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Andres Espinoza v. Darnell R. Thompson

January 10, 2012

ANDRES ESPINOZA, PLAINTIFF-APPELLANT,
v.
DARNELL R. THOMPSON, DARNELL M. THOMPSON, AMERICAN TRANSPORTS INSURANCE CORPORATION AND SHORT TERM AUTO RENTAL INCORPORATED, DEFENDANTS, AND GRM ENTERPIRSES, INC., U-SAVE AUTO RENTAL A/K/A ALMOST NEW RENTALS, AND LINCOLN GENERAL INSURANCE COMPANY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2142-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 20, 2011 -

Before Judges Messano, Yannotti and Espinosa.

Plaintiff Andres Espinoza appeals from the Law Division's order of September 16, 2010, granting summary judgment to GRM Enterprises, Inc., U-Save Auto Rental a/k/a Almost New Rentals (collectively GRM), and Lincoln General Insurance Company (LGI) (collectively, defendants). We have considered the arguments made in light of the record and applicable legal standards. We affirm.

I.

On June 12, 2007, plaintiff was injured when the bicycle he was riding struck the passenger door of a vehicle operated by defendant, Darnell R. Thompson, and owned by GRM. Thompson had rented the car from GRM.

Darnell M. Thompson was a passenger in the car at the time, although it is unclear from the record whether he opened the door that struck plaintiff. Plaintiff filed a negligence complaint against Darnell R. Thompson and GRM.

Discovery revealed that when he rented the vehicle, Thompson purchased a supplemental liability insurance (SLI) policy. The vehicle was also covered by a mandatory minimum liability policy issued to GRM by LGI. Plaintiff's unsuccessful attempts to obtain discovery, including information from GRM regarding the SLI policy and any premium payments GRM may have made to the policy's issuer, led to an order striking GRM's answer and defenses.

On June 26, 2009, plaintiff filed an amended complaint naming both Darnell M. and Darnell R. Thompson, GRM, LGI, American Transports Insurance Corporation (ATIC), and Short Term Auto Rental Incorporated (Short Term) as defendants. In addition to the negligence count, plaintiff alleged: 1) he was a third-party beneficiary of the SLI policy purchased by Thompson; 2) GRM violated the Consumer Fraud Act, N.J.S.A. 56:8-1 to -184 (the CFA), by "falsely represent[ing] that . . . plaintiff . . . would be indemnified for losses and damages arising from the use and operation of the rental vehicle" by Thompson; 3) common law fraud against GRM; and 4) all defendants violated the Racketeer Influenced and Corrupt Organizations statute, N.J.S.A. 2C:41-1 to -6.2 (RICO). On September 3, defendants answered the amended complaint. No answer was filed on behalf of either Thompson, ATIC or Short Term.

On February 5, 2010, defendants were granted leave to deposit $15,000, the policy limits under the LGI policy, with the court. On March 19, their motion to restore their answer and defenses was granted over plaintiff's objection. On July 26, defendants moved for summary judgment, on their own behalf, and on behalf of Darnell M. Thompson, claiming the amended complaint was filed beyond the statute of limitations.

The motion judge entertained oral argument on September 16. Noting discovery had ended, the judge concluded that plaintiff "ha[d] to present something more" regarding defendants' potential liability. He observed that GRM had produced a policy procured from ATIC, and, despite plaintiff's assertion that the policy was "a sham," the judge concluded plaintiff failed to "present facts" permitting an inference that the policy "[wa]s not a real policy." He granted defendants summary judgment.*fn1

Plaintiff moved to enter defaults against the Thompsons and ATIC. On October 12, the court entered final default judgment in favor of plaintiff against the Thompsons and ATIC in ...


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