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Southard v. New Jersey Manufacturers Insurance Co.

July 22, 2009

BEVERLY SOUTHARD AND CHARLES SOUTHARD, PLAINTIFFS-APPELLANTS,
v.
NEW JERSEY MANUFACTURERS INSURANCE COMPANY, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-0539-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 13, 2009

Before Judges Fuentes, Gilroy and Chambers.

Plaintiff*fn1 Beverly Southard appeals from the order of the Law Division dismissing her lawsuit against defendant New Jersey Manufacturers Insurance Company, (NJM) seeking uninsured motorist (UM) coverage. The trial court granted NJM's summary judgment motion finding that plaintiff failed to provide the carrier, in a timely manner, with the information necessary to verify the legitimacy of the claim. We affirm.

Because the trial court decided this case as a matter of law in favor of NJM, we will recite all salient facts in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).

On April 13, 2001, plaintiff, her husband and son were passengers on a New York Transit bus in Manhattan. Plaintiff claims the bus pulled over to the curb to drop off passengers and pick up new passengers. As it pulled away from the curb into the lane of traffic on 48th Street, the bus collided with an unidentified vehicle. According to plaintiff, she did not see this vehicle before the collision, and only saw the car very briefly immediately after the accident.

The "phantom" vehicle was damaged on the passenger side, rear quarter panel. There was no police report of the accident, and no New York Transit incident report documenting the event. At her deposition, plaintiff confirmed that she was never questioned about the accident by anyone associated with the New York Transit Authority or the New York City Police Department. In fact, no one called the police at the time of the accident. According to plaintiff, neither the bus driver nor the driver of the unidentified vehicle ever got out of their respective vehicles or spoke to each other.

Although she did not sustain any visible injuries, plaintiff felt stiff shortly after the accident. As she and her family walked through Central Park, her symptoms increased in severity, causing her to cut her trip short.

At the time of the accident, plaintiff had a personal automobile insurance policy with NJM. On August 21, 2001, four days after the accident, plaintiff gave NJM notice of the accident by telephone. On September 12, 2001, plaintiff, through her attorney, filed a formal application for Personal Injury Protection (PIP) benefits.

By letter dated January 28, 2002, NJM advised plaintiff that her maximum PIP medical benefit coverage had been exhausted by a previous medical provider. On February 25, 2002, plaintiff requested additional information on the question of exhaustion.

Sixteen months after the accident, plaintiff advised NJM that she was seeking UM benefits. In a letter dated July 23, 2002, plaintiff's counsel gave a brief description of the accident and, for the first time, indicated that the "unknown vehicle" that cut off the bus had "New York Tag #FY66073." With respect to this information, plaintiff's counsel wrote: "We have completed a search on the aforementioned tag which came back unknown. We have written to the New York Transit Bus company for a report as to the incident, however, to date we have not received a response."

NJM responded in August 2002, requesting that plaintiff provide all pertinent information, including, but not limited to, police accident reports and incident reports from the New York Transit Bus Company. In response, plaintiff's counsel sent NJM a settlement brochure dated September 2002, containing an undated inquiry to the New York State Department of Motor Vehicles for insurance information on a "gold/tan Infinity with license plate FY66073." The Department of Motor Vehicles responded that it had no record of the license plate on file. According to plaintiff, this license plate number was given to her by a passenger on the bus. Plaintiff also provided a handwritten piece of paper with the plate number and the bus number, and dates for certain medical tests she had after the accident.

On October 23, 2002, NJM sent plaintiff a letter declining UM coverage. The letter noted that under Part G of plaintiff's policy, NJM had no duty to provide UM coverage unless there has ...


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