On appeal from Superior Court of New Jersey, Law Division, Monmouth County, L-2015-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Collester and Lyons.
In this personal injury action following entry of final judgment by consent, plaintiff Kenneth Huhn and intervenor First Trenton Indemnity Insurance Company (First Trenton) appeal from the portion of the September 13, 2005, order by Judge Jamie S. Perri granting defendant Joseph Altieri's motion for summary judgment on allegations of agency and negligent entrustment as set forth by plaintiff in the second count of his original complaint and from the March 3, 2006 order granting declaratory judgment in favor of defendant Allstate Insurance Company. They further appeal the denial of cross-motions to vacate the court's September 13, 2005 order pursuant to R. 4:50-1.
The facts are undisputed, and the narrative begins with an automobile accident at about 2:30 p.m. on January 17, 2004. Plaintiff Kenneth Huhn and his wife Sonya, residents of Colts Neck, New Jersey, were traveling north in a 2001 BMW operated by Sonya on Schoolhouse Road in Manchester Township. The weather was clear and the road surface dry. At the same time, Peter Altieri of Whiting, New Jersey was traveling in the southbound lane driving a 1991 Toyota Celica with Connecticut license plates and registered in Connecticut to his son, defendant Joseph Altieri. The Celica suddenly swerved into the northbound lane and struck the Huhn car head-on. Police and EMT personnel responded to the scene of the severe accident, and the occupants of both vehicles were transported to Jersey Shore University Medical Center for treatment. On arrival, Peter Altieri was pronounced dead. He was eighty-nine years old. Plaintiff Kenneth Huhn suffered severe personal injuries. The fatal motor vehicle police report found that the negligent operation by Peter Altieri caused the accident.
The Celica driven by Peter Altieri was purchased by his son Joseph in 1991. At that time Joseph was a resident of Connecticut, and he registered the vehicle in that state. Through a Connecticut insurance agency he negotiated and purchased two Allstate insurance policies. The first was an automobile policy covering the Celica with a bodily injury limit of $100,000 per person per accident. There is no issue as to the applicability and availability of this policy, and the policy limit was tendered by Allstate. The second insurance policy was a personal umbrella policy (PUP) of $1 million, and this policy is much in controversy.
In September 2000, Joseph bought a second home in Arizona while maintaining his residence in Connecticut. Two years later he decided to live primarily in Arizona but keep his house in Connecticut while considering making Arizona his permanent home. His father Peter was a widower living alone in a trailer home in Whiting. In 2002, Peter totaled his car in an accident, the details of which are not on the record, and it is not known whether Peter was at fault.
In November 2002, Joseph left the 1991 Celica at his father's home in Whiting for storage as well as for his own use when he would come to New Jersey, as he did on at least two occasions. He also gave his father permission to use the car in his absence. At this time Peter had use of a friend's car, and he told Joseph that he did not like driving the Celica. However, when his friend died, Peter began using the Celica.
In September 2003, Joseph was living in Arizona, and he renewed both the Allstate automobile policy and the PUP. The policies were mailed to him at his address in Cottonwood, Arizona. In late 2003, Joseph decided that he would live permanently in Arizona and told Peter he wanted to sell the Celica. After Peter said he wanted to buy it, they agreed on a price of $2,500. Joseph signed over title to the car to his father and mailed it to him on January 4, 2004, thirteen days before the accident.
After the accident, the Celica certificate of title was found in the glove compartment. Peter had signed it as purchaser, although he had not paid the $2,500 purchase price. Peter had not obtained new insurance, but he told Joseph he was in the process of doing so. The Celica was still registered in Connecticut, even though it had not been housed or driven in that state since November 2002, when it was first garaged with Peter in New Jersey. The Connecticut registration was due to expire in May, 2004, four months after the accident, and Joseph's automobile insurance policy covering the Celica was to expire on January 21, 2004, four days after the accident.
Joseph testified in his deposition that aside from Peter's 2002 accident, he was aware of only one previous accident involving his father, which occurred in 1995 when his father was rear-ended on the Garden State Parkway. To his knowledge Peter had no points on his driver's license or any moving violations. He was also unaware of any medical condition or physical inability of his father to operate a motor vehicle. He described his father's health as "robust" in his advanced age. He said Peter was returning from visiting his cousin in Howell when the accident occurred.
