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Paul Giambanco v. Theodore Sherrer

December 22, 2010

PAUL GIAMBANCO, PLAINTIFF-APPELLANT,
v.
THEODORE SHERRER, JR., CHRISTINE M. HUJBER, DEFENDANTS, AND CLARENDON NATIONAL INSURANCE COMPANY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1032-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 20, 2010 - Decided Before Judges R. B. Coleman and Lihotz.

This case requires us to review whether a material misrepresentation made by a claimant seeking benefits during an insurance examination will forever bar coverage of future claims submitted under any subsequent policy issued by the same insurer. Plaintiff Paul Giambanco appeals from the December 4, 2009 summary judgment dismissal of his declaratory judgment action seeking underinsured/uninsured motorists (UIM/UM) and personal injury protection (PIP) benefits to compensate him for personal injuries suffered in an April 27, 2004 motor vehicle accident (the 2004 accident). Plaintiff was a front-seat passenger in a vehicle operated by Christine Hujber and insured by defendant Clarendon National Insurance Company.

Fifteen months earlier, on January 26, 2003, plaintiff had also suffered injuries in an accident while a passenger in Hujber's automobile (the 2003 accident). At that time, plaintiff completed a PIP application, an affidavit of no insurance, and an examination under oath giving inaccurate information about his identity. Specifically, plaintiff used his brother's name, date of birth and social security number, rather than his own, claiming he was in "a self-imposed witness protection program" and feared for his safety if his whereabouts were discovered. Plaintiff's deception was uncovered prior to final adjudication of his claims regarding the 2003 accident, although no question had been raised challenging the materiality of his injuries or the reasonableness and necessity of medical treatments rendered following the 2003 accident.

In the litigation initiated by plaintiff following the 2004 accident, defendant moved for summary judgment. In its review, the court relied upon the insurance policy's "Concealment or Fraud" provision, determining plaintiff's prior misstatements about his identity following the 2003 accident precluded recovery for injuries incurred in the 2004 accident, even though plaintiff had been completely forthright following the 2004 accident.

On appeal, plaintiff argues the clause relied upon by the court is ambiguous as to time, requiring an interpretation that favors plaintiff. We agree and conclude the clause is limited by the period of the policy, which has not been provided in the record. Accordingly, we reverse and remand.

These are the undisputed facts taken from the summary judgment record regarding the 2004 accident. While Hujber's vehicle was stopped at a traffic light on Route 29, where it intersects with South Warren Street in Trenton, Theodore Sherrer's vehicle struck Hujber's automobile in the rear. Plaintiff, a front-seat passenger in Hujber's car, sustained injuries, including disc bulges at L4-5 and C5-6, as well as tears in his right knee medial meniscus, right anterior cruciate ligament and shoulder.

In the course of discovery undertaken in plaintiff's negligence action following the 2004 accident, it was learned Sherrer had no automobile liability insurance when his vehicle struck Hujber's vehicle. Defendant moved to intervene. Plaintiff put defendant on notice of his claim for UIM/UM benefits and amended his complaint to directly name defendant in the action and requested a determination that defendant was obligated to pay his PIP and UIM/UM benefit claims. The court added defendant as a direct party. Defendant commenced discovery and participated in non-binding arbitration.

Prior to its direct involvement in the 2004 accident litigation, defendant had uncovered plaintiff's false statements during the 2003 accident insurance investigation. Defendant became aware of plaintiff's misstatements when its investigator, who had spoken to plaintiff following the 2003 accident, was also assigned to conduct plaintiff's examination under oath in the insurance investigation of the 2004 accident. Defendant's investigator recognized plaintiff from the previous encounter and plaintiff admitted he filed the 2003 claim for PIP benefits using his brother's name, "Salvatore Giambanco," along with Salvatore's social security number and date of birth.

In the litigation resulting from the 2003 accident, defendant moved to disclaim its obligation to provide PIP benefits to plaintiff because he had manufactured his identity. The court granted defendant's request for summary judgment on July 26, 2006 and relieved defendant "of any duty to provide insurance coverage" to plaintiff under the policy. Further, plaintiff was ordered to repay $4,174.13 in PIP benefits defendant had previously paid.

At some point, in the 2004 accident litigation, defendant, armed with the July 26, 2006 order from the 2003 accident litigation, asserted it had no liability for plaintiff's PIP and UIM/UM claims. The parties filed cross-motions for summary judgment. During oral argument before the Law Division, plaintiff explained he had been completely truthful in the inquiry surrounding the 2004 accident and refuted defendant's contention that the policy's language precluded his current recovery. Defendant argued that although the July 26, 2006 order had been entered with respect to the 2003 accident litigation, it should equally apply to plaintiff's demands for coverage regarding the 2004 accident. Alternatively, defendant suggested the policy's "Concealment or Fraud" provision barred plaintiff's 2004 accident claims.

The trial court did not impose the terms of the prior order to bar plaintiff's recovery in the current litigation but agreed with defendant's argument to impose the policy's fraud clause, which stated: "There is no coverage under this Policy if you or any other person insured under this Policy has made false statements with the intent to conceal or misrepresent any material fact or circumstance in connection with any claim under this Policy." The Law Division judge found the clause was not only unambiguous, but sufficient to deny coverage. The court concluded the "any claim" language used was designed to protect the insurance company and deter insurance fraud. Accordingly, defendant's "right to declare the policy void as to plaintiff" was upheld. Plaintiff appealed.

A motion for summary judgment should be granted only when the moving party establishes the absence of any genuine issue as to a material fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995). In our review of a grant or denial of summary judgment, we apply the same standard as the trial court. Moore v. Woman to Woman Obstetrics & Gynecology, L.L.C., 416 N.J. Super. 30, 40 (App. Div. 2010). We first decide whether there was a genuine issue of fact. ...


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