September 4, 2008
ADAM MARCHEVSKY,*FN1 PLAINTIFF-APPELLANT,
NEW JERSEY MANUFACTURERS INSURANCE COMPANY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1619-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 5, 2008
Before Judges Sapp-Peterson and Baxter.
Plaintiff, Adam Marchevsky, appeals from the Law Division order dismissing, without prejudice, his order to show cause (OTSC) and verified complaint in which he sought to compel defendant, New Jersey Manufacturers (NJM), to participate in uninsured motorist (UM) arbitration. We affirm.
According to plaintiff's verified complaint, on November 6, 1999, he sustained injuries while "a passenger on a vehicle operated by Lucas Castellucci, and owned by defendant John Doe[.]" Plaintiff filed a complaint against Castellucci on July 31, 2006. The complaint was served upon Castellucci by leaving a copy with his father at 2412 S. Garnet Street, Philadelphia, where plaintiff believed Castellucci also resided. Castellucci did not answer the complaint, and default was entered against him on January 12, 2007. On February 16, 2007, plaintiff's counsel notified defendant of plaintiff's potential UM claim. Prior to plaintiff requesting that NJM participate in UM arbitration, plaintiff gave notice to NJM of a scheduled proof hearing against Castellucci. Plaintiff obtained a judgment against Castellucci as a result of that proof hearing. Thereafter, defendant advised plaintiff that it would not participate in arbitration because notice of a UM claim was not timely given.
On September 27, 2007, plaintiff filed an OTSC and verified complaint seeking an order compelling defendant to participate in UM arbitration. Defendant answered the complaint and filed a brief in opposition to the OTSC. Defendant raised two points as a basis for denying the relief plaintiff sought. First, defendant argued plaintiff failed to establish that the vehicle involved in the alleged accident was uninsured. Second, defendant argued plaintiff failed to file a timely claim for UM benefits as required under the insurance policy, resulting in prejudice to defendant.
In a reply to defendant's brief, plaintiff argued that although he was unable to obtain the make and model of the vehicle that struck him, he was able to obtain the identification and last known address of the driver. Citing Norman v. Selective Ins. Co., 249 N.J. Super. 111 (App. Div. 1998), plaintiff contended the court should treat the underlying facts no differently than a "hit and run" situation where a party seeking UM benefits need only demonstrate a reasonable effort to discover the identity of the fleeing driver. Id. at 112. Additionally, plaintiff claimed that he was unaware of a potential UM claim until Castellucci failed to answer the complaint filed against him in the negligence action. Further, plaintiff maintained that defendant suffered no prejudice by the more than seven-year delay in seeking UM coverage because it is "in no worse position" than he was at the time he filed his complaint. Finally, plaintiff noted that his medical records were available and defendant could still perform its "IME and investigate the medical condition of the plaintiff."
After hearing oral argument, the trial judge dismissed the complaint and OTSC, finding that plaintiff failed to prove that the vehicle involved was uninsured and failed to comply with the policy requirements of prompt notification of a claim. The dismissal was granted without prejudice to plaintiff to re-file a demand for arbitration in the event plaintiff was able to come forward with further information to support his claim for UM coverage.
Plaintiff moved for reconsideration or, "in the alternative to amend the form of order to conform to the ruling of th[e] court." Plaintiff argued that in its December 6 ruling, the court did not rule on the issue of prejudice to defendant stemming from the delay in filing a claim for UM coverage. Plaintiff also argued that he was entitled to reconsideration on the court's determination that plaintiff breached the terms and conditions of the policy by not giving prompt notice to defendant of the UM claim. Citing Kenny v. NJM, 328 N.J. Super. 403 (App. Div. 2000) and Schekek v. State Farm Auto Insurance Co., 316 N.J. Super. 326 (App. Div. 1998), plaintiff maintained that the absence of timely notice of a UM claim is not a bar to coverage unless the insurer demonstrates prejudice from the failure to give prompt notice, a showing plaintiff claims defendant failed to establish and the court failed to address.
