January 27, 2010
THOMAS W. WILLIAMS, PLAINTIFF-APPELLANT,
GEICO INSURANCE COMPANY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. DC-3354-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 11, 2010
Before Judges Reisner and Yannotti.
Plaintiff Thomas W. Williams appeals from an order entered by the Law Division on April 9, 2009, as amended by an order filed on May 5, 2009, granting summary judgment in favor of defendant GEICO Insurance Company. For the reasons that follow, we affirm.
This appeal arises from the following facts. On June 5, 2008, plaintiff was driving his 2001 Porsche Boxster automobile, which was insured by defendant. On that date, plaintiff allegedly struck an animal crossing Route 202 in Mahwah, New Jersey. According to plaintiff, the vehicle was damaged in the collision. Plaintiff had the vehicle towed to a service station in Mahwah, which installed a new radiator, headlight and lens. The cost of the towing and repairs was $1,674.92.
On July 15, 2008, plaintiff sent a letter to defendant informing it of the June 5, 2008 accident. Plaintiff noted that he had the vehicle repaired but stated that "[a]fter the car was repaired, it didn't run right (excessive smoke from the exhaust/radiator so [he] brought the vehicle back for servicing."
Plaintiff additionally stated that he was told "that when the water drained from the radiator, it damaged the engine, which [he was] now having repaired at an estimated cost of $8,400 (new rings, head gasket, etc.)." Plaintiff said that, "the front of the vehicle [also] was damaged as a result of the collision."
On July 17, 2008, plaintiff filed an action in the Law Division against defendant alleging that it had wrongfully refused to pay for the property damage to his car. Plaintiff sought damages in the amount of $15,000.
On July 29, 2008, defendant advised plaintiff that an auto damage adjuster had been assigned to inspect the vehicle. The adjuster, Stephen M. Leissing (Leissing), arranged to conduct the inspection on August 1, 2008. On that date, Leissing inspected the car at a repair shop, where a second round of repairs was being performed.
In a certification submitted to the trial court, Leissing said that when he arrived at the repair shop, the vehicle "was on the lift, with the drivetrain out, and block components in the midst of the reassembly process[.]" Leissing stated that the repairs "were nearly complete" and included "the remanufacture of the engine[.]" Leissing additionally stated that he was not "able to inspect, investigate or confirm the details of the" first round of repairs without disassembly of the "bumper fascia" because the fascia covered all components in question and "no replaced parts had been saved."
Leissing also stated that he could not inspect or verify the damages or causation of the collision as the old or damaged parts had been discarded and the repair shop claimed use of "LKQ parts" for rebuilding and repair of the vehicle. Leissing added that:
[t]he significance of the use of the LKQ parts in this regard is that while they were utilized as a cost containment mechanism, their discoloration from their previous use made it impossible to identify them as replaced parts other than by identification by the [repair shop] as the allegedly damaged and subsequently replaced components.
On December 8, 2008, the trial court dismissed plaintiff's complaint without prejudice. The court found that plaintiff filed the complaint prematurely because defendant had not acted on his claim. On February 2, 2009, after defendant informed plaintiff that his claim had been denied, he commenced this action seeking payment for the damage to his vehicle.
On March 12, 2009, defendant filed a motion for summary judgment, arguing that plaintiff was not entitled to coverage under the policy because he failed to provide timely notice to the insurer of the loss and because plaintiff did not "protect the auto" and exhibit the damaged property for inspection. Judge Liliana S. DeAvila-Silebi considered the motion on April 9, 2009, and entered an order on that date, dismissing the complaint with prejudice.
Plaintiff filed a notice of appeal on May 4, 2009. On May 20, 2009, the judge filed a letter opinion pursuant to Rule 2:5- 1(b) amplifying her reasons for granting summary judgment in favor of defendant. Judge DeAvila-Silebi also filed an amended order on May 5, 2009, to correct an error in the April 9, 2009 order.
In his appeal, plaintiff raises the following arguments for our consideration: 1) the trial court erred by granting summary judgment because discovery was incomplete; 2) there were genuine issues of material fact that precluded the grant of summary judgment; and 3) the trial court erred by ruling that plaintiff failed to comply with the insurance policy because the parts of the vehicle which were repaired had not been preserved for defendant's inspection.
We are convinced from our review of the record that plaintiff's arguments are entirely without merit. We accordingly affirm the order granting summary judgment to defendant substantially for the reasons stated by Judge DeAvila-Silebi in her letter opinion dated May 20, 2009. We add the following brief comments.
When reviewing the grant of summary judgment, we apply the same standards that are applied by the trial court in ruling on a motion seeking that relief. Prudential Property & Case Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Stoffels v. Harmony Hill Farm, 389 N.J. Super. 207, 209 (App. Div. 2006). Therefore, we must determine whether there are any genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
The policy of insurance covering plaintiff's vehicle states in pertinent part:
As soon as possible after a loss, written notice must be given [to] us or our authorized agent stating:
a. the identity of the insured;
b. a description of the auto or trailer;
c. the time, place and details of the loss; and
d. the names and addresses of any witnesses.
The insurance policy also states that, "[i]n the event of loss the insured" must "[p]rotect the auto, whether or not the loss is covered by [the] policy." In addition, the policy states that the insured may not bring a lawsuit against the insurer "unless the policy terms have been complied with[.]"
Here, there is no genuine issue as to the following material facts. Plaintiff alleged that on June 5, 2008, the covered automobile struck an animal and was damaged in the collision. He did not report the accident to the police.
Moreover, plaintiff failed to notify defendant of the loss until July 15, 2008, which was after the first round of repairs had been performed on the car. Furthermore, by the time the adjuster had an opportunity to inspect the car on August 1, 2008, the second round of repairs had been completed, the car was being reassembled and the damaged parts were not available for inspection.
As Judge DeAvila-Silebi correctly found, plaintiff failed to: (1) provide defendant with notice of the loss "as soon as possible" after the accident; (2) preserve the damaged vehicle for inspection by defendant's adjuster before two rounds of repairs were performed; and (3) preserve the damaged parts removed from the vehicle for inspection. The judge correctly determined that, in light of those facts, the insurance policy barred plaintiff from pursuing a claim against defendant for the property damage to his car.
We have considered all of plaintiff's arguments and find them to be of insufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(1)(E).
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