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Marchevsky v. New Jersey Manufacturers Insurance Co.

September 4, 2008

ADAM MARCHEVSKY,*FN1 PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 ...


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