CALISE BELIN v. NEW JERSEY MANUFACTURERS INSURANCE COMPANY (L-2278-19, BURLINGTON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 5, 2022
• Docket: A-1329-20
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1329-20

CALISE BELIN and KIM BELIN,

Plaintiffs-Appellants,

v.

NEW JERSEY MANUFACTURERS INSURANCE COMPANY and MELINDA YOUNG,

Defendants-Respondents. _______________________________

Argued December 7, 2021 – Decided August 5, 2022

Before Judges Messano and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L- 2278-19.

Timothy J. Foley argued the cause for appellants (Foley & Foley, attorneys; Sherry L. Foley and Timothy J. Foley, of counsel and on the briefs).

Derek G. Timms argued the cause for respondents (Parker Young & Antinoff, attorneys; Brad A. Parker, of counsel; Derek G. Timms, on the brief). PER CURIAM

Plaintiff Calise Belin and her mother Kim Belin, appeal from summary

judgment in favor of New Jersey Manufacturers Insurance Company

dismissing their claim for underinsured motorist coverage. Because we agree

with Judge Belgard that there were no material facts in dispute regarding

liability for the accident, making NJM entitled to judgment as a matter of law,

we affirm.

The facts of this two-car accident are uncomplicated and easily

summarized. Plaintiff Calise Belin was driving to a basketball game after

work in a car owned by her parents. It was dark and raining and plaintiff had

her lights and windshield wipers on. She stopped at a stop sign on Lafayette

Road in Voorhees preparing to make a lefthand turn onto southbound

Haddonfield-Berlin Road. Looking both ways and not seeing anyone coming,

plaintiff made her turn.

Debra Lawless-Gattone was traveling northbound on Haddonfield-Berlin

Road on her way to pick up her son from hockey practice. According to her,

Haddonfield-Berlin Road widens from a two-lane to a four-lane road just south

of Lafayette Road. She was in the left lane with her lights and windshield

wipers on, deciding whether to move to the right lane as she saw plaintiff's car

A-1329-20 2 approach the stop sign on Lafayette Road. Lawless-Gattone claimed she

slowed, not sure whether plaintiff was going to stop. Satisfied plaintiff wo uld

stop, Lawless-Gattone, whose travel was not controlled by any traffic sign or

signal, checked her rearview mirror and looked around to see if it was safe to

move into the right lane. When she turned back, plaintiff was coming out of

Lafayette Street on her right, turning in front of her. According to Lawless-

Gattone, she braked and turned the wheel in an attempt to avoid plaintiff but

didn't have enough time to stop before crashing into plaintiff's driver-side

door.

Lawless-Gattone gave a statement shortly after the accident that the

speed limit on Haddonfield-Berlin Road increased from 25 to 40 miles per

hour when the road widened to four lanes, and that she was traveling between

35 and 40 miles per hour at the time of the accident. At her deposition,

however, she testified the speed limit at the scene of the accident was 25 miles

per hour and she was traveling the speed limit. Plaintiff at her deposition

testified she was "not to blame for this accident" because she "did what was

necessary and what was needed" and the fault lay with Lawless-Gattone

because "she hit me." Asked what she thought Lawless-Gattone could have

A-1329-20 3 done to avoid the accident, plaintiff responded, "she could have paid better

attention."

Confronted with those facts on the motion, plaintiff insisted a jury could

find Lawless-Gattone was speeding, or at least driving too fast for the weather

conditions, was distracted by looking around to determine whether she should

change lanes and, that by the time she turned back to look at the road, plaintiff,

who was in the midst of her turn, had the right of way. Judge Belgard

disagreed.

Noting the parties agreed it was plaintiff's burden to establish Lawless-

Gattone was at least fifty percent responsible for the accident to permit

plaintiff to recover against NJM, see Stabile v. N.J. Mfrs. Ins. Co., 263 N.J.

Super. 434, 439-41 (App. Div. 1993), the judge found plaintiff failed to carry

her burden to establish a prima facie case of Lawless-Gattone's greater liability

for the accident. Although the judge acknowledged Lawless-Gattone's

different statements about the speed limit on Haddonfield-Berlin Road where

the accident happened, she found the discrepancy immaterial for purposes of

the motion. While Lawless-Gattone may have been confused about the speed

limit at her deposition, her testimony was consistent that she was not speeding .

Plaintiff offered no evidence to the contrary on the motion.

A-1329-20 4 Besides there being no evidence in the record suggesting Lawless-

Gattone was speeding, the judge also found no evidence Lawless-Gattone was

distracted as plaintiff alleged. The judge noted "motorists make lane changes

regularly," plaintiff offered no proof Lawless-Gattone was distracted in

contemplating such, and "[t]he fact is that here [it was] plaintiff, who was

making the left turn, [and] . . . is responsible for yielding to oncoming traffic,

making observations before leaving her stopped position and entering into

oncoming traffic." Viewing the facts on the motion in the light most favorable

to plaintiff, the judge found them — in the absence of an accident

reconstructionist who might have been able to cast doubt on the credibility of

Lawless-Gattone's testimony — "so one-sided in favor of the defendant here

and against the plaintiff" — the party making the left turn — that no rational

jury could resolve the case in her favor.

Plaintiff appeals, reprising the arguments she made to the trial judge that

the inconsistency in Lawless-Gattone's statements about the speed limit put

Lawless-Gattone's credibility in issue requiring evaluation by a jury, a

reasonable jury could find Lawless-Gattone was "distracted from the roadway

in front of her" by considering whether she should change lanes, and that an

accident reconstruction expert was not necessary for a jury to "understand that

A-1329-20 5 a speeding and distracted driver could cause an accident." She adds the trial

court's inquiries at argument and the reasoning of her decision reflect she

"undeniably and impermissibly weighed the evidence" on the motion "and did

so in a light most favorable to defendant." We disagree.

We review summary judgment using the same standard that governs the

trial court. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). Thus,

we consider "whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law." Liberty Surplus Ins. Corp., Inc. v. Nowell

Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life

Ins. Co. of Am., 142 N.J. 520, 536 (1995)).

Here, we agree with Judge Belgard that plaintiff did not adduce evidence

on the motion sufficient to permit a rational factfinder to conclude Lawless-

Gattone was speeding or distracted or that plaintiff, who was making a left turn

in front of Lawless-Gattone from a side street controlled by a stop sign, had

the right of way, even when viewed in the light most favorable to plaintiff.

See Brill, 142 N.J. at 540. In order to stave off summary judgment here, it was

incumbent on plaintiff "to demonstrate by competent evidential material that a

A-1329-20 6 genuine issue of fact exist[ed]." Robbins v. Jersey City, 23 N.J. 229, 241

(1957). Her failure to do so required the entry of summary judgment for NJM.

Affirmed.

A-1329-20 7