July 31, 2012
ANDERSON SERRANO, PLAINTIFF-APPELLANT,
IVAN I. NEZOYUR, NIKOLAY I. NEZOYUR, JOHN ROSADO, JR., JEANNE M. FRAZIER, WILLIAMS PAVING, H. WILLIAMS PAVING, STAVOLA MILLVILLE ASPHALT CO., LLC, WILLIAM'S ASPHALT MATERIALS, LLC, OHIO CASUALTY INSURANCE GROUP, LIBERTY MUTUAL INSURANCE GROUP AND PEERLESS INSURANCE, JOINTLY SEVERALLY AND/OR IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3970-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 29, 2012
Before Judges Waugh and St. John.
Plaintiff Anderson Serrano appeals from an October 4, 2010 order granting summary judgment in favor of defendants Ohio Casualty Insurance Group, Liberty Mutual Insurance Group, and Peerless Insurance. In light of the record and applicable law, and following our review of the arguments on appeal, we affirm.
The record discloses the following facts and procedural history leading to the grant of summary judgment under review.
On December 19, 2006, plaintiff was riding his bicycle at the intersection of North West Avenue and West Park Avenue in Vineland, when he was struck by a vehicle driven by Ivan Nezoyur, and owned by Nezoyur's father. As a result of the collision, plaintiff sustained severe injures.
Nezoyur admitted hitting plaintiff. He asserted that he failed to see plaintiff because the headlights and roof lights of a dump truck were shinning in his eyes and obstructed his vision. The truck was parked illegally in the wrong direction on North West Avenue.
On December 19, 2008, plaintiff filed a complaint against Nezoyur and his father, and Jane Williams Paving and H. Williams Paving (Williams Paving),*fn1 the company that owned the dump truck alleged to have temporarily blinded Nezoyur. On September 8, 2009, plaintiff successfully moved for an order to name defendants, the insurance providers for Williams Paving, as parties to the action.
Plaintiff's complaint alleged negligence on part of John Rosado, Jr., the driver of the parked dump truck, and vicarious liability on part of Williams Paving, as Rosado's employer. Plaintiff further asserted defendants improperly denied coverage to Williams Paving for his claim against it.
Defendants filed an answer on November 23, 2009, acknowledging defendant Ohio Casualty Insurance Group (OCIG) issued a Commercial General Liability policy (the policy) to Williams Paving for the period from July 5, 2006 through July 5, 2007. The policy obligated OCIG to "pay those sums that the insured becomes legally obligated to pay as damages because of the 'bodily injury' or 'property damages' to which this insurance applies." However, defendants noted that an exclusion in the policy stated, in relevant part:
The insurance does not apply to: . . . .
g. Aircraft, Auto or Watercraft "Bodily injury" or "property damage" arising out of the ownership, maintenance, use or entrustments to others of any aircraft, "auto" or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and "loading and unloading."
This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the "occurrence" which caused the "bodily injury" or "property damage" involved the ownership, maintenance, use or entrustment to others of any aircraft, "auto" or watercraft that is owned or operated by or rented or loaned to any insured. . . .
The policy also contained the following definition:
a. A land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment; or
b. Any other land vehicle that is subject to a compulsory or financial responsibility law or other motor vehicle insurance law in the state where it is licensed or principally garaged.
However, "auto" does not include "mobile equipment[.]"
Relying on this exclusion in the policy, defendants moved for summary judgment, arguing they were not obligated to provide coverage to Williams Paving or its agents for plaintiff's injuries because the accident arose from the use of the dump truck. Plaintiff opposed the motion, asserting there existed a triable issue of fact as to whether the lights placed on top of the dump truck were actually part of the truck itself or considered separate equipment not within the exclusionary provision of the policy.
On October 1, 2010, Judge Karen L. Suter heard arguments on the motion for summary judgment. In her oral opinion, she granted defendants' motion. An order dismissing plaintiff's complaint with prejudice was filed on October 4, 2010. The judge found:
The policy excludes bodily injury or property damage arising out of the use of the automobile owned or rented by the insured, here Williams Paving. It's unambiguous, arises out of, is under the case law  to be construed in its ordinary sense. Here[,] the truck was parked on the wrong side of the street. Its lights on the top of the truck blinded, allegedly blinded oncoming traffic and this is the allegation of how the accident occurred. In the court's view[,] the injury arises out of the use of this automobile. It's broadly defined in the case law to cover the truck and so the court finds that the exclusion is unambiguous, that the facts here fit that and that there's no factual dispute. There's no factual dispute.
On appeal, plaintiff argues the judge erred in concluding that the accident arose from the negligent operation of Williams Paving's dump truck, which precludes an award of summary judgment in defendants' favor. He further asserts the accident "arose out of the truck's location and the after-market 'effects' (lights) which were added to the truck which, in this case, blinded  Nezoyur and resulted in the accident occurring in the first place." Therefore, plaintiff argues, the basis of liability does not derive from the "use" or "operation" of the auto, and the policy exclusion should not apply.
We note first the standard governing our review of a trial judge's award of summary judgment. When reviewing such a grant, we employ the same standard as the trial judge. Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div.), certif. denied, 196 N.J. 85 (2008); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998) (citations omitted). It is established that our review of a trial judge's conclusions of law is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."). See also R. 4:46-2(c).
In addressing a motion for summary judgment, a court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). See also R. 4:46-2(c). We must view the evidence in the light most favorable to the non-moving party and analyze whether the moving party was entitled to judgment as a matter of law. Brill, supra, 142 N.J. at 523.
