Opinion
DOCKET NO. A-3792-13T1
11-02-2015
CHARLES J. GARCIA, Plaintiff-Appellant, v. USAA CASUALTY INSURANCE COMPANY, Defendant-Respondent.
Thomas P. Lutz, attorney for appellant. Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for respondent (Barbara J. Davis, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1244-13. Thomas P. Lutz, attorney for appellant. Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for respondent (Barbara J. Davis, on the brief). The opinion of the court was delivered by ROTHSTADT, J.A.D.
Plaintiff Charles J. Garcia appeals from the Law Division's order granting defendant, USAA Casualty Insurance Company, summary judgment and dismissing his complaint with prejudice. Plaintiff's claim arose from defendant's denial of coverage for damage to his automobile that was caused by plaintiff driving his "truck off the road and crash[ing it] into a telephone pole" on January 1, 2011. On appeal, he argues there were "several issues of fact which precluded summary judgment" relative to a notice of cancellation sent by defendant to plaintiff, and the court improperly allowed "e-mail as notice of the insurance cancellation required under N.J.A.C. 11:2-36.7(b)." Defendant disagrees and argues that the court properly entered summary judgment in its favor.
We have considered the parties' arguments in light of our review of the record. We affirm substantially for the reasons stated by Judge James E. Isman in his thorough March 14, 2013 memorandum of decision.
We recite the facts taken from the summary judgment record, as viewed in the light most favorable to plaintiff, the non-moving party. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405-06 (2014). The parties do not dispute that when plaintiff purchased the truck in August 2010, he borrowed money from a lender, Americredit Financial Services, Inc., and obtained insurance for the vehicle, including collision coverage, from defendant. They also do not dispute that plaintiff failed to have the truck produced for a photo inspection, as required by defendant, pursuant to N.J.A.C. 11:3-36.3. Plaintiff argued, however, that requirement was only "incidental." There is also no dispute defendant denied coverage because the photo inspection was not completed and that the New Jersey Department of Banking and Insurance investigated a complaint filed by plaintiff and determined that defendant's actions were "in accordance with the policy contract provisions, applicable statutes and regulations." Their material dispute focused only on whether defendant sent plaintiff notice of cancellation of the collision coverage in accordance with the applicable insurance regulations, based on his failure to have the photo inspection completed.
When the court entered summary judgment in favor of defendant it also granted plaintiff's motion to file an amended complaint against Americredit, alleging it breached its contract with plaintiff by failing to notify plaintiff of the loss of coverage. We have not been informed of the status of that complaint.
Defendant filed its motion for summary judgment after discovery ended. In support, defendant filed numerous documents relative to a notice it sent to plaintiff about the need for the photo inspection, a notice that his policy's collision coverage would be cancelled if he failed to produce the vehicle, and a "Notice of Suspension of Physical Damage Coverage," dated September 23, 2010.
A proof of mailing also produced by defendant consisted of a copy the notice of suspension with a certification confirming mailing on September 27, 2010, with the name "T. Copeland" stamped on the signature line. In addition, defendant produced a U.S. Postal Service Form 3877 indicating the post office's receipt of letters for mailing from defendant addressed to various people, including plaintiff and Americredit, with a copy of a postmark bearing the same date as Copeland's certification.
In addition, defendant produced a copy of its amended declaration, dated November 10, 2010, indicating a substantial reduction in plaintiff's premium as a result of the loss of coverage. That document, addressed to plaintiff, expressly stated that there was no longer any collision coverage. There was no evidence that plaintiff took any action as a result of receiving the declaration statement with the reduced premium, other than apparently paying the amount billed.
Plaintiff filed certifications in opposition to defendant's motion in which he denied ever receiving the notice of suspension. He did not deny receiving any other document defendant sent to him at the same address.
Plaintiff also alleged that, contrary to defendant's cancellation notice, Americredit never received the notice of cancellation either. However, in a certification filed by plaintiff's attorney, counsel supplied a copy of a letter from Americredit confirming it received an e-mail - but not "an actual letter forwarded to you" - notifying it of the cancellation of plaintiff's coverage on September 23, 2010, and that it notified plaintiff in its October 5, 2010 billing statement that he no longer met "the minimum coverage requirements for [his] motor vehicle."
