Opinion
DOCKET NO. A-5107-12T3
02-17-2015
RANDY S. BROWN, as the Administrator ad Prosequendum of the Estate of FRANCES MITCHELL-BROWN, Plaintiff-Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, a/k/a/ GEICO, Defendant-Respondent.
Crystal M. Ullrich argued the cause for appellant (The Anthony Pope Law Firm, P.C., attorneys; Jason LeBoeuf, on the brief). Stephen A. Rudolph argued the cause for respondent (Rudolph & Kayal, P.A., attorneys; Mr. Rudolph, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Fasciale and Haas. On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6143-11. Crystal M. Ullrich argued the cause for appellant (The Anthony Pope Law Firm, P.C., attorneys; Jason LeBoeuf, on the brief). Stephen A. Rudolph argued the cause for respondent (Rudolph & Kayal, P.A., attorneys; Mr. Rudolph, on the brief). The opinion of the court was delivered by FUENTES, P.J.A.D.
This litigation arises from the tragic accidental death of a young woman and her mother. On February 14, 2011, twenty- four-year-old Jaclyn McVaugh was driving her mother's 2005 Mitsubishi Galant heading northbound on Key Road in Winslow Township when she rear-ended a Ford Expedition, causing her car to cross over the center lane and collide with a Honda "which was stopped or almost stopped in the southbound passing lane" of Key Road. McVaugh's mother, Frances Mitchell-Brown, was seated in the front passenger seat; McVaugh's three-year-old daughter was in a child-seat in the rear passenger compartment. Neither one of the adult occupants of the Mitsubishi were wearing their seatbelts. Both died. The child survived.
At the time of the accident, the Mitsubishi was insured by defendant Government Employees Insurance Company (GEICO). Plaintiff Randy Brown was married to Mitchell-Brown; McVaugh was his stepdaughter. Plaintiff and Mitchell-Brown were the only named insureds on the Mitsubishi policy issued by GEICO. Plaintiff sued GEICO claiming the coverage limit on the Mitsubishi policy was improperly reduced without the authorization of one of the two named insureds. The case was tried before a jury resulting in a verdict in favor of GEICO.
Plaintiff filed a motion for a new trial arguing the verdict was against the weight of the evidence. Applying the standard established under Rule 4:49-1(a), the trial judge denied plaintiff's motion. Plaintiff now appeals from this order, arguing the trial judge erred by failing to appreciate the jury's verdict was against the weight of the evidence. Plaintiff also argues he was denied a fair trial based on certain evidential rulings made by the judge in the course of the trial.
Our review of a trial court's evidential rulings or ultimate decisions is strictly circumscribed by the Notice of Appeal. R. 2:5-1(f)(3)(A). Here, the only order plaintiff identified in his Notice of Appeal is the trial judge's May 28, 2013 order denying his motion for a new trial. We acknowledge plaintiff referred to certain evidential rulings made by the trial court in the course of the trial in the case information statement plaintiff filed pursuant to Rule 2:5-1(f)(2) and in his appellate brief. However, it is well-settled that we review "only the judgment or orders designated in the notice of appeal[.]" 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994)). See also R. 2:5-1(f)(3)(A). Stated differently, any arguments raised by plaintiff that fall outside the four corners of the Notice of Appeal fall outside the scope of our appellate jurisdiction in this case, and are therefore not reviewable as a matter of law.
Thus, mindful of the limits of review involved in this appeal, we will endeavor to address the only issue that is properly before us: the propriety of the trial court's decision to deny plaintiff's motion for a new trial after applying the standards established in Rule 4:49-1(a). We derive the following facts from the evidence presented at trial, which consisted of plaintiff's testimony, the testimony of a GEICO senior underwriter, and documents relevant to the automobile insurance policy at issue in this case.
I
In 2000, plaintiff and Frances Mitchell-Brown were involved in a romantic relationship. They eventually decided to share a residence. Mitchell-Brown had two children from a prior relationship, Jaclyn, who was twelve years old at the time, and Martin who was fifteen. Thus, plaintiff's household consisted of himself, Mitchell-Brown, and the two children. Plaintiff and Mitchell-Brown married in 2002.
We refer to decedent by her first name here because she was a child at the time. No disrespect is intended.
Jaclyn moved out of the residence after her mother married plaintiff, but she returned "sometime in 2008" with her own infant daughter. Plaintiff testified that "Jaclyn had a job. She took care of her own bills[,]" including her own car insurance. In fact, plaintiff and his wife did not insure any of the children's cars. According to plaintiff, his wife's children were responsible for their own car insurance.
In June 2008, plaintiff purchased from GEICO an insurance policy for his own car, a 2005 Mitsubishi Gallant. Plaintiff testified that he worked in the automobile industry in various capacities for nearly thirty-seven years. He testified that his employment experience made him "absolutely" familiar with coverage limits and automobile insurance policies. Thus, he requested "maximum coverage" when he purchased his policy from GEICO.
The first auto policy GEICO issued to plaintiff had a six-month coverage period that began on June 17, 2008 and ended on December 17, 2008. Thereafter, the policy renewed in six-month intervals. The policy listed plaintiff and his wife Mitchell-Brown as the named insureds. In this capacity, each had the authority to unilaterally change the terms of the policy, including the coverage limit, without the other's knowledge or approval. As originally issued, the Mitsubishi policy provided third-party bodily injury liability limits of $250,000/$500,000 and personal injury protection (PIP) limits of $250,000. Plaintiff's last renewal reflecting these coverage limits was effective from June 17, 2010 through December 17, 2010. Plaintiff testified that he was the only person in the family who maintained the car insurance policy, addressed any issues relating to it, and was responsible for paying the premiums.
In November 2010, GEICO records reflect certain specific changes were made to