Insurance policies are construed in accordance with principles that govern the interpretation of contracts; the parties' agreement "will be enforced as written when its terms are clear in order that the expectations of the parties will be fulfilled." Flomerfelt v. Cardiello, 202 N.J. 432, 441 (2010) (citing Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43 (1960)). When reviewing an insurance policy, a court "should give the policy's words 'their plain, ordinary meaning.'" President v. Jenkins, 180 N.J. 550, 562 (2004) (quoting Zacarias v. Allstate Ins. Co., 168 N.J. 590, 595 (2001)). See also Doto v. Russo, 140 N.J. 544, 556 (1995). Ambiguities are "construed against the insurer and in favor of the insured, in order to give effect to the insured's reasonable expectation." Ibid. (citing Doto, supra, 140 N.J. at 556). Nonetheless, "courts cannot 'write for the insured a better policy of insurance than the one purchased.'" Flomerfelt, supra, 202 N.J. at 441 (quoting Walker Rogge, Inc. v. Chelsea Title & Guar. Co., 116 N.J. 517, 529 (1989)).
Exclusionary clauses are presumed valid if they are "'specific, plain, clear, prominent and not contrary to public policy.'" Princeton Ins. Co. v. Chunmuang, 151 N.J. 80, 95 (1997) (quoting Doto, supra, 140 N.J. at 559). They are generally construed narrowly with the burden "'on the insurer to bring the case within the exclusion.'" Flomerfelt, supra, 202 N.J. at 442 (quoting Am. Motorists Ins. Co. v. L-C-A Sales Co., 155 N.J. 29, 41 (1998)). If the words in an exclusionary clause are ambiguous, "courts apply the meaning that supports coverage rather than the one that limits it." Ibid. However, "[i]f the words used in an exclusionary clause are clear and unambiguous, 'a court should not engage in a strained construction to support the imposition of liability.'" Ibid. (quoting Longobardi v. Chubb Ins. Co. of N.J., 121 N.J. 530, 537 (1990)). See also Cobra Prods., Inc. v. Fed. Ins. Co., 317 N.J. Super. 392, 400-01 (App. Div. 1998), certif. denied, 160 N.J. 89 (1999).
On appeal, we construe the policy at issue in accordance with these guiding principles. The unambiguous terms of the exclusionary provision clearly encompass the accident at issue, which allegedly arose from an illegal and hazardous condition caused by the illumination of the Williams Paving dump truck's lights pointed toward oncoming traffic and in the direction of Nezoyur. Any alleged negligent operation or use, including parking illegally with the lights on, falls squarely within the policy exclusionary clause, even under the most narrow of interpretations. As a result, we decline to disturb the motion judge's decision.
Defendants assert that Williams Paving never entered an appearance or filed an answer to plaintiff's initial or amended complaints. On October 29, 2010, following the award of summary judgment to defendants, plaintiff requested a proof hearing but never filed a proof of service or a request to enter default judgment against Williams Paving pursuant to Rule 4:43-2. The hearing was never scheduled. Plaintiff did not seek to certify the October 4, 2010 order as final, but proceeded to mandatory arbitration pursuant to Rule 4:21A-1. On November 17, 2010, the arbitrator awarded plaintiff $14,500,000 in damages, finding Williams Paving 80% liable, and Nezoyur 20% liable. According to defendants, Williams Paving was not present at arbitration and has not filed a demand for a trial de novo contesting the arbitration award in the Law Division.
On January 19, 2011, plaintiff filed a motion in the Law Division to enforce the arbitration award. On March 8, 2011, after two adjournments requested by plaintiff's counsel, the judge entered an order upholding the arbitration award against "[Williams Paving] jointly, severally and in the alternative," in the amount of $14,500,000. The judge also awarded prejudgment interest in the amount of $821,677.54. We note that Williams Paving is not a party to this appeal.
In their reply brief, defendants assert that the judge erred in entering the March 8, 2011 order enforcing a default arbitration award pursuant to Rule 4:21A in favor of plaintiff against Williams Paving. Defendants contend, among other things, that the judgment is void, as Williams Paving never received notice of the November 17, 2010 arbitration hearing.
We note this issue is not properly before us, as the record does not reflect that Williams Paving ever moved for summary judgment, moved to vacate the arbitration award in the Law Division pursuant to Rule 4:21A-6(c), or filed a cross-appeal or a Notice of Appeal that would permit this court jurisdiction, R. 2:5-1(a). An appellate court "will not consider [an] issue if the record before the court is not complete as to the newly-presented issue." Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 230 (1998) (citing In re Bd. of Educ. of Boonton, 99 N.J. 523, 536 (1985) (refusing to consider newly-raised issue with "an insufficient factual basis" in the record)), cert. denied sub nom, Kramer v. Pub. Emp. Relations Comm'n, 475 U.S. 1072, 106 S. Ct. 1388, 89 L. Ed. 2d 613 (1986). See also R. 2:3-4(a). Further, defendants have failed to demonstrate they have standing to raise this issue on behalf of Williams Paving. See R. 2:3-3; Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 2:3-3 (2012) ("Ordinarily a party must join or be joined in the appeal in order to benefit from or be bound by the appellate disposition."); Hartford Ins. Co. v. Allstate Ins. Co., 68 N.J. 430, 435 (1975).
The sole issue on appeal is whether the October 4, 2011 order for summary judgment was properly entered in favor of defendants, the insurance carriers for Williams Paving. We see no reason to disturb Judge Suter's grant of summary judgment to defendants.