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Housel v. Theodoridis

September 04, 1998

DENISE HOUSEL, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR TAMMARA HOUSEL, AND CHARLES T. HOUSEL, PLAINTIFFS-APPELLANTS,
v.
STYIANOS THEODORIDIS AND STANLEYS POOLS & SPAS, DEFENDANTS-RESPONDENTS.



Before Judges King, Kestin and Cuff.

The opinion of the court was delivered by: Kestin, J.A.D.

[9]    Submitted *fn1 : April 22, 1998

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Warren County.

On leave granted, plaintiffs in this automobile accident case appeal from the trial court's order denying their motion for summary judgment on the issue of liability. We reverse.

Plaintiff Denise Housel, both individually and as Guardian ad Litem for her daughter, Tammara Housel, and Charles T. Housel, per quod, filed a personal injury suit against defendants. The matter was arbitrated pursuant to R. 4:21A and resulted in an award to plaintiffs of $30,000. Defendants demanded trial de novo. R. 4:21A-6. Thereafter, defendants moved for summary judgment dismissal of the case, and plaintiffs cross-moved for summary judgment solely on the issue of liability. The trial court denied both motions. Plaintiffs' ensuing motion for reconsideration was also denied. We granted plaintiffs' unopposed motion for leave to file an interlocutory appeal.

According to Denise Housel's deposition, at 10:00 a.m. on Saturday, August 28, 1993, she was driving her eleven-year-old daughter, Tammara, to hockey practice in a local park. They were in a 1986 Oldsmobile Delta, a pre-airbag model, and both were wearing shoulder/waist seatbelts. Traveling eastbound on Route 57, East Washington Avenue, they were stopped at a red light at its intersection with Route 31, in the right lane, preparing to make a right turn.

Defendant Styianos Theodoridis testified in his deposition that at the time of the accident he was driving his business vehicle, a 1986 Ford van, on Route 57, heading east on his way to perform work for his family-owned swimming pool construction operation. When he was ten to fifteen feet behind the Housel automobile, he noticed it was stopped. At that point he became blinded by the sun. Theodoridis hit the brakes, but his van collided with the rear of the Oldsmobile. The impact of the collision pushed plaintiffs' automobile approximately one-and-a-half car lengths onto Route 31.

A police report written up at the scene shortly after the incident indicated that the Oldmobile's brake lights were fully operational after the accident. A summons for careless driving, N.J.S.A. 39:4-97, was issued to defendant, for which he paid the fine in due course.

Defendants' motion for summary judgment was premised on the argument that defendants' van was an "automobile" as defined in N.J.S.A. 39:6A-2a, subjecting plaintiffs' claims to the verbal threshold, which defendants contended had not been met. In response to plaintiffs' cross-motion for summary judgment on liability, defendants raised no issue other than to argue that plaintiffs' failure to meet the verbal threshold precluded their suit.

Plaintiffs' cross-motion was accompanied by a "statement of undisputed material facts" conforming with the requirements of R. 4:46-2(a), and containing references to the record as mandated by the rule. Defendants neither submitted a statement of material facts with their motion papers, nor with their response to plaintiffs' cross-motion as required by R. 4:46-2(b). Plaintiffs' attorney appeared for oral argument on the motions; defendants' attorney did not. Thus, defendants offered no other opposition to plaintiff's cross-motion except for the verbal threshold argument.

Defendants' motion for summary judgment on verbal threshold grounds was denied because the motion Judge found the van was used for business purposes, and was thus "outside of the verbal threshold." Defendant has not appealed from this ruling and we do not address it. See N.J.S.A. 39:6A-2a ("`Automobile' means a private passenger automobile. . . ."); Wagner v. Transamerica Ins. Co., 167 N.J. Super. 25, 31-32 (App. Div.), certif. denied, 81 N.J. 60 (1979).

The Judge also found there was an issue of fact in dispute that precluded a grant of plaintiffs' cross-motion for summary judgment on liability. The Judge's reasoning is best explained by the following on-the-record exchange, which includes his ruling:

Plaintiff has also moved for summary judgment on the issue of liability.

[PLAINTIFF'S COUNSEL]: Which, Your Honor, just for the record, it was unopposed by the defendants in their responding papers. They made no submission on our cross-motion as to liability. They only submitted additional ...


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