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Guaciaro v. Gonzales

April 15, 2010

FRANCINE GUACIARO AND FRANCIS GUACIARO, PLAINTIFFS-APPELLANTS,
v.
CIPRINO GONZALES, PAULA PEREZ, NATIONAL AUTO SALES, INC., DEFENDANTS, AND STATE FARM INSURANCE CO., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Cumberland County, No. L-781-05.

The opinion of the court was delivered by: Wefing, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted December 15, 2009

Before Judges Wefing, Grall and Messano.

Plaintiff Francine Guarciaro filed suit seeking to recover damages for injuries she alleged she sustained in a motor vehicle accident on August 29, 2003, in Vineland.*fn1 In her complaint, she alleged that she had just finished parking her vehicle when it was struck in the rear by a vehicle that did not stop. Plaintiff called the police, and two officers were dispatched in response to this report of a hit-and-run accident. Officer Thomas Riordan of the Vineland police responded to the scene. In the report he subsequently prepared, Officer Riordan said that plaintiff told him that she had just finished parking her car and had stepped out of it when a white minivan struck hers. While speaking to her, Officer Riordan learned that another officer had located the white minivan several blocks away and he went to check; he told plaintiff he would return.

The driver of that car, defendant Ciprino Gonzales, said he was too drunk to remember if he had been involved in an accident; Officer Riordan did not have Gonzales perform any field sobriety tests because he was unable to stand on his own. He issued a number of summonses to Gonzales, including driving while intoxicated, N.J.S.A. 39:4-50, driving an unregistered vehicle, N.J.S.A. 39:3-4, driving an uninsured vehicle, N.J.S.A. 39:6B-2, driving without a license, N.J.S.A. 39:3-10, leaving the scene of an accident, N.J.S.A. 39:4-129(b), and reckless driving, N.J.S.A. 39:4-96.

It later developed that defendant Paula Perez had purchased the vehicle from defendant National Auto Sales, Inc. and had lent it to Gonzales but that title had not been transferred to her name. Neither Gonzales nor Perez responded to plaintiff's complaint, and National Auto Sales was granted summary judgment. Plaintiff presented a claim for uninsured motorists' (UM) coverage to her insurer, State Farm Indemnity Company.

Officer Riordan gave a statement under oath to State Farm's attorney. He repeated in that statement that plaintiff told him she was standing on the sidewalk at the time of the accident. He said that when he returned to the scene after dealing with Gonzalez, some twenty to twenty-five minutes later, plaintiff again told him that she was standing on the sidewalk when her car was hit. He said she made no complaint of being injured and displayed no signs of any injury. He also said that plaintiff came to the police station several weeks later and asked him to change his report because it was incorrect in that she was in the vehicle at the time of the accident. Riordan said that he told her he did not believe her because she had been so insistent at the time that she was standing on the sidewalk but would check with his supervisor on whether he should amend his report to note that she had made this request. After consulting with his supervisor, he declined to make an amendment to his report.

Officer Riordan also said in his sworn statement that plaintiff returned to the police station a second time and again asked that an amended report be issued, to reflect that she was in the car at the time. He again declined to do so, telling her that he believed that she was not being truthful and that he was going to notify her insurance carrier.

Plaintiff's UM endorsement to her State Farm policy contained the following provision:

Two questions must be decided by agreement between the insured and us:

1. Is the insured legally entitled to collect damages from the owner or driver of the uninsured motor vehicle or ...


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