February 5, 2009
LOUIS SERRANO, PLAINTIFF-APPELLANT,
STATE FARM INSURANCE COMPANY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5007-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2009
Before Judges C.L. Miniman and Baxter.
In this declaratory judgment action, plaintiff, Louis Serrano, appeals from an August 22, 2007 order granting summary judgment to defendant State Farm Insurance Company (State Farm). We reverse.
On January 5, 2003, plaintiff sustained injuries while a passenger in a 1996 Mitsubishi owned and operated by Daniel Aponte. Aponte's vehicle was insured by Progressive Insurance Company, which settled plaintiff's claim for its policy limit of $25,000. Because Aponte, who lived with his parents, Israel and Jane Aponte, was a named insured on the automobile policy issued to his parents by State Farm, plaintiff also made a claim against State Farm for his injuries.*fn1 State Farm declined coverage, causing plaintiff to file a declaratory judgment action against State Farm in October 2006.
Plaintiff served a request for production of documents, pursuant to Rule 4:18-1, demanding that State Farm provide him with a "true, legible copy" of the declarations page of any policy of insurance issued to Aponte's parents. By letter dated March 6, 2007, defendant satisfied plaintiff's document request. The cover letter from the law firm representing State Farm stated, in relevant part, "Enclosed please find a copy of the insurance policy in effect for Israel Aponte on the day of the accident. . . . The policy is form #9630S1." Furthermore, an internal document generated by State Farm after it received plaintiff's claim specified the same policy form number, 9630S1.
At the time State Farm filed its summary judgment motion, it supported that motion with a certified statement of material facts, as required by Rule 4:46-2. The certification was submitted and signed by counsel for State Farm. He certified that the "policy form is 963051.*fn2 See Exhibit 'A.' Policy form 963051 is annexed hereto. See Exhibit 'B.'" The cover page of the policy, which was Exhibit "A," contained the words "Your State Farm Standard Car Policy," and specified "New Jersey Policy Form 9630S1" in the lower left hand corner. The forty-one pages of the policy that followed as Exhibit "B" inexplicably bore not the number 9630S1, but instead the number 6300S at the bottom of each of those forty-one pages. State Farm provided no explanation about that obvious discrepancy.
In opposition to State Farm's motion for summary judgment, plaintiff asserted that "the policy attached as Exhibit 'B,' on its face, is policy form 6300, not form 9630S1." He also argued there was "[n]o certification from a State Farm representative . . . certifying . . . that this is the form of the policy in dispute, or explaining the variances between the policy produced and the form referenced on the policy face sheet."
In his oral decision, the motion judge rejected plaintiff's contentions regarding the discrepancy in the policy form numbers. The judge stated:
Plaintiff's attorney's March 20, 2007 letter to defendant State Farm's attorney demanded "a true, legible copy of the declarations page of any and all policies [of] insurance to Israel and Jane Aponte . . . .
This court finds that the documents which [were] forwarded to plaintiff's attorney by defendant's attorney by letter dated March 6, 2007 and attached, which documents were attached to the instant motion as Exhibit A and B satisfy the document demand. Plaintiff did not ask for "certified" documents. More importantly, plaintiff has not proffered any basis for believing or suspecting that the forwarded documents are inaccurate, incomplete, or fraudulent.
On appeal, we apply the same standard as the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Thus, we must determine whether there are any genuine issues of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. R. 4:46-2; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). This requires a review of the competent evidential materials in the light most favorable to the non-moving party to determine whether a rational fact-finder could resolve the issue in favor of the non-moving party. Ibid.
On appeal, plaintiff argues that summary judgment should not have been granted because the certification by defense counsel was not competent evidence under Rule 1:6-6. That Rule provides that certifications submitted in support of a motion for summary judgment must be "made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify . . . ." R. 1:6-6; see also Murray v. Allstate Ins. Co., 209 N.J. Super. 163, 169 (App. Div. 1986) (holding that an "attorney's certification is not competent evidence" and does not satisfy the requirements of Rule 1:6-6). Plaintiff also argues that the policy State Farm attached in support of its motion does, in fact, afford him coverage.
State Farm addresses the dispute about the policy form numbers by arguing that plaintiff's attorney only "demanded true, legible copies" of the policy in his letter of March 20, 2007, and "never requested certified copies and never raised this issue until his opposition to . . . [d]efendant's summary judgment motion . . . ." We conclude that State Farm's attempt to avoid addressing the discrepancy in the policy form numbers by hiding behind plaintiff's failure to explicitly request a "certified" copy is unacceptable. A party responding to a Rule 4:18-1 document request is obliged to send a true copy, whether the requesting party demands a "certified" copy or not.
We agree with plaintiff's argument that the unexplained discrepancy in the policy form numbers raised a genuine issue about whether the insurance policy State Farm presented to the motion judge was in fact a true copy of the policy of insurance issued to Daniel Aponte's parents. Unquestionably, defense counsel had no personal knowledge of whether the cover page of the insurance policy he attached--which bore the words "Policy form number 9630S1" despite all subsequent pages bearing the number 6300S--was in fact the policy issued to the Aponte's.
Because defense counsel had no personal knowledge, Rule 1:6-6 prohibited him from attesting to the authenticity of that policy of insurance. Thus, his certification did nothing to resolve the authenticity objection that plaintiff raised. Only an employee of State Farm who had personal knowledge of the issue in question should have issued a certification.
There was thus a genuine issue of material fact on the question of whether Exhibit "B" was the policy governing the accident at issue. For that reason, the motion judge committed reversible error when he accepted as true defense counsel's certification. Accordingly, summary judgment should have been denied.
Our determination that a genuine issue exists concerning the authenticity of the policy makes a review of the coverage issue presented on appeal premature. However, upon remand, in the event State Farm establishes that Exhibit "B" is indeed the applicable policy, then the judge's conclusion regarding lack of coverage is correct. Section I of the policy specifies that liability coverage extends to the use by an insured of, in relevant part, "a non-owned car." However, it appears that Daniel Aponte's vehicle fails to qualify as a "non-owned car."
A "non-owned car" is defined in this policy's definitions section as a car "not owned . . . by any relative unless at the time of the accident or loss: a. the car currently is or has within the last 30 days been insured for liability coverage; and the driver is an insured who does not own . . . the car" in question. Here, Daniel Aponte does not appear to satisfy the policy's coverage provisions because, although his car had been insured with liability coverage, he was a driver who owned the car that was involved in the accident. Therefore, because Daniel Aponte's vehicle is not a "non-owned" car under this policy, State Farm and the motion judge are correct that Daniel Aponte did not satisfy all of the requirements applicable to qualify for "non-owned car" liability coverage. Again, we emphasize that our conclusion concerning lack of coverage under the theory articulated by plaintiff applies only if Exhibit "B" is the policy that was issued to the Aponte's.
Plaintiff argues that even if Aponte's vehicle did not come within the State Farm definition of a "non-owned" car and therefore was not eligible for liability coverage under that section, Aponte was entitled to coverage under a different section of the policy entitled "If There Is Other Liability Coverage." This latter section provides that "if other vehicle liability coverage applies, we are liable only for our share of the damages" and also provides that "if a . . . non-owned car . . . has other vehicle liability coverage on it[,] then this coverage is excess over such insurance or self-insurance." Although we do not have the declaration sheet, we presume that the first provision does not apply here because Aponte's vehicle is not a covered car. Additionally, the second provision of this section of the policy applies only to "non-owned cars" and Aponte's car fails to qualify as a "non-owned car." Therefore, the motion judge correctly concluded that Daniel was afforded no coverage under this section of the policy.
Reversed and remanded. We do not retain jurisdiction.