Plaintiff also suggested defendant's proof of mailing may "have been altered, possibly by an employee of [defendant] who realized after [plaintiff's] accident that he/she had not mailed [him] the cancellation notice." Counsel also argued that defendant's proof of mailing may have been altered. He also supplied a certified statement from a customer service manager for the United States Postal Service in San Antonio, Texas, which indicated that, in response to plaintiff's counsel's request for an "original or certified copy" of defendant's proof of mailing, it could not be supplied because the "requested document is for certified, Firm [sic] Book (3877). The certified was for an individual and firm [sic] books are utilized for large quantities of accountables being delivered to one business entity. Therefore, we are not in possession of the record."
This was the city from which defendant sent its notices to plaintiff.
Plaintiff also addressed the revised declaration page, which he did not deny receiving. However, according to plaintiff, "Neither [he] nor . . . most drivers read all the fine print information in notices from their insurance companies."
The court considered counsels' oral arguments on February 21, 2014. It then allowed the parties to make additional submissions, which it considered before issuing its written decision in March. In its decision, after first reciting the facts it found under the summary judgment standard, the court began its analysis by citing to N.J.A.C. 11:3-36.3, noting the law requires the photo inspection of a vehicle whose owner wishes to purchase physical damage coverage, and N.J.A.C. 11:3-36.7, which provides for the suspension of coverage if the inspection is not conducted.
The judge recognized that there is one "critical" factual dispute that he identified as being "whether the insurance cancellation notices were in fact sent to Plaintiff . . . or Americredit." He identified plaintiff's challenges to the record evidence produced in support of the motion and concluded plaintiff's assertions were incorrect.
First, the judge was satisfied Americredit received notice of the cancellation and advised plaintiff through its October 2010 billing of his lack of coverage. Second, the court rejected plaintiff's argument the postal service representative's certification created a material fact. The judge found the arguments were "not sufficient to" defeat summary judgment. The judge reviewed how each and every document confirmed defendant warned plaintiff that he had to have the truck inspected, if he did not do so his policy would be cancelled, and when it was not accomplished, the coverage was cancelled. Importantly, plaintiff received an amended declaration page which clearly indicated he no longer had the coverage and his premium was substantially reduced. The judge noted:
On page two of the declaration sheet, the policy states, 'The following coverages defined in this policy were not provided for comprehensive, collision, rental reimbursement, towing and labor.' Furthermore, Plaintiff was advised that his annual premium was revised and there was a significant annual decrease of $2158.69. Plaintiff acknowledges receipt of the declaration sheet. These exhibits, especially when combined, demonstrate that [defendant] provided sufficient notice to Plaintiff. Plaintiff admits he knew he needed to obtain a photo inspection to retain coverage, but that he did not obtain one. It is clear that Plaintiff understood the basic conditions of his insurance
coverage, even if he did not read the 'fine print.'
The court entered its order and this appeal followed.
Appellate review of a trial court's summary judgment determination is well-settled.
In our de novo review of a trial court's grant or denial of a request for summary judgment, we employ the same standards used by the motion judge under Rule 4:46-2(c). Brickman Landscaping, supra, [219] N.J. [at 406]. First, we determine whether the moving party has demonstrated there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in the light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Factual disputes that are merely "'immaterial or of an insubstantial nature'" do not preclude the entry of summary judgment. [Id. at 529] (quoting Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 75 (1954)). Also, we accord no deference to the motion judge's conclusions on issues of law. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010).
[Manhattan Trailer Park Homeowners Ass'n v. Manhattan Trailer Court & Trailer Sales, Inc., 438 N.J. Super. 185, 193 (App. Div. 2014).]
A motion for summary judgment will not be precluded by bare conclusions lacking factual support, Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011), self-serving statements, Heyert v. Taddese, 431 N.J. Super. 388, 413-14 (App. Div. 2013), or disputed facts "of an insubstantial nature." Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 4:46-2 (2015). "[W]hen the evidence is so one-sided that one party must prevail as a matter of law, the trial court should not hesitate to grant summary judgment." Brill, supra, 142 N.J. at 540 (citation and internal quotation marks omitted).
Applying these standards, we find plaintiff's arguments to be without merit. We conclude the court correctly entered summary judgment and dismissed the complaint, substantially for the reasons stated in Judge Isman's well-reasoned decision. We briefly add these comments.
Plaintiff's view of the insignificance of the photo inspection was misplaced from the time he was notified by mail of his obligation to have it completed, a notification which he never denied receiving. The requirement serves an important state policy. Specifically, N.J.S.A. 17:33B-34(a) states "[a] newly issued policy shall not provide coverage for automobile physical damage perils prior to an inspection of the automobile by the insurer." This provision was "designed to locate and penalize uninsured drivers and cut down on fraud and other unnecessary costs to the automobile insurance system." Assembly Appropriations Committee Statement A. 1. (L. 1990 c. 8 § 1). Without the inspection of plaintiff's truck being conducted, there was no way to establish what damage, if any, existed before his accident and what was caused by it, creating the very type of problem that the inspection was intended to help avoid.
For that reason, regulations make the inspection mandatory for coverage to be valid. "If the inspection is not conducted . . . the insurer shall suspend automobile physical damage coverage on the automobile . . . ." N.J.A.C. 11:3-36.7(a) (emphasis added). When a suspension occurs, the carrier must "mail to the insured, the producer of record and any lienholders a Notice of Suspension of physical damage coverage[,]" N.J.A.C. 11:3-36.7(b)(1), and "[o]btain a certificate of mailing or other evidence of mailing of the Notice of Suspension to the insured and shall retain the certificate and copy of the Notice in the insurer's file on the insured[,]" N.J.A.C. 11:3-36.7(b)(2), and "[m]ake a pro-rata premium adjustment." N.J.A.C. 11:3-36.7(b)(3).
A letter's mailing and receipt by the party to whom it was addressed is generally presumed if the mail is properly addressed, stamped and posted. SSI Med. Servs., Inc. v. State, Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 146 N.J. 614, 621 (1996). In order to invoke the presumption, a party must prove by a preponderance of the evidence that (1) the mailing was correctly addressed; (2) that the proper postage was affixed; (3) that the return address was correct; and (4) that the mailing was deposited in a proper mail receptacle or at the post office. Id. at 621-22. As already noted, additional requirements are imposed for proof of mailing and receipt of the notice of suspension. See N.J.A.C. 11:3-36.7(b)(2). A certification from the individual mailing the notice and the production of Form 3877 from the postal service satisfies the additional requirements for proof of mailing and receipt. See Ward v. Merced, 277 N.J. Super. 590, 594 (App. Div. 1994) (explaining Form 3877 and approving its use as proof of mailing of notice of cancellation), certif. denied, 140 N.J. 275 (1995).
The same information satisfies the requirements for cancellation of a policy. See N.J.S.A. 17:29C-10, which provides:
No written notice of cancellation . . . shall be effective unless a. (1) it is sent by certified mail or (2) at the time of the mailing of said notice, by regular mail, the insurer has obtained from the Post Office Department a date stamped proof of mailing showing the name and address of the insured and b. the insurer has retained a duplicate copy of the mailed notice which is certified to be a true copy.
We find from the documents produced by defendant that it complied with each of the regulation's requirements and it was entitled to the presumption of receipt, especially in light of plaintiff never challenging the correctness of the address to which the required notification was sent or explaining why, of all the numerous documents sent to his home, there was only one notice he did not receive. We find unpersuasive plaintiff's reliance upon the postal service's representative's statement to create a question of material fact. It did not refute the notice's proof of mailing and, under the totality of the circumstances, failed to create a question of fact of a substantial nature warranting the denial of summary judgment.
At best, we deem the postal representative's certified statement to be unclear. Our understanding from it is that the representative understood the subpoena to request copy of proof of certified mailing to plaintiff and, as explained, Form 3877 is not used for proof of that type of mailing. --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION