April 2, 2008
SAMUEL A: MELIA AND ROSEMARY M. MELIA, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
DANIEL WALSH,*FN1 DEFENDANT, AND DENNIS CORCORAN, AND H.G. EDWARDS & CO., DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.
On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-0822-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 30, 2007
Before Judges Kestin and Graves.
In this automobile negligence case, plaintiffs Samuel A: Melia and Rosemary M. Melia, who was a passenger in the vehicle driven by her husband, appeal from an order of August 12, 2005, determining they "are subject to the verbal threshold," and a subsequent order dated June 12, 2006, dismissing their complaint with prejudice because they did not have a medical expert to establish permanency. See N.J.S.A: 39:6A-8(a) ("An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment.").
In defendants' cross-appeal, which must be addressed if we reverse and remand on plaintiffs' appeal, Dennis Corcoran (Corcoran) and H.G. Edwards & Co. (H.G. Edwards) claim the trial court erred in granting plaintiffs' motion for summary judgment as to liability. Based on our review of the record in light of the arguments presented, we are convinced there are genuine issues of material fact that should not have been resolved by the motion judge. We therefore reverse on plaintiffs' appeal and defendants' cross-appeal and remand for further proceedings consistent with this opinion.
On July 7, 2003, between 4:30 and 5:00 a.m., defendant Corcoran was driving a 1996 Toyota pickup truck northbound on the Garden State Parkway (Parkway), with "an eight foot extension ladder" attached to a ladder rack on the top of the pickup truck. In answers to interrogatories, Corcoran admitted the 1996 Toyota pickup truck was owned by defendant H.G. Edwards, and, at his deposition, Corcoran testified H.G. Edwards is "a trade name for an LLC. The LLC is C. & D. Windows, LLC. I'm the sole principal." H.G. Edwards has six employees, in addition to Corcoran, and it is in the business of selling and installing windows and doors.
According to Corcoran, while he was between Exits 139 and 142 on the Parkway, the ladder fell off the pickup truck and landed on the road. In response to plaintiffs' interrogatories, Corcoran stated it was "early in the morning just as the sun was coming up," when a passing motorist pointed to the roof of his truck, and Corcoran determined "the ladder was no longer on my vehicle." At his deposition, Corcoran testified:
Q: What did you do after coming to the realization that something happened with the ladder?
A: It just so happened that there was an exit ramp. So I exited.
Q: Do you remember what exit that was?
Q: After you got off the exit what did you do?
A: Well, while I was pulling off the exit I looked in the mirror to see if I could see the ladder. I could. So I pulled off the exit ramp in hopes of being able to turn around and get back to the [P]arkway. And I couldn't figure out how to do that.
Q: Okay. So what did you do to try to get the ladder back?
A: Well, when I knew that I couldn't figure out how to get back onto the [P]arkway I called the [S]tate [P]olice to tell them . . . a ladder had fallen off my truck.
Q: And did the [S]tate [P]olice ask you where you were located?
A: Yes. And I believe I told him the street I was on, but I don't recall what street that was.
Q: All right. How did you get off the phone with the [S]tate [P]olice?
A: I just informed them of the ladder and they said they'd take care of it. And I went to work.
Subsequently, Corcoran learned from the State Police "that there was an accident," but the accident "wasn't serious." According to a motor vehicle accident report prepared by a New Jersey State Trooper, at approximately 5:40 a.m. on July 7, 2003, in the vicinity of milepost 139, an automobile driven by Daniel Walsh (Walsh) struck plaintiffs' vehicle as Walsh "attempted to move to the center lane to avoid a ladder in the roadway." The accident report also contains a diagram which shows: (1) there are five northbound lanes at the location of the accident; (2) the metal ladder was located in the fourth lane from the right shoulder of the Parkway; and (3) the right front portion of the Walsh vehicle struck the driver's side of plaintiffs' vehicle while plaintiffs were traveling in the middle lane, or third lane from the right shoulder of the Parkway. The accident report states the "ladder fell from a 1996 Toyota pickup, license plate: X61Y86 (N.J.)," and it identifies Corcoran as the owner of the ladder.
