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Clarendon National Insurance Company v. Theodore Camera

December 29, 2010

CLARENDON NATIONAL INSURANCE COMPANY, PLAINTIFF-RESPONDENT,
v.
THEODORE CAMERA, JEANETTE CAMERA, MCCLISTER AND DIMICK ASSOCIATES D/B/A CURTIS LANES, GENERAL QUARTER 2, INC., AND LAZAROS MAGCOS A/K/A LARRY MAGCOS, DEFENDANTS, AND BUCKS-MERCER COUNTY MANAGEMENT, INC., D/B/A CURTIS LANES, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-167-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 14, 2010

Before Judges Parrillo and Skillman.

Defendant Bucks-Mercer County Management, which operates a bowling alley and bar called Curtis Lanes, appeals from a summary judgment for $62,874.06 in favor of plaintiff Clarendon National Insurance Company reimbursing plaintiff for personal injury protection (PIP) benefits it paid to Theodore Camera and the denial of its motion for reconsideration of that summary judgment. We affirm.

On February 1, 2006, Camera was operating a car owned by his wife and insured by plaintiff. During the early evening hours, Camera consumed a very substantial amount of alcoholic beverages at defendant's bar. Shortly after leaving the bar, Camera drove the car into a telephone pole at a high rate of speed and suffered serious personal injuries that required extensive medical treatment. Camera submitted a claim for PIP benefits to plaintiff, which eventually paid him $62,874.06.

Plaintiff subsequently brought this action against defendant and others*fn1 seeking reimbursement for those benefits under N.J.S.A. 39:6A-9.1, which allows an insurer to seek reimbursement of PIP benefits against certain tortfeasors such as a bar that negligently serves alcoholic beverages to its insured. See State Farm Mut. Auto. Ins. Co. v. Licensed Beverage Ins. Exchange, 146 N.J. 1, 3, 13-15 (1996). Shortly before trial, plaintiff moved for summary judgment in its favor. This motion was supported by Camera's deposition and an expert report by John Brick, which are discussed later in this opinion. After hearing argument, the trial court issued a written opinion, dated July 2, 2009, granting the motion.

On appeal, defendant argues that the trial court should have denied plaintiff's motion for summary judgment because the return date was within thirty days of the date set for trial, in violation of Rule 4:46-1. However, a trial court may hear a motion for summary judgment beyond this deadline "for good cause shown." Although the trial court made no express finding of such good cause, defendant has not alleged it was prejudiced by the court's failure strictly to enforce the Rule 4:46-1 deadline for hearing motions for summary judgment. Moreover, it would be contrary to principles of sound judicial administration to reverse a properly granted motion for summary judgment solely because it was returnable beyond the date provided by the court rules and to remand for the conduct of an unnecessary trial. See R. 1:1-2(a).

Defendant also argues that the trial court erred in granting summary judgment because there were contested material issues of fact that required submission of the case to a jury.

Rule 4:46-2(c) states that summary judgment must be granted when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." In Brill v. Guardian Life Insurance Company of America, 142 N.J. 520, 523 (1995), the Court explained that:

[W]hen deciding a motion for summary judgment under Rule 4:46-2, the determination whether there exists a genuine issue with respect to a material fact challenged requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

Under this standard, if "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." Id. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

In support of its motion for summary judgment, plaintiff presented Camera's deposition. In that deposition, Camera testified that he had "about five Absolut[s] on the rocks" before driving to defendant's establishment. During the two-hour period he was in defendant's establishment, he had another twelve to fifteen Absoluts on the rocks. The same bartender, named Bob, served him all these drinks. Camera testified that he had a conversation with this bartender in which he indicated that he was driving.

After leaving defendant's establishment, Camera drove about three-and-a-half miles before crashing into a telephone pole. After his apprehension by the police, Camera submitted to two breathalyzer tests, which ...


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