On April 20, 2004, plaintiff filed his complaint for personal injuries against the Estate of Peter Altieri alleging negligence and against Joseph Altieri alleging negligent entrustment and vicarious liability for his father's negligence causing the accident. In February 2005, Joseph Altieri filed a motion for summary judgment and attached an affidavit asserting that his father was not driving the Celica as his agent, servant, or employee, and had not used the car on any business for Joseph. Plaintiff responded to Joseph's motion and filed a cross-motion seeking summary judgment as to Peter's negligence and the proximate cause of plaintiff's injuries. He also moved for leave to file an amended complaint to add Allstate as an additional defendant and for a declaration that coverage under the PUP purchased by Joseph extended to his father at the time of the accident.
During oral argument on August 11, 2005, plaintiff's counsel made a concession that the issue of agency alleged in the complaint was not an issue in the case and that the theory of liability as to Joseph Altieri was based solely on negligent entrustment. Following oral argument Judge Perri first granted Joseph Altieri's motion for summary judgment on the issues of agency and negligent entrustment. She followed the common law of this State which is based on fault and shields an owner of an automobile from liability when the owner has not been negligent and is not related to the driver so as to justify the imposition of vicarious liability. Haggerty v. Cedeno, 279 N.J. Super. 607, 611 (App. Div. 1995); Harvey v. Craw, 110 N.J. Super. 68, 73-74 (App. Div.), certif. denied, 56 N.J. 479 (1970).
Judge Perri held as follows:
The motion filed on behalf of the defendants ... set forth the claim that defendants were entitled to summary judgment dismissing the complaint against Joseph Altieri on the basis that Peter Altieri was not acting as the agent, servant or employee of Joseph. Plaintiff's counsel has indicated that really was not a theory in this case and I think both sides can see there is no evidence in this case that Peter was acting as Joseph's agent at the time of the accident. Therefore, to the extent that there was a claim against Joseph based on the theory of agency, that aspect of the claim is dismissed.
With regard to defendant's motion for summary judgment, dismissing all claims against Joseph Altieri on the theory of negligent entrustment, the plaintiff has asserted a negligent entrustment claim against Joseph Altieri ... plaintiff contends that Joseph's decision to entrust his vehicle to an eighty-eight year old father whose vehicle had previously been declared a total loss after a 2002 accident "was clearly negligent entrustment."
Under New Jersey law, "the owner of an automobile may be liable for injury from the operation of that car placed in the hands of one he knows or reasonably to know is incompetent to operate so that the owner ought reasonably to anticipate that in its operation injury will be done to others." Mead v. Wiley M.E. Church, 4 N.J. 200, 206 (1950). The proofs in this matter show that at the time of the 2002 accident, Peter was eighty-eight years of age and was described by his son as being in "robust good health." The proofs before the court indicate that Peter had been involved in an accident in which he made a left-hand turn in front of another vehicle. There is no proof in the record regarding the actual circumstances of the accident or the comparative fault, if any, of the other driver. No injuries were sustained as a result of the accident. Plaintiff has made a variety of claims regarding possible motivations for Joseph's entrustment of the vehicle to his father.
He claims that there may have been a subterfuge. He claims without any support on the record that Peter may have tried to get insurance and could not because of his age or because of his driving history, that Peter may have been uninsurable. The fact that Peter Altieri was involved in an accident approximately two years prior to this accident and the details of which are unknown in and of itself is not proof that the was likely to cause injury to another if he operated a vehicle.
The claims that Peter was unable to get insurance that he had some sort of problem with his driving record, that there was some motivation that would rise to the level of proof that Joseph was on notice of a problem that would support a claim of negligent entrustment, those facts are simply not before the court. The mere fact that Peter was eighty-eight years old in and of itself is not competent proof that Joseph could be found guilty of negligent entrustment. Indeed, Ms. Huhn, the driver of the other vehicle, I believe was seventy-two or seventy-three at the date of the happening of the accident. . . . I believe it would be inappropriate and improper to draw the conclusion that the age of the driver alone can support a claim of negligent entrustment. . . . For all these reasons the court finds that the plaintiff has failed to come forward with any competent, evidential materials that would raise an issue of genuine material fact regarding the claim of negligent entrustment. On that basis, the court is constrained to grant the defendant's motion.
Judge Perri also granted plaintiff partial summary judgment against defendants Estate of Peter Altieri and Joseph Altieri, executor, as to the issue of negligence and proximate cause, reserving for trial the issue of damages. The court further granted plaintiff's motion for leave to file and serve an amended complaint to add Allstate Insurance Company as a direct defendant for declaratory judgment as to the PUP issued to Joseph Altieri. On January 6, 2006, the court ...