At his deposition, Walsh testified that immediately prior to the accident, he was traveling at approximately fifty-five m.p.h. in the middle lane of the Parkway. Walsh described the events leading up to the accident as follows:
I was driving along the [P]arkway. There was a car ahead of me. Next thing I know the car ahead of me like swerved. And right in front of me was this ladder. I didn't have much time to react. I hit the brakes. . . . I remember hitting the ladder, going toward the right. I don't remember actually jerking my wheel to the right. I just remember hitting the brakes and head[ing] towards that way.
I don't remember me actually hitting . . . the other car. I just remember the collision and me being spun back towards my left. . . .
Q: All right. You mentioned that while you were traveling prior to the accident there was a car in front of you. Is that correct?
Q: That car swerved, correct?
A: Correct. It hit the brakes. Like his brakes lights went on real quick. Then made it to the right I believe.
Q: After the car swerved into the right lane did you notice anything in the roadway?
A: The ladder.
Q: Do you know what kind of ladder it was?
A: Looked like an extension ladder.
Q: Do you know if it was metal or wood?
Q: When you first saw the ladder how much distance was [there] between your vehicle and the ladder?
A: Approximately 30 feet maybe.
Q: And what was the distance from the front of your vehicle to the back of that vehicle in front of you just before it swerved?
A: From the front of the vehicle?
Q: In front of your vehicle to the back of that vehicle when that other vehicle swerved?
A: Maybe 40 feet approximately.
Q: And that other vehicle did not hit the ladder to your knowledge?
A: Not to my knowledge.
In their complaint filed on March 4, 2004, plaintiffs alleged defendant Corcoran was negligent for "failing to have the ladder properly attached and/or secured to his vehicle thereby causing the ladder to fall off the vehicle into the roadway." And Walsh, who has settled with plaintiffs, was negligent for causing his vehicle to collide with plaintiffs' vehicle. In July 2005, plaintiffs filed a two-part motion seeking (1) a judicial determination they were not subject to the verbal threshold for purposes of recovering non-economic damages, such as pain and suffering; and (2) summary judgment as to liability against defendants Corcoran and H.G. Edwards. With regard to the verbal threshold, established by N.J.S.A: 39:6A-8, plaintiffs noted it applies only to lawsuits against an "owner, registrant, operator or occupant of an automobile," and plaintiffs argued the 1996 Toyota pickup truck was not an automobile within the meaning of the No Fault Law:
"Automobile" means a private passenger automobile of a private passenger or station wagon type that is owned or hired and is neither used as a public or livery conveyance for passengers nor rented to others with a driver; and a motor vehicle with a pickup body, a delivery sedan, a van, or a panel truck or a camper type vehicle used for recreational purposes owned by an individual or by husband and wife who are residents of the same household, not customarily used in the occupation, profession or business of the insured other than farming or ranching. An automobile owned by a farm family copartnership or corporation, which is principally garaged on a farm or ranch and otherwise meets the definitions contained in this section, shall be considered a private passenger automobile owned by two or more relatives resident in the same household.
In the Law Division and on appeal, plaintiffs contend the Toyota pickup truck driven by Corcoran did not meet the statutory definition of an automobile because it was owned by H.G. Edwards and it was used for commercial purposes. During oral argument before the trial court, plaintiffs' attorney argued:
[T]he testimony [from Corcoran at his deposition] is that . . . he's the sole salesperson of the company. He used the truck to go visit customers. He had a ladder on the truck. He used the ladder to measure windows on second floors of homes. . . . [T]he [truck] was registered as a commercial vehicle. He transported windows in the [truck]. . . . I asked him specifically, do you use the truck in furtherance of H.G. Edwards business? Answer: Yes, I do.
Even if . . . you get past the statute for the fact that it's not owned by an individual and . . . the [c]court doesn't see it that way, it's still being used for commercial purposes.
In support of their position that the pickup truck was a commercial vehicle, plaintiffs provided the court with a transcript of Corcoran's deposition testimony, in which he acknowledged using the pickup truck to meet with potential customers.
Q: Are you considered the salesperson for the company?
Q: If somebody wants windows or doors installed in their home, would you be required to go and visit those people, or would those people come to your office?
Q: If you had occasion to go visit the people that wanted the doors or windows installed, would you drive that truck, the 1996 pickup, to their home?
In a cross-motion for summary judgment, Corcoran and H.G. Edwards argued the Toyota pickup truck was "primarily used for commuting purposes which does make it a private passenger automobile. It does have PIP on it, and therefore the verbal threshold would apply." Defendants also argued plaintiffs' complaint should be dismissed because their injuries were insufficient to satisfy the verbal threshold.
