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Johnson v. Allstate Insurance Co.

June 9, 2010

HARVEY JOHNSON,*FN1 PLAINTIFF-APPELLANT,
v.
ALLSTATE INSURANCE COMPANY, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4250-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically February 19, 2010

Before Judges Payne and Miniman.

Plaintiff, Harvey Johnson, appeals from an order of summary judgment entered against him in his action for uninsured motorist (UM) benefits and in favor of his carrier, defendant Allstate Insurance Company, and from an order denying reconsideration.*fn2 We affirm.

I.

On January 14, 2000, Johnson was rear-ended by a truck driven by Richard Domingues and owned by RPZ Trucking. Following the accident, Domingues left his truck and surveyed the damage, but then returned to his truck and fled the scene. He was apprehended two miles down the road. The police report of the accident contains a statement by witness Thomas M. Power, who stated that the truck was traveling in the road's center lane when "it appeared [Johnson] drifted in front of [Domingues]." The truck driven by Domingues then hit Johnson's car, pushing it a considerable distance down the road. A witness statement by Edward W. Foley, Jr. corroborates the fact that Johnson drifted in front of Domingues's truck, but placed the collision in the far left lane. However, the report also contains a statement by Johnson that:

He was northbound on Rt. 9 in far right lane to the right of and slightly ahead of [Domingues]. He states that a vehicle ahead of him changed lanes in front of [Domingues]. [Domingues] slowed and struck him sending him sideways and then pushed him down the road.

At the conclusion of his investigation, the responding officer stated:

Investigation revealed: Extensive damage on [Johnson's] vehicle indicates speeds near posted 50 mph limit. Dual wheel tire marks indicate that the event began and ended in the center lane. [Johnson] appears to have drifted over into the truck (V2) from the right lane. Initial contact was the left rear of [Johnson's vehicle]. . . .

At the time of the accident, Johnson was insured by a policy of automobile liability insurance issued by Allstate Insurance Company that offered personal injury protection (PIP) and UM benefits. Following the accident, Johnson made a PIP claim, attaching the police report to that claim. However, he did not seek UM benefits at the time.

On June 7, 2000, Johnson and his wife filed suit against Domingues and RPZ Trucking, alleging negligence on the part of Domingues. A Rule 4:5-1(b)(2) certification, signed by Johnson's counsel, concluded the complaint. It stated:

Pursuant to R. 4:5-1, it is hereby stated that the matter in controversy is not the subject of any other action pending in any other Court or of a pending arbitration proceeding to the best of my knowledge, information and belief. Further, other than the parties set forth in this pleading, I know of no other parties that should be joined in the above action.

In addition, I recognize the continuing obligation of each party to file and serve on all parties and the Court an Amended Certification if there is a change in the facts stated in this original Certification.

In answers to interrogatories served in the motor vehicle action, Johnson described the ...


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