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Alcantara v. Polhamus

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 3, 2008

VICTOR ALCANTARA, PLAINTIFF-APPELLANT,
v.
DENISE POLHAMUS, WILLIAM SOTO, JR., FIRST TRENTON INDEMNITY COMPANY, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-0875-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 19, 2008

Before Judges S.L. Reisner and Baxter.

Plaintiff Victor Alcantara appeals from two trial court orders dated June 22, 2007, granting summary judgment to defendants First Indemnity Company and William Soto, Jr. and an August 3, 2007 order denying plaintiff's motion for reconsideration. We affirm.

I.

This case involves a multi-car accident that occurred on an entrance ramp to Route 440 during icy winter weather. According to the police report of the accident involved in this case, a disabled car and a downed utility pole were blocking the entrance to Route 440. According to her deposition testimony, defendant Denise Polhamus*fn1 came up the entrance ramp, which was quite icy. She discovered a line of cars stopped ahead of her due to the downed utility pole, and slammed on her brakes to avoid hitting the car in front of her. She succeeded in stopping, but defendant Soto came up the ramp behind Polhamus and was unable to stop in time; his car rear-ended the Polhamus vehicle and skidded off the road. Immediately after the Soto vehicle hit Polhamus and skidded out of the way, Alcantara's vehicle came up the ramp and also rear-ended the Polhamus car.

Although his car had rear-ended the Polhamus vehicle and had made no contact with the Soto vehicle, Alcantara sued Polhamus and Soto. He also brought an action against his own insurer, First Trenton, seeking uninsured motorist coverage (UM) relating to the uninsured Polhamus vehicle as well as an alleged "phantom vehicle" that he claimed hit the utility pole and caused it to fall across the roadway.

However, while both Polhamus and Soto referred in their depositions to an "accident" involving a car and a utility pole, there is no evidence in the record concerning any alleged negligence by the car that hit the utility pole. There is also no legally competent evidence that plaintiff's counsel ever attempted to locate a police report concerning the accident involving the utility pole. None of the parties deposed the police officer who investigated the Alcantara-Polhamus-Soto accident to determine whether he had any information about the earlier accident.

In an oral opinion placed on the record on June 22, 2007, Judge Pullen granted summary judgment in favor of First Trenton and Soto. She concluded that there was no basis to find negligence on the part of Polhamus, whose car plaintiff rear-ended. Nor did she find a basis for plaintiff to maintain a claim against Soto, whose car hit Polhamus and skidded off the road but whose car did not hit plaintiff's vehicle. Plaintiff moved for reconsideration with respect to the claim against Soto and with respect to the alleged phantom driver. However, in his reconsideration motion, plaintiff conceded "that the proofs show defendant Polhamus-Tully is not negligent."

In an oral opinion issued on August 3, 2007, the judge reaffirmed her earlier determination, finding that plaintiff had provided no basis on which to reconsider that decision. In a supplemental oral opinion of August 7, 2007, she also rejected plaintiff's claim against First Trenton based on an alleged phantom driver. She concluded that any claim against an alleged phantom driver would be untimely, and that there was no proof that such a driver was uninsured, despite plaintiff's having had time to investigate that issue. In her August 7 opinion, the judge also noted that "plaintiff already agrees that [Polhamus] is not negligent."*fn2

II.

On this appeal, plaintiff presents the following points for our consideration:

POINT I: SINCE PLAINTIFF SECURED AN ARBITRATION AWARD FROM AN INDEPENDENT COURT ARBITRATOR AGAINST THE UNINSURED DEFENDANT, POLHAMUS, IT IS OBVIOUS THAT THE COURT RULINGS GRANTING AND CONFIRMING SUMMARY JUDGMENT TO PLAINTIFF'S INSURER, FIRST TRENTON INDEMNITY COMPANY, ON AT LEAST THIS UM CLAIM MUST BE REVERSED.

POINT II: FACT ISSUES EXIST AS TO THE POTENTIAL LIABILITY OF DEFENDANT, SOTO, AND ALSO THE UNIDENTIFIED DRIVER IN THE FIRST ACCIDENT WHICH SET ALL EVENTS IN MOTION, SO THAT IT IS CLEAR THAT THE COURT WAS IN ERROR IN GRANTING AND CONFIRMING SUMMARY JUDGMENTS TO SOTO AND TO FIRST TRENTON INDEMNITY COMPANY AS TO THE UM CLAIM FOR THE UNIDENTIFIED "PHANTOM" DRIVER, MANDATING REVERSAL.

We have considered the record de novo, as we are required to do on an appeal from a trial court's grant of summary judgment. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Based on that review, we conclude that plaintiff's point I is moot, because the arbitration award against Polhamus was vacated and, in any event, arguments concerning Polhamus' liability may not be asserted on this appeal in light of plaintiff's concession in the trial court that she was not negligent.

Plaintiff's arguments concerning Soto and the alleged phantom driver are without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(1)(E), beyond the following comments. There is no evidence that Soto breached a duty he owed to plaintiff or that his actions proximately caused plaintiff to rear-end the Polhamus vehicle. There is also no evidence that the driver of the car that hit the utility pole was either negligent or uninsured. Summary judgment was properly granted.

Affirmed.


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