March 26, 2010
THOMAS J. SCATTERGOOD, PLAINTIFF-APPELLANT,
NEW JERSEY SKYLANDS INSURANCE COMPANIES, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 24, 2010
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 uninsured vehicle.... [Livsey v. Mercury Ins. Group, 197 N.J. 522, 531 (2009).]
See N.J.S.A. 17:28-1.1(a)(2) (requiring UM coverage for an injury "caused by accident and arising out of the ownership, maintenance, operation or use of such uninsured or hit and run motor vehicle"). In addition, there must have been an act of negligence involving the vehicle, rather than an intentional act, such as throwing the bracket out of a truck. Livsey, supra, 197 N.J. at 535-36.
As the motion judge correctly found, Scattergood has satisfied the first element of the Livsey test for the purposes of a motion for summary judgment. The issue before us is whether, on the basis of the evidence in the record when viewed in the light most favorable to him, Scattergood has made a prima facie showing that "the accident arose from the ownership, maintenance, operation or use" of a phantom vehicle. Were there evidence that someone saw the bracket fall from an unidentified vehicle, such as a construction truck, we would conclude that Scattergood had met his burden in that regard. However, there is no direct evidence connecting the bracket to such a vehicle.
Scattergood argues that his proffered theory of the accident is more likely than not correct. He points to the fact that no houses in the neighborhood of the accident utilize such brackets, arguing that the accident bracket must have come from somewhere outside of the neighborhood. He posits that the most likely explanation for the appearance of the new bracket in the roadway is that it fell from a construction vehicle on its way to or from a construction site.
In support of the latter assertion, he relies on the certification of his construction expert, as follows:
Trucks used in the roofing business are generally open in the rear, and I have observed a number of trucks used by roofing companies that have the rear tailgate removed. This is done more than likely to allow longer parts to be loaded and unloaded without needing to open the tailgate repeatedly.
If this [bracket] was found in the street in a residential neighborhood, the most likely explanation is that it fell off the back of a truck used by a roofing company.
We note, however, that the opinion was not stated to be within a reasonable degree of certainty in the expert's field. It is, in any event, a net opinion, based largely on conjecture. State v. Townsend, 186 N.J. 473, 494 (2006) ("Simply put, the net opinion rule 'requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion.'" (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002))).
The issue as we discern it is whether there are sufficient facts in the record to permit a rational jury to conclude that it is more likely than not that the bracket at issue came to be in the roadway because it fell from a vehicle, such as a construction truck. If a jury could reach that conclusion, then summary judgment was inappropriate because Scattergood would have made out a prima facie case that "the accident arose from the ownership, maintenance, operation or use of an uninsured vehicle." Livsey, supra, 197 N.J. at 531.
Scattergood relies on several out-of-state cases, the facts of which are distinguishable from those in this case.*fn2 In Farmers Insurance Company of Washington V. Frederickson, 914 P.2d 138 (Wash. Ct. App. 1996), the court allowed a claim to proceed in which the claimant hit firewood in the road and lost control of his car. Although the case was decided on the basis of procedural issues not relevant here, the court noted that a witness, who did not see the accident, certified that "the road is used by loggers and persons cutting firewood." Id. at 139. In Woosley v. State Farm Insurance Co., 18 P.3d 317, 318 (Nev. 2001), the plaintiff hit a ladder in the roadway. There was testimony that a ladder had been seen falling from a truck shortly before the accident. Id. at 319. In Hale v. American Family Mutual Insurance Co., 927 S.W.2d 522, 526 (Mo. Ct. App. 1996), the injury was caused by a rock and there was substantive evidence that it had been propelled by truck tires:
The record here reflects that there was sufficient evidence to show that more likely than not this accident would not have occurred without someone's negligence. It would not be reasonable to believe that the rock was thrown by an individual given its size, lack of overhead structures, visibility in the area and lack of individuals observed at the scene. Furthermore, the evidence of the black substance on the rock, the trajectory of the rock, the direction from which the rock was propelled, the size of the rock, the damage to Hale's vehicle, and the nature of the oncoming traffic all support plaintiff's theory that the rock was generated by southbound traffic by being propelled from the wheels of a dual-wheeled vehicle as a result of some unknown act of negligence of another driver. The specific act of negligence of the unknown driver could have been failing to keep a careful lookout, following another vehicle too closely, speeding, failing to check the tires of vehicle for foreign objects, or some other specific act which was the cause of the rock being propelled into plaintiff's vehicle.
In this case, for the purposes of summary judgment, it has been established that the bracket was in the roadway when Scattergood's bicycle hit it, that none of the adjacent houses used that type of bracket, and that there were at least two houses within less than a mile that did. There was no evidence that someone saw the bracket fall from a truck, that other construction debris was found in the road, or that there was a building site in the area to and from which construction vehicles had been driving on a regular basis prior to the accident.
Without the sort of additional evidence found in Farmers Insurance, Woosley, and Hale, we must conclude that there is insufficient evidence for a rational jury to conclude that the negligence of a vehicle owner or operator was more likely than not the cause of Scattergood's accident. To send such a case to a jury would merely invite speculation. See LaMorgese v. Kern- O-Mix, Inc., 82 N.J. Super. 581, 586 (App. Div. 1964). Consequently, we affirm the dismissal of the complaint.