The court denied reconsideration, agreeing with the position advanced by defendant that plaintiff breached the notice provision of the insurance policy, that the court had in fact made an initial finding of prejudice to defendant but the complaint and OTSC were dismissed without prejudice to afford plaintiff the opportunity to attempt to secure further information, and plaintiff's reconsideration motion contained no new information warranting relief. The present appeal followed.
On appeal plaintiff contends the court's determination that his actions in pursuing his UM claim "were not reasonable constitutes plain error as well as judicial error" and the court improperly shifted the burden of establishing prejudice to the plaintiff. We disagree.
Appellate review of a judgment entered in a non-jury case is a "limited function." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). The appellate court will "not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. We owe no such deference to a trial judge's legal conclusions. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).
A claim for UM benefits is governed both by statute and by the terms and conditions of the insurance policy. N.J.S.A. 17:28-1.1(a) limits the recovery of UM benefits to damages because of bodily injury . . . sustained by the insured caused by accident and arising out of the ownership, maintenance or use of [an] uninsured or hit and run motor vehicle. The key statutory elements establishing entitlement to recovery are damages (1) causally related to an accident and (2) arising out of the ownership, maintenance or use of an uninsured vehicle. Ibid. Of significance to our discussion is the second factor, proof that the accident involved an uninsured vehicle.
Here, there is no dispute that plaintiff is unable to present proof that the vehicle operated by Castellucci was uninsured. We reject plaintiff's argument that providing Castellucci's identity and last known address and Castellucci's failure to answer the complaint factually turns this case into a hit and run matter for purposes of recovering UM benefits. Moreover, given the particular facts of this case, the provision of Castellucci's identity and last known address falls woefully short of establishing a reasonable effort on the part of plaintiff to determine whether the vehicle involved was uninsured under Norman, supra, 249 N.J. Super. at 112.
Although the verified complaint claimed that plaintiff was injured while a passenger on a vehicle operated by Castellucci, the brief plaintiff submitted on appeal presents the following version of events leading up to the filing of plaintiff's UM claim as follows:
The plaintiff was injured in this accident but due to the circumstances concerning how he was injured and the nature of his injuries no police report was filed by the plaintiff's guardian/parents.  It was first believed that the plaintiff was injured when he struck a mailbox while riding his bicycle.  The plaintiff was found by his older brother Michael Marchevesky.  No vehicles were present at or near the area of the plaintiff's accident at the time that the plaintiff's brother found the plaintiff lying on the ground.  However, plaintiff's brother prior to finding his brother at or near the mailbox had previously observed his brother holding onto the vehicle being operated by Lucas Castellucci.  Thereafter, he observed his brother lying near the mailbox unconscious and the Ca[s]tellucci vehicle was nowhere to be found. 
Plaintiff's parents/guardians did not realize they could pursue a potential claim for personal injury and damages until February 2005 when they discovered that the plaintiff's brother Michael believed that his brother was injured by way of an automobile accident and not by striking the [mailbox]  It was subsequently learned how the plaintiff was hurt, by hanging onto the Castellucci vehicle versus just striking the mailbox through his own bike riding. This was told to the plaintiff's parents by the plaintiff's brother. They then sought legal advice regarding the potential for a claim.
The plaintiff at the time of the accident was approximately 12-years-old, when he was riding his bicycle near the Castellucci vehicle. Plaintiff hung onto the car as it was moving and being driven out of the driveway. Plaintiff while still on his bicycle and still holding onto the vehicle apparently let go of the vehicle and struck the mailbox sustaining serious injuries.
