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Thomas Paglia, Jr., and Diane Paglia v. State Farm Indemnity Company

July 27, 2011

THOMAS PAGLIA, JR., AND DIANE PAGLIA, PLAINTIFFS-APPELLANTS,
v.
STATE FARM INDEMNITY COMPANY, DEFENDANT-RESPONDENT, AND MELISSA MANVELL, DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2666-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 11, 2011

Before Judges Fuentes, Ashrafi and Newman.

Plaintiff Thomas Paglia, Jr. was injured in an accident while riding his motorcycle. He claimed he was forced to drive his motorcycle off the road to avoid colliding with a car driven by Melissa Manvell that was traveling in the opposite direction. Both vehicles were attempting to negotiate an "S" curve when the accident occurred.

In addition to suing Manvell, plaintiff*fn1 also filed an uninsured motorist (UM) claim against his own insurance carrier, State Farm Indemnity, alleging the accident was also caused by another unknown vehicle that failed to stop. The trial court granted State Farm's motion for summary judgment because plaintiff did not present sufficient evidence to establish the existence of the "phantom vehicle." Plaintiff settled his claims against Manvell for $100,000, the limit of her insurance coverage. Plaintiff now appeals from the order of the trial court dismissing his UM claim against State Farm. We affirm.

I

In the early evening hours of June 11, 2008, plaintiff was riding his Harley Davidson motorcycle from his home in Forked River to his father's home in Toms River, traveling on Lakeside Drive. Plaintiff described Lakeside Drive as a "very windy" one-lane road in each direction, with a speed limit of twenty-five miles per hour. Lakeside Drive has an "S turn" which, according to plaintiff, is difficult for most drivers to navigate. According to plaintiff, drivers traveling in the opposite direction than he was traveling on that evening "have a tendency to chop the corner and cross the lines," while drivers in the direction he was traveling tend to "go over the shoulder."

Plaintiff gave the following description of how the accident occurred:

I made the first S turn to the left and I'm going to make the right, which is quickly after the left, and the car had come over to my side of the road to make their left.

When I saw the car, I had to make a choice.

If I would turn hard to the right, I would have laid the bike down and probably been run over by the car. So, I continued in a straight line, accelerated to miss the car, which I managed, but that is the last thing I remember.

The first time plaintiff saw the vehicle that allegedly crossed over into his lane was when he was starting to make the second portion of the S turn. At that time, he estimated the front of his motorcycle was "less than 100 feet" from the vehicle. The vehicle "was a good halfway on my side of the road" at this time. Plaintiff decided to "go to the left and try to avoid the vehicle." By doing so, he drove his motorcycle across the road into the oncoming lane of traffic.

Of particular relevance here, plaintiff indicated that he did not "remember any other vehicles. Just myself and the approaching car." He does recall, however, "accelerating to miss the car." He later ...


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