KEITH DECKER VS. PLYMOUTH ROCK ASSURANCE (L-8989-18, BERGEN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-4834-18T3
KEITH DECKER,
Plaintiff-Appellant,
v.
PLYMOUTH ROCK ASSURANCE
and KATHLEEN HILL,
Defendants-Respondents.
______________________________
Argued March 11, 2020 – Decided April 1, 2020
Before Judges Haas and Mayer
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-8989-18.
Charles Thomas Kannebecker argued the cause for
appellant.
Glenn Donald Curving argued the cause for
respondents (Riker Danzig Scherer Hyland & Perretti
LLP, attorneys; Glenn Donald Curving, of counsel and
on the brief; Peter M. Perkowski, Jr., on the brief).
PER CURIAM
Plaintiff Keith Decker appeals from a June 24, 2019 order granting
summary judgment to defendants Palisades Safety and Insurance Association 1
(Palisades) and Kathleen Hill. We affirm.
We briefly summarize the facts. Plaintiff was a passenger in his
employer's car when the car was stuck by the tortfeasor's vehicle. Plaintiff
suffered injuries as a result of the collision. Because the employer's car was
insured by Palisades, plaintiff sought underinsured motorist benefits under that
policy. Palisades eventually determined plaintiff was an additional insured as
an occupant of the employer's vehicle.
However, Palisades deemed plaintiff ineligible for underinsured motorist
coverage due to the "step-down" provision in its policy. According to Palisades,
its policy limited coverage for additional insureds, such as plaintiff, to $15,000.
Because plaintiff accepted the sum of $50,000 from the tortfeasor's insurance
carrier, Palisades determined "there [was] no triggering of [underinsured
motorist] coverage under [the employer's] policy" and therefore denied
plaintiff's claim.
1
The correct designation for the corporate defendant is Palisades Safety and
Insurance Association.
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2
In December 2018, plaintiff filed suit against defendants for underinsured
motorist coverage under his employer's policy with Palisades and for other
relief. One month later, defendants filed their answer and the court set
November 10, 2019 as the discovery end date. In May 2019, defendants moved
for summary judgment, which plaintiff opposed.
The judge reviewed the written arguments and considered the oral
arguments of counsel on June 21, 2019. Despite serving no discovery, plaintiff
argued further discovery was required prior to considering defendants' motion
for summary judgment. Plaintiff claimed he needed the "deposition of
[Palisade's] claims adjuster to determine if [the employer] was provided proper
notice that the step-down provision was included in the Palisades policy."
Defendants countered "further discovery [was] not needed since [p]laintiff, as
an incidental beneficiary[,] has no standing to challenge the policy as [p]laintiff
would never have received notice of a change in the Palisades policy."
In granting summary judgment, Judge Avis Bishop-Thompson concluded
the tortfeasor was not underinsured because the tortfeasor's insurance carrier
paid $50,000 to settle plaintiff's claim, and Palisades' policy limited plaintiff's
recovery as an additional insured to $15,000. Thus, the limit of the tortfeasor's
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insurance policy was greater than the limit of Palisades' policy and plaintiff was
not entitled to underinsured motorist benefits.
In addition, the judge determined no additional discovery propounded by
plaintiff would satisfy his causes of action against defendants because, as a
matter of law, plaintiff lacked standing to assert claims which legally belonged
to plaintiff's employer as the Palisades policy holder. Nothing in the record
indicated plaintiff sought an assignment of his employer's right to challenge
notice of the policy's step-down provision or any other matters related to
Palisades' policy. The judge also found plaintiff failed to "specify what
additional discovery would establish [his] claims."
On appeal, plaintiff contends he had standing to challenge provisions in
Palisades' policy issued to his employer, including the step-down provision. In
addition, he argues summary judgment was premature because the discovery end
date had not expired.
We affirm for the cogent reasons expressed by Judge Bishop-Thompson
in her detailed written rider attached to the June 24, 2019 order. We add only
the following comments in response to plaintiff's contention that the judge
erroneously granted summary judgment prior to the close of discovery.
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Rule 4:46-1 permits a party to file a motion for summary judgment before
the close of discovery. When such a motion is filed, claims of incomplete
discovery will not defeat summary judgment if further discovery will not
patently alter the outcome. Wellington v. Estate of Wellington, 359 N.J. Super.
484, 496 (App. Div. 2003). A party opposing a motion for summary judgment
on the grounds that discovery is incomplete must "demonstrate with some degree
of particularity the likelihood that further discovery will supply the missing
elements of the cause of action." Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544,
555 (2015) (quoting Wellington, 359 N.J. Super. at 496). In opposing summary
judgment, a party must identify the specific discovery needed. See Trinity
Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007) ("A party
opposing summary judgment on the ground that more discovery is needed must
specify what further discovery is required, rather than simply asserting a generic
contention that discovery is incomplete."). "[D]iscovery need not be undertaken
or completed if it will patently not change the outcome." Minoia v. Kushner,
365 N.J. Super. 304, 307 (App. Div. 2004) (citations omitted).
Here, plaintiff failed to specify with any particularity the discovery to be
conducted and how such discovery would change the outcome of the case. In
the six months following the filing of his complaint, plaintiff admittedly
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propounded no discovery. He served no deposition notices and no
interrogatories. Overlooking his own failure to serve discovery, plaintiff argued
he still had time to conduct discovery because the discovery end date had not
expired. Plaintiff never identified specific individuals he sought to depose or
explain how additional discovery would preclude summary judgment as a matter
of law. Having reviewed the record, defendants' motion for summary judgment
was properly granted for the reasons expressed in the judge's comprehensive
written statement of reasons dated June 24, 2019.
Affirmed.
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