On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2420-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Guadagno.
Plaintiff Terrance Simpson appeals from an order dated October 21, 2011 granting summary judgment to defendant Encompass Insurance. We affirm.
On April 23, 2008, as plaintiff was driving westbound on 18th Avenue in Newark, a Ford Taurus struck his vehicle causing extensive damage.*fn1 The impact of the crash rendered Simpson unconscious for a brief period. When he regained consciousness, he observed the driver of the other vehicle fleeing the scene. Simpson attempted to give chase but collapsed after a few steps.
The responding police officer determined that Simpson's driver's license had been suspended and issued a summons for driving on the revoked list. N.J.S.A. 39:3-40. The Taurus was owned by defendants Harold Sctoot and Lisa Byrd but had been stolen prior to the accident.
Simpson filed a claim with his insurance carrier, defendant, Encompass Insurance (Encompass), for uninsured motor vehicle (UM) benefits. By letter dated October 28, 2008, Encompass notified plaintiff that his UM claim was denied as his license was revoked on April 9, 2008, and was not restored until May 1, 2008, one week after the accident occurred.
On March 19, 2010, plaintiff filed a complaint in the Law Division against the owners of the Taurus. On April 23, 2010, he filed an amended complaint, adding Encompass as a defendant. On March 18, 2011, Encompass moved for summary judgment. The court denied the motion pending further discovery. Encompass deposed plaintiff on April 5, 2011. At the deposition, plaintiff testified that he learned the identity of the driver of the Taurus a few months after the accident from his friend, Kenny Mitchell. Mitchell told Simpson the driver of the Taurus was his son.
[Q:] Okay. Can you describe the young gentleman who ran from the [accident]? [A:] I know him.
[Q:] What is his name? [A:] He didn't even know it was me. He's a Mitchell. I know his momma and his daddy and them. But he's a Mitchell.
[Q:] What is his first name? [A:] He probably would be named after his father, Kenny. [Q:] Was he the driver or a passenger?
[A:] He was the driver. [Q:] Do you know where Kenny Mitchell lives? [A:] Actually, he's dead now. [Q:] He's dead? [A:] Yes. [Q:] Do you know when he died or what the circumstances of his death were? [A:] He got killed. [Q:] Do you know how he was killed? [A:] Gunshot. [Q:] Do you know why he was killed? [A:] No. He was in that gang stuff.
[Q:] How did you know it was him when he started running? [A:] I ran into his father. Actually, I ran into his father. Yeah. His father asked me where I was going. I said I was going to therapy. He said, "What are you going to therapy for?" "I was in a car accident like right up the hill." [Q:] Yeah? [A:] He said, ...