Opinion
DOCKET NO. A-1356-11T4
04-08-2013
MOISES ROLON, Plaintiff, v. NANCY M. SELLERS, Defendant. MOISES ROLON, Plaintiff-Respondent, v. STATE FARM INDEMNITY COMPANY, Defendant-Appellant.
Chierici, Chierici & Smith, attorneys for appellant (Donald R. Chierici, on the briefs). Stephen Altamuro, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez, Waugh and St. John.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket Nos. L-1794-09, L-5813-09.
Chierici, Chierici & Smith, attorneys for appellant (Donald R. Chierici, on the briefs).
Stephen Altamuro, attorney for respondent. PER CURIAM
This is an appeal from the August 12, 2011 grant of summary judgment ordering defendant State Farm Indemnity Company (State Farm) to extend uninsured motorist coverage (UM) to plaintiff Moises Rolon. We decline to reach the substantive issue raised on appeal: whether the alleged responsible driver, who had a "basic" automobile policy, N.J.S.A. 39:6A-3.1, without personal liability coverage, is considered an "insured" or merely an "underinsured" driver. We do not reach the merits because summary judgment was granted on an incomplete record without adequate findings of fact and conclusions of law. We have no alternative but to vacate the judgment and remand for additional proceedings, so that judgment can be rendered pursuant to Rule 1:7-4(a).
The facts can be briefly summarized. On April 16, 2007, Rolon was operating a motor vehicle owned by his then fiancée, now wife, Nancy Santos, with whom he resided. On that date he was involved in an accident with a vehicle owned by defendant Nancy Sellers. Her basic automobile policy did not include optional bodily injury liability coverage.
On April 7, 2009, Rolon filed a personal injury complaint against Sellers. Not surprisingly, although it initially responded, Sellers's insurance company withdrew from the case because of Sellers's limited coverage. Rolon's complaint against Sellers was then consolidated with Rolon's November 18, 2009 complaint against State Farm, seeking benefits under the automobile insurance policy issued to Santos. Rolon does not appeal the eventual dismissal with prejudice of his lawsuit against Sellers.
State Farm filed a motion for summary judgment on July 30, 2010. On August 27, 2010, the first Law Division judge heard oral argument as to whether Sellers's vehicle should be considered uninsured or underinsured for purposes of deciding Rolon's entitlement to benefits under Santos's policy. Rolon took the position that he was either a named insured because he was a listed driver, and/or that he was eligible for benefits because Sellers's lack of liability insurance meant she was actually an uninsured driver.
Rolon's appendix includes Santos's automobile insurance declaration pages for the period of time from January to May 2007 and May to November 2009. It also includes a letter from her insurance agent indicating that on April 2, 2007, approximately two weeks before the accident, Rolon was added to the policy as a "listed driver." No amended declaration page was provided, nor any explanation for the omission. State Farm's policy manual does not define "listed driver," explain the benefits available to a person in that category, or the manner in which such coverage differs from that available to a named insured or to a mere passenger in the vehicle.
Defendant, without further explanation or record support, asserts that the status of listed driver is of no consequence. In similar fashion, defendant also disputes that a higher premium was paid.
The first judge assigned to the matter denied defendant's first summary judgment motion. On September 24, 2010, defendant then filed a motion for reconsideration, which that judge denied without oral argument on October 29, 2010.
The matter was assigned to a second Law Division judge who conducted a pretrial conference on February 28, 2011, and directed counsel to file simultaneous motions for summary judgment. On May 27, 2011, this second motion judge heard oral argument on the cross-motions and reserved decision. On August 12, 2011, he granted plaintiff's motion for summary judgment and denied defendant's application. He did so without rendering any findings of fact or conclusions of law whatsoever. See R. 1:7-4. No explanation was made for the delay between oral argument and decision. Written in longhand on the typed order is the conclusion that Rolon is "uninsured."
Inexplicably, on October 5, 2011, the parties entered into a consent order which the trial judge designated final for purposes of appellate review of the August 12 order. The purported final judgment characterized the earlier order as having found that Rolon was covered "under the policy of insurance issued to Nancy Santos by State Farm." The parties agreed that the only issue for appellate review was the legal question of whether Sellers was an uninsured or underinsured motorist. It was further stipulated that Rolon was entitled to $50,000 in damages if "he prevails after all appeals have been exhausted." The consent order also provided that if defendant obtained "a ruling that [Rolon] is not covered under the policy of insurance issued to Nancy Santos by State Farm, he shall receive $0.00."
As we have said, having searched the record, we find no statement of reasons, written or oral, for the August 12 order. It is not surprising that there is no statement of reasons for the October 5 purported final judgment either, as it was entered by consent, seemingly to advance the appeal. It is our responsibility to review only final orders of the trial court, absent leave to appeal, even if the court has erroneously characterized the order as final, the agreement of the parties notwithstanding. Hudson v. Hudson, 36 N.J. 549, 553 (1962); Hogoboom v. Hogoboom, 393 N.J. Super. 509, 515 (App. Div. 2007). Our jurisdiction is defined in Rule 2:2-3, and the trial court and the parties cannot by agreement enlarge that jurisdiction. Hogoboom, supra, 393 N.J. Super. at 515. Thus we conclude that the judgment granted to Rolon must be vacated and the case remanded. The trial judge who decided the matter did not engage in a reasoned analysis of the facts and relevant law. See R. 1:7-4(a).
Furthermore, the legal issues may be made moot by the production of some document, such as a declarations page, that would definitively answer questions regarding the coverage available to Rolon. In any event, we decline to render an opinion in the absence of mandatory factual findings and legal conclusions.
Vacated and remanded for supplemental proceedings in accordance with this opinion.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION