NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 8, 2013
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-163-11.
Michael J. Paragano argued the cause for appellant (Pellettieri, Rabstein & Altman, attorneys; Anne P. McHugh, on the brief).
James P. Lisovicz argued the cause for respondent (Coughlin Duffy LLP, attorneys; Mr. Lisovicz, of counsel and on the brief; Brooks H. Leonard, on the brief).
Before Judges Alvarez and Ostrer.
Plaintiff Stephen Oakes appeals the September 14, 2012 Law Division grant of summary judgment to defendant Zurich Insurance Company on its motion to dismiss his complaint seeking damages for personal injury. We affirm for the reasons stated by Judge Honora O'Brien Kilgallen, with only brief comment.
On January 12, 2009, in the middle of the day, Oakes regained consciousness while on the shoulder of the road in front of his work truck. He was confused and disoriented, did not remember anything that happened after he had pulled over to inspect his vehicle and walked in front of it for that purpose. Police were called after Oakes was stopped by his work crew while driving his truck erratically.
Oakes remembered trying to stand up in front of his vehicle and hearing a man who was walking by shouting at him. He described the statement thus: "Taylor and oil truck, like oil truck, Taylor, but as I said, even then it was just Taylor and oil truck."
Oakes had a wound on the back of his head behind his ear. When taken to the hospital for treatment, Oakes told hospital personnel that he had been struck by the side mirror of a truck, fell down, and was confused and dizzy as a result.
Eyewitnesses were never located. Zurich's policy with Oakes's employer included a New Jersey uninsured and underinsured motorist coverage endorsement as required by N.J.S.A. 17:28-1.1.
In reaching her decision to dismiss plaintiff's complaint against Zurich, Judge Kilgallen noted that Taylor Oil had been earlier granted summary judgment dismissing plaintiff's claims against it because Oakes was unable to establish that a Taylor Oil truck was involved. Judge Kilgallen also noted that the doctor's report drew no conclusions regarding the manner in which the injury was inflicted. Nothing about the injury per se established causation. The doctor's report only reiterated Oakes's description of how the injury was inflicted: that an unidentified passerby told Oakes that he had been struck by a Taylor Oil truck. As Judge Kilgallen further observed, the statement, if admissible at all, would only be admissible against Taylor Oil, not Zurich. Even in the police report, Oakes was quoted as repeating the passing stranger's comments that the incident involved a Taylor Oil truck.
As Oakes readily admitted at deposition, he believed his injuries were caused by a blow behind the head because that is what he was told. He does not remember anything that occurred between when he walked in front of his vehicle and when he came to. Although mindful of the case law regarding uninsured motorists claims and corroboration, Judge Kilgallen stated: "[T]here has to be some initial story . . . that is consistent and somewhat trustworthy. And then yes, you don't have ...