold Mr. Norman the auto insurance policy. Plaintiffs charged that Selective, Bowling Green and certain unidentified agents and employees caused plaintiffs to purchase insurance with inadequate policy limits for uninsured and underinsured motorist protection. Plaintiff, Charles Norman, asserted a per quod claim. Plaintiffs demanded trial by jury.
Selective and Bowling Green moved for summary judgment. Following oral argument, the Law Division judge granted summary judgment to both moving defendants, and dismissed plaintiffs' entire complaint.
Discovery revealed that on April 18, 1986, at approximately 9:15 a.m., Mrs. Norman, then thirty-three-years old, was on her way to work as a medical assistant and receptionist for a doctor in Parsippany. While stopped for a traffic light at the intersection of Berkshire Valley Road and Route 15, her car was struck by a late 1970's green Volvo, driven by a blonde-haired woman in her early forties.
After the accident, both drivers crossed the intersection and pulled into a restaurant parking lot. Mrs. Norman and the other driver determined that, although Mrs. Norman felt shaken up and nervous, both were all right and that neither car was damaged. After about five minutes, the drivers departed without exchanging identities, licenses, or any other information. Neither reported the accident to the police. Mrs. Norman did not notice the license plate on the other vehicle, and no witnesses were identified. The next day Mrs. Norman's neck and
shoulder were stiff and painful. Although her back hurt, she did not complain about it at that time.
Mrs. Norman claims severe injury to her back -- a lumbar spine injury which required her hospitalization from August 26 to September 7, 1986. She received traction, physical therapy, bed rest, and analgesics. Her treating physician informed Selective by letter dated December 10, 1986 that the back injury resulted from the accident. Mrs. Norman was again hospitalized from January 13, 1987 to February 7, 1987 for a laminectomy and fusion. She underwent a second laminectomy in January 1988.
Plaintiffs initiated this lawsuit in March 1988. The sole issue at the summary judgment hearing was whether the hit-and-run provision of the Selective policy covered Mrs. Norman's accident. The Selective policy defines an uninsured motor vehicle as (1) a vehicle to which no liability bond or policy applies when the accident occurs; (2) with regard to bodily injury only, a hit-and-run vehicle whose owner or operator cannot be ascertained, or (3) a vehicle with a liability bond or policy when the insurance carrier denies coverage or becomes insolvent. The judge found that the Normans could not recover under the uninsured motorist coverage of the policy because "no reasonable effort was made to identify the motor vehicle or the operator thereof, absolutely none."
The Normans contend that an issue of fact existed as to whether Mrs. Norman acted reasonably in failing to determine the other driver's name and other identifying information. The Normans claim that they are entitled to recover under their policy with Selective because by the time Mrs. Norman recognized her injury, the other driver could not be identified, qualifying the accident as a "hit-and-run."
N.J.S.A. 17:28-1.1 requires that each motor vehicle liability policy issued in New Jersey include certain coverage for damages caused by uninsured motor vehicles. The statute defines an uninsured ...