The above statement repeatedly referenced the verified complaint as the source of the factual allegations. There is, however, nothing in the verified complaint or the record before the trial court to support any of the alleged facts set forth in plaintiff's counsel's brief. Further, plaintiff's brother did not submit an affidavit explaining the "circumstances concerning how [plaintiff] was injured[.]" Nor is there any explanation of what is meant in plaintiff's brief by the statement, "due to the circumstances concerning how [plaintiff] was injured and the nature of his injuries no police report was filed by the plaintiff's guardian/parents." Moreover, as defense counsel pointed out during oral argument on the motion, plaintiff was not a small child at the time of the alleged accident. He was twelve or thirteen years old. Yet, plaintiff failed to submit an affidavit relaying what happened and how those events accounted for the delay in identifying the Castellucci vehicle or filing a claim for UM benefits. Still further, as defense counsel argued before the court, there were other reasonable steps plaintiff could have employed to ascertain the existence of any vehicle registered to Castellucci or perhaps other persons living in Castellucci's household at the time of the accident, which the record does not reflect plaintiff employed. Most notably, plaintiff could have performed a "DMV search" or taken statements from witnesses without the necessity for subpoenas. Defense counsel also addressed the prejudice to defendant in determining whether there were eyewitnesses. Additionally, defense counsel argued issues of causation in connection with the nature and extent of plaintiff's alleged injuries. The trial court did not specifically point to these omissions when it found that plaintiff failed to establish proof that an uninsured vehicle was involved in the accident. Nonetheless, implicit in this finding is the court's concurrence with these points raised by defendant. The court therefore properly concluded that plaintiff failed to establish proof that the Castellucci vehicle was uninsured.
Turning to the auto insurance policy issued to plaintiff's father that included plaintiff as an additional insured, Part G - DUTIES AFTER A LOSS OR ACCIDENT provides:
We have no duty to provide coverage under this policy unless there has been full compliance with the following duties.
A. We must be notified promptly of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses.
B. A person seeking any coverage must:
1. Cooperate with us in the investigation, settlement or defense of any claim or suit.
2. Promptly send us copies of any notices or legal papers received in connection with the accident or loss.
3. Submit, as often as we reasonably require:
a. To physical exams by physicians we select. We will pay for these exams.
b. To examination under oath and subscribe the same.
4. Authorize us to obtain:
a. Medical reports; and
b. Other pertinent records.
5. Submit a proof of loss when required by us.
C. A person seeking Uninsured Motorists Coverage must also:
1. Promptly notify the police if a hit-and-run driver is involved.
2. Promptly send us copies of the legal papers if a suit is brought.
"The terms of an automobile insurance policy govern the insured's rights to UM coverage so long as the terms do not conflict with the UM statute or its underlying policy." Rider Ins. Co. v. First Trenton Cos., 354 N.J. Super. 491, 495 (App. Div. 2002). While it is undisputed that N.J.S.A. 17:28-1.1c "must be construed liberally to foster the protection UM affords automobile accident victims," Rider Ins., supra, 354 N.J. Super. at 497-98, "in the absence of a statutory prohibition to the contrary, an insurance company has a right to impose whatever conditions it desires prior to assuming its obligations." Royal Ins. Co. v. Rutgers Cas. Ins. Co., 271 N.J. Super. 409, 419 (App. Div. 1994). It is not our function "'to make a better contract for the parties than they themselves have seen fit to enter into or to alter it for the benefit of one party and to the detriment of the other.'" Id. at 416 (quoting Flynn v. Hartford Fire Ins. Co., 146 N.J. Super. 484, 488 (App. Div.), certif. denied, 75 N.J. 5 (1977)).
Here, the insurance policy required prompt notice of a claim in order to afford it the opportunity to properly investigate and resolve a claim. Plaintiff inexplicably failed to give notice of his claim until more than seven years after the alleged accident. In the absence of competent evidence before the court that notice to the insurer could not have reasonably been provided any earlier than 2007, the court properly concluded that plaintiff's failure to provide prompt notification was another basis upon which to deny relief to plaintiff.
Finally, contrary to plaintiff's argument, the court did find that defendant was prejudiced by the delay. In its oral decision, the court specifically pointed to the arguments advanced by defense counsel during oral argument as a basis for its conclusion that defendant was prejudiced by the delay. Those findings are reasonably supported by the record and should be accorded our deference. Manalapan, supra, 140 N.J. at 378.