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Williams v. Geico Insurance Co.

January 27, 2010

THOMAS W. WILLIAMS, PLAINTIFF-APPELLANT,
v.
GEICO INSURANCE COMPANY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. DC-3354-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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