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Avelluto v. Liberty Mutual Insurance Co.

March 13, 2009

ROSAMARIA AVELLUTO, PLAINTIFF-RESPONDENT,
v.
LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANT-APPELLANT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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