On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-208-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Waugh.
Plaintiff Thomas J. Scattergood appeals the dismissal on summary judgment of his claim for uninsured motorist (UM) coverage against defendant New Jersey Skylands Insurance Companies (Skylands), his automobile insurance carrier. We affirm.
We discern the following facts from the record. Scattergood was injured in a bicycle accident on April 12, 2006, in Burlington. He contends that the accident occurred when a copper bracket used to support gutters on high-end homes became caught in one of the bicycle wheels, causing him to be thrown from the bicycle onto the street. Following his release from the hospital several days later, he returned to the scene of the accident, where he located and retrieved the bracket. There is apparently no witness with personal knowledge of how the bracket came to be in the street.
Scattergood presented evidence (1) that the brackets are sold separately from the gutters, either individually or fifty in a box; (2) that the bracket found at the scene of the accident was new, although damaged during the accident; (3) that none of the houses in the immediate area of the accident used that type of bracket.*fn1 Consequently, his theory of the accident was that the bracket fell from a contractor's truck in transit to a work site at which such brackets were being used.
Scattergood made an unsuccessful claim for UM benefits from Skylands, based upon his belief that the bracket had fallen onto the street from an unidentified, or "phantom," vehicle. In April 2008, he filed the current action against Skylands, which filed an answer.
Following a period of discovery, Skylands moved for summary judgment. The motion judge granted the motion, holding that the evidence in the record could not support a conclusion that the accident arose "out of ownership, maintenance, operation or use of an uninsured or hit and run vehicle."
An appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Generally, the court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c). However, "when the evidence 'is so one-sided that one party must prevail as a matter of law,'... the trial court should not hesitate to grant summary judgment." Brill, supra, 142 N.J. at 540 (citation omitted). In reviewing a trial court's entry of summary judgment, we are bound by the same standard. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
In order to prevail on a claim such as the one before us:
[A]n insured who seeks UM benefits must satisfy a two-prong test: first, the insured must demonstrate that his or her injuries were caused by an "accident;" and, second, the insured must prove that the accident arose from the ownership, maintenance, operation or use of an ...