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Avelluto v. Liberty Mutual Insurance Co.


March 13, 2009


On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2238-06.

Per curiam.


Telephonically argued November 12, 2008

Before Judges Lisa and Sapp-Peterson.

Defendant Liberty Mutual Insurance Company (Liberty) appeals from the trial court decision, following a bench trial, declaring that plaintiff Rosemarie Avelluto is entitled to personal injury protection (PIP) benefits, N.J.S.A. 39:6A-4, arising out of a motor vehicle accident that occurred on December 10, 2005. We affirm.

The sole issue at trial was whether Avelluto was occupying her vehicle, which was disabled on the roadway, at the time it was struck from the rear. Four witnesses testified at the trial: plaintiff; her brother, John Avelutto; Officer Robert Sherwood; and plaintiff's family physician, Dr. Frank Iula, who testified via videotaped de bene esse deposition.

According to plaintiff's testimony, her vehicle became disabled when it got stuck on a patch of ice located in the middle of the intersection of Park Boulevard and Grove Street in Cherry Hill. She did not have a cell phone, so she walked to a nearby Walgreens to call home for help. She then returned to her vehicle and sat inside while awaiting assistance. Other motorists travelling on the roadway drove around her disabled auto, but a vehicle operated by Norma Simpson (Simpson) slammed into the rear of the vehicle. After the impact, plaintiff exited the vehicle and a passing motorist stopped at the accident scene. Plaintiff used that motorist's cell phone to call home to determine whether her brother and father were on their way to assist her.

Plaintiff's brother, during direct examination, testified that he heard Officer Sherwood questioning his sister about whether she was in the vehicle at the time of the accident and heard her tell the officer that she was seated in the vehicle at the time of the impact. During cross-examination, however, he was confronted with a statement he provided to a claims investigator in which he indicated that there were no questions about whether his sister was in the car at the time of the impact and that, instead, he told the investigator the officer repeatedly asked his sister "'whether or not the engine was on.'"

Officer Sherwood testified that he arrived at the accident scene and commenced his investigation. He observed plaintiff outside of the vehicle and did not see plaintiff's brother. He later prepared a report describing the accident in the following manner:

V#1 [plaintiff's vehicle] was parked after being stuck in the snow and ice on Park Blvd. Rose Maria G. Avelluto, NJDL A9533 66967 62742, daughter of the owner of V#1[,] was next to V#1 calling for assistance. V#2 [Simpson's vehicle] was traveling west on Park Blvd. D#2 stated she saw V#1 stop and tried to stop V#2. V#2 then slid on the ice covered road and the front of V#2 struck the rear of V#1. #29- Ice covered road.

During his testimony, he expounded upon his report:

Q: Now, the information regarding Ms. Avelluto being next to the vehicle calling for assistance, where did that information come from?

A: My interview with her.

Q: So, you actually spoke to Ms. Avelluto, and that's what she told you?

A: That's correct.

Q: Now, does that mean, for purposes of this police report, she was not in the vehicle at the time of the impact?

A: The way it was explained to me, as far as that, and I went through a lengthy interview with her to actually get her exact location, is that she was outside of the vehicle and she would be on what would be the north side of the vehicle when the accident occurred.

Officer Sherwood went on to explain the significance of boxes 17-27 and the letters A-E contained in the lower left-hand corner of his report. He testified that the "2" in box 17A indicated that he had dedicated that horizontal line of the report to information concerning vehicle number two, the Simpson vehicle. The "1" in box 18 denoted that Simpson had been sitting in the driver's seat of vehicle number two. He indicated that the absence of a similar horizontal line dedicated to information concerning vehicle number one, the Avelluto vehicle, meant that his investigation concluded that there was no occupant of vehicle number one at the time of the accident.

Officer Sherwood told the judge that he reached the conclusion that plaintiff was not occupying the vehicle at the time of the impact partially because "[w]hen I interviewed [plaintiff], I didn't feel she was being truthful with me about her exact location in regards to where she was with the vehicle" and he "had to work to actually get the information from her, to elicit it." In response to questioning by the court, Officer Sherwood described his conversation with plaintiff at the scene as follows:

Then, I said, well, if you - - it's a very cold day, so I said, well, if you were not in the passenger seat, were you sitting in the driver seat, and at that point, she indicated no, I was outside of the vehicle.

I asked her, well, if you're outside of the vehicle, can you explain where you were standing . . . . And I said, well, were you standing next to the truck or were you away from the truck at the time of the accident, and she indicated she was away from the truck.

Liberty proffered Dr. Iula to refute plaintiff's testimony that she immediately treated with him following the accident. Dr. Iula testified that he treated plaintiff one month before the accident in connection with a thyroid matter and then two years after the accident. He confirmed that he did not treat plaintiff for any accident-related injuries and acknowledged that his awareness that she was being treated in connection with accident-related injuries stemmed from the courtesy copy of progress updates sent to him by another physician who treated plaintiff following her accident.