In response to plaintiffs' motion for summary judgment as to liability, defendants noted the vehicle in front of Walsh had successfully avoided the ladder on the roadway and, argued if Walsh had not been tailgating the car ahead of him, he too would have safely avoided the ladder without striking plaintiffs' vehicle. Defendants' claim is supported by Walsh's testimony indicating he was only forty feet behind the vehicle in front of him while he was going fifty-five miles per hour. Defendants also relied on Samuel Melia's deposition testimony indicating he and his wife were traveling in the second lane from the right shoulder of the Parkway, and Walsh's vehicle was traveling two lanes to his left immediately prior to the accident:
Q: Did you see any vehicles in the lane directly to your left, which would have been the center of the five lanes just before this accident occurred?
A: . . . To my left driving alongside of me?
A: There was nobody alongside of me.
Q: How about alongside of Mr. Walsh?
A: . . . There was a car in the fifth lane and I think that's why he saw the ladder, avoided it. I thought he was going to go into the fifth lane and then shot back over to me.
Q: Which lane was the ladder in?
A: The fourth.
Q: Were there any vehicles in the third lane just before this accident occurred?
A: Not alongside of me but there was in the front, way ahead of us.
Q: So if I'm understanding you correctly, had Mr. Walsh moved from the fourth lane to the third lane only there would not have been an accident?
A: If he saw the ladder and moved into the third lane, is that what you're saying?
A: I don't know. He probably could have avoided the accident.
In addition, defendants argued a jury should determine whether Samuel Melia was negligent and whether his negligence caused or contributed to the accident:
Mr. Melia admits that he was speeding. That he was going over the speed limit, and I believe that is sufficient evidence to show that there's a violation of a statute for a jury to determine whether that was or was not a proximate cause of the accident as well. Had he been going slower, he may have been able to avoid . . . Mr. Walsh.
Following oral argument on August 12, 2005, the trial court granted plaintiffs' motion for summary judgment on liability, reasoning as follows:
It is clear that the ladder that fell off the truck owned by H.G. Edwards and operated by [Corcoran] was the proximate cause of the instant accident. Therefore, liability on behalf of Corcoran and H.G. Edwards has been shown.
Consequently, the plaintiff's motion for summary judgment with respect to liability is granted.
Nonetheless, the court also granted defendants' motion for summary judgment and dismissed plaintiffs' complaint after concluding (1) plaintiffs were subject to the verbal threshold, and (2) plaintiffs failed to show that their injuries were sufficient to satisfy the verbal threshold. With regard to the status of the Toyota pickup truck, the court made the following findings:
An occasional commercial use does not mean that the vehicle in question is customarily used for business purposes. There is nothing in the record herein that Corcoran used the pickup even as much as once a week for commercial purposes, as with the case in [Thompson v. Potenza, 364 N.J. Super. 462 (App. Div. 2003)] where the [c]court determined that the vehicle in question used once a week for commercial purposes remained a personal vehicle.
Further, the accident occurred as Corcoran was commuting to work, not as he was using the truck for any business purposes at all.
Accordingly, this [c]court is satisfied that the 1996 Toyota pickup truck qualifies as a private passenger vehicle under [N.J.S.A: 39:6A-2(a)].
On August 22, 2005, plaintiffs filed a Notice of Motion for Reconsideration of the court's order dated August 12, 2005. By order of September 25, 2005, the trial court reaffirmed defendants' entitlement to the verbal threshold defense but reinstated the complaint as to Samuel Melia based upon a medical report authored by Dr. Richard Bioardo. However, prior to trial, Samuel Melia advised the court he was not going to produce Dr. Bioardo as an expert witness. Therefore, on June 12, 2006, the court entered an order dismissing his complaint with prejudice.
