On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket Nos. L-972-06 and L-412-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Alvarez.
Plaintiff Thamon Wright (Thamon) filed an action against defendants Aaron Wright (Aaron) and Lisa Wright (Lisa) to recover damages for personal injuries suffered as a result of a June 26, 2004 incident in which his legs became caught beneath a truck driven by Aaron and owned by Lisa.*fn1 In a separate count of the complaint, Thamon also sought to compel defendant New Jersey Manufacturers Insurance Company (NJM) to pay personal injury protection (PIP) benefits on account of medical expenses he incurred from his injuries. NJM filed a separate proceeding seeking a declaratory judgment relieving it of the obligation to pay underinsured motorist (UIM) benefits to Thamon. The two cases were consolidated, and NJM obtained summary judgment on April 3, 2009. Thamon's motion for reconsideration of the grant of summary judgment was denied on May 15, 2009. After review of the record and relevant law, we now reverse.
The following facts, relied upon by the motion judge, are taken from the police reports, answers to interrogatories, and depositions. Thamon, Aaron, Tamika Joyce (Tamika) and Joseph Joyce (Joseph) were drinking during the early morning hours prior to the incident in question.*fn2 In fact, Thamon, who was not part of a group with the others, claimed that while at a particular bar, he socialized with them and purchased a round of drinks for Aaron and Tamika. He recalled that Joseph was unconscious from drinking by the time he encountered the group in the bar. After that, they again went their separate ways.
At approximately 5:30 a.m., Aaron drove Tamika to pick up her car at her home. Thamon's vehicle was parked in the driveway, although it partially extended out into the street, effectively blocking the front of Aaron's truck. After the incident, Aaron told the investigating officer that when Tamika saw Thamon, she told Aaron to keep going, but that he stopped anyway because he did not think anything was wrong. Aaron pulled in front of the house and hugged Tamika. She got out of his truck. At this point, the accounts begin to diverge.
When the investigating officer asked Tamika whether she had witnessed an altercation between Thamon and Aaron, she stated only that she saw Aaron and Thamon speaking. She then observed Aaron's vehicle pull forward and strike Thamon's vehicle.
Aaron told the investigating officer that he heard Thamon asking him to lower his driver's side window after he hugged Tamika. Aaron did so, at which point Thamon reached into the truck cab and began to punch and strike him, while trying simultaneously to open the truck door and pull Aaron out of the vehicle. Although Aaron's answers to interrogatories contained the same basic scenario, he added that when he put the truck into drive and attempted to leave, Thamon "yanked" the wheel to the left, causing Aaron's truck to strike Thamon's truck. Aaron backed up with the door swinging open and Thamon hanging on, and saw that Thamon's legs "got caught" under the driver's side door. Aaron immediately drove to the police station, where he filed a complaint for assault against Thamon and reported the accident. Photographs were taken of the injuries to Aaron's face.
Thamon claims that although he does not recall striking Aaron, if he did so, it was because Aaron crashed into his vehicle as he hung onto the door. In other words, if he inflicted any blows upon Aaron it was unintentional, the incidental by-product of Aaron driving away while he was hanging onto his truck door.
Aaron acknowledges that he saw that Thamon was injured as he backed up before he drove to the police station. When police arrived at Tamika's house, Thamon, who smelled of alcohol, initially refused medical treatment. Eventually he was driven to the hospital by someone at the scene. Thamon categorically denies having threatened Aaron, somewhat more equivocally denies having struck Aaron, but unequivocally asserts that any force used against Aaron was not intentional.
Thamon submitted Tamika's certification in support of his application for reconsideration. In it she reiterates that she did not see Thamon strike or punch Aaron. Aaron and Thamon filed cross-complaints in municipal court charging simple assault. "Not guilty" entries appear in the record as to both complaints, but it is unknown if the matters were tried or dismissed by agreement.
Thamon's automobile insurance policy states as follows ...