In entering judgment in favor of plaintiff at the conclusion of the trial, the judge stated: "I watched her. She's tough to get a responsive answer out of. She's all over the place. But the one thing she didn't equivocate about was that she was in the vehicle. That's not a real difficult set of facts for her." Later, in his supplemental findings, the judge elaborated on his observations of plaintiff's testimony and her demeanor on the witness stand:

I found the plaintiff's testimony overall to be credible. As I said on the record, although she was all over the place with respect to her medical treatment, emphatically she indicated that she was in the motor vehicle. . . .

. . . It makes absolute sense in light of the surrounding circumstances. . . .

. . . It would be unreasonable under the weather conditions presented as testified to by not only herself, her brother, but also the police officer to expect that she would stand outside a motor vehicle in those weather conditions without any type of shelter.

On appeal, Liberty contends that the court failed to consider "substantial amounts of relevant evidence which resulted in a verdict unsupported by the factual record." Additionally, Liberty argues the court erred when it failed to consider its counterclaim seeking relief against plaintiff pursuant to the New Jersey Insurance Fraud Prevention Act, N.J.S.A. 17:33A-1 to -30, and pursuant to the "Fraud Clause" of its policy.

In a non-jury case, appellate review of a trial judge's factual findings is limited to a determination of whether those findings are supported by adequate, substantial, and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The reviewing court should not disturb the judgment unless the trial judge's findings are "'so wholly insupportable as to result in a denial of justice . . . .'" Id. at 483-84 (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div. 1960), aff'd o.b., 33 N.J. 78 (1960)). In other words, the court will defer to the trial court's factual findings and legal conclusions unless "'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[.]'" Id. at 484 (quoting Fagliarone v. Tp. of No. Bergen, 78 N.J. Super. 154-55 (App. Div. 1963)). Moreover, it is not our function as a reviewing court to substitute our judgment for that of the trial court simply because the facts as presented may have led us to a different conclusion:

The aim of the review at the outset is rather to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record. This involves consideration of the proofs as a whole; the appraisal is not to be confined simply to those offered by the plaintiff, for the question is not simply whether there was enough evidence to withstand a defense motion at the end of the plaintiff's case or of the entire case.

When the reviewing court is satisfied that the findings and result meet this criterion, its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal. That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect. [State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)).]

The central issue before the court was whether plaintiff was inside the vehicle at the time of the impact. The court made clear that it found the testimony of plaintiff credible. In doing so, Liberty urges that the court discounted all of the other evidence which it asserts was more compelling and believable. In its brief, Liberty argues that the evidence the court relied upon to reach its decision was "so meager, considering the quantum of evidence submitted, that it renders the findings insufficient as a matter of law and results in a denial of justice."

It is well-settled that in weighing the evidence and making credibility determinations, the court's focus must be upon the quality of the evidence not the quantity of the evidence presented. See Morlino v. Medical Center of Ocean Cty, 295 N.J. Super. 113, 130 (App. Div. 1996), aff'd as modified (finding that instruction emphasizing to jury that it was to consider the quality, not the quantity, of the evidence presented was "sufficient so as to instill an understanding in the jury that it could accept the testimony of one witness as conclusive if it believed such testimony"). That is precisely what occurred here. The court evaluated the evidence and found the testimony of plaintiff more credible and reliable. She was the only testifying witness who actually witnessed the accident. Although free to do so, neither party called Simpson. Moreover, the parties stipulated to the admissibility of the documents referenced during the trial. Thus, the trial court was free to consider the statement attributed to Simpson that she saw plaintiff's vehicle "stop" rather than "stopped," lending greater credibility to plaintiff's version that she was seated inside of her vehicle at the time of the impact.

Given the deferential standard by which we review the factual findings of a trial judge in a non-jury case, we do not conclude the court's finding that plaintiff was occupying her vehicle at the time that it was rear-ended to have been so wide of the mark and so totally inconsistent with the competent, relevant, and reasonably credible evidence presented to warrant our intervention to correct an injustice. Rova Farms, supra, 65 N.J. at 484 (1974).

Defendant's remaining argument that the court failed to consider its counterclaim, which the court should have addressed even if it concluded that plaintiff occupied the vehicle at the time of impact, is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A)(E). We note, however, that the court, in dismissing the counterclaim, found that it "did not find that the plaintiff had engaged in any fraud but had been truthful when she made the statement that she was in her motor vehicle at the time of the accident." In our view, it is reasonable to infer from this statement that the court did not find any willful misrepresentation on the part of plaintiff at any time that she made a statement, whether sworn or unsworn, concerning the circumstances surrounding the accident.



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