On appeal, plaintiffs contend we "must hold, as a matter of law, that in order for a pick-up truck . . . to receive the classification as an 'automobile' under N.J.S.A: 39:6A-2a it must be owned only by an individual person or husband and wife who reside in the same household." We conclude, however, that ownership or registration of a vehicle is not dispositive as to whether the vehicle qualifies as an automobile under N.J.S.A: 39:6A-2(a). "Rather, the statute refers to a 'type' of vehicle, and then excludes specific vehicles based on their use." N.J. Mfrs. Ins. Co. v. Hardy, 178 N.J. 327, 334 (2004). See also Estate of Leeman v. Eagle Ins. Co., 309 N.J. Super. 525, 533 (App. Div. 1998) ("The plain language of N.J.S.A: 39:6A-2(a) provides that pick-up trucks may be considered 'automobiles' unless they are customarily used in the occupation, profession, or business of the insured, other than for farming or ranching."); Bello v. Hurley Limousines, Inc., 249 N.J. Super. 31, 37 (App. Div. 1991) ("The motor vehicle's classification . . . does not change by its temporary or transitory use for some other purpose. Rather, the motor vehicle's general status controls its classification."); Mario A: Iavicoli, No Fault and Comparative Negligence In New Jersey § 41, at 96 (1973) ("Pick- up body trucks, delivery type sedan trucks, panel trucks and camper type trucks used for personal, non-business or recreational activities are considered automobiles for the purposes of the Act, provided such motor vehicles are not customarily used in the occupation, profession or business of the insured.").
In the present matter, based on the deposition testimony of defendant Corcoran, it is clear that the Toyota pickup truck was used in his business (selling and installing windows and doors), but it is unclear from the record whether the pickup truck was "customarily used" in Corcoran's business. Nevertheless, because plaintiffs are entitled to all favorable inferences at this stage of the proceedings, we are satisfied there is a genuine issue of material fact regarding the status of the pickup truck, and the motion judge went beyond the bounds of summary judgment in deciding that the pickup truck should be classified as an automobile. In our view, the evidence regarding Corcoran's use of the truck is not so "one-sided" that defendants are entitled to prevail as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Thus, on plaintiffs' appeal, we reverse the order of August 12, 2005, which states "that plaintiffs are subject to the verbal threshold for purposes of recovering . . . non-economic damages," and we also reverse the order of June 12, 2006, which dismissed plaintiffs' complaint because they did not have sufficient medical evidence to satisfy the verbal threshold. We are also satisfied that defendants' cross-appeal from the trial court's order granting plaintiffs summary judgment as to liability has merit. In granting plaintiffs' motion for summary judgment, the court stated: "It is clear that the ladder that fell off the truck . . . was the proximate cause of the instant accident." Nevertheless, during a subsequent proceeding when defendants' attorney sought clarification, the following colloquy ensued:
MR. COX [DEFENDANTS' ATTORNEY]: So [j]udge just so that I'm clear because I understand you'll be retiring shortly.
MR. COX: If the ladder stayed on there for as far as it did, then it must have been secured in order to withstand the 65-mile an hour wind for that day.
THE COURT: Right.
MR. COX: So there had to be something that unexpectedly went wrong.
THE COURT: Right. The wind was blowing or whatever.
MR. COX: Which is an issue of fact.
THE COURT: Yeah I know that, but the point is that the -- it's almost a res ipsa maybe. I don't know.
MR. DRATCH [PLAINTIFFS' ATTORNEY]: I would rather just go [to] the jury on damages. Why do I need to be bothered with liability? You already ruled on liability.
THE COURT: No. I can say --
MR. DRATCH: I'd rather say how much money do you want to give my client?
THE COURT: You have to go to the jury concerning his negligence.
MR. DRATCH: If you already ruled that they're 100 percent liable then --
THE COURT: I didn't rule that he was 100 percent.
MR. COX: But [j]udge . . . [h]ow can you say . . . that my client was negligent and a proximate cause of the accident when this accident could have been avoided by the conduct of Mr. Walsh had he gone to the left so that the ladder sitting there had nothing to do [with the accident]. The Plaintiff didn't hit the ladder.
Generally, "questions of proximate and intervening cause are left to the jury for its factual determination." Rappaport v. Nichols, 31 N.J. 188, 203 (1959). In this case, based on the deposition testimony provided by Walsh and Samuel Melia, a reasonable jury could conclude the accident occurred because Walsh was tailgating the car ahead of him, and he did not have sufficient time to safely avoid the ladder on the Parkway.
Accordingly, the summary judgment order in favor of plaintiffs is reversed, and the matter is remanded to the trial court for further proceedings.
To summarize, on plaintiffs' appeal and defendant's cross- appeal, we reverse and remand for such further proceedings as may be required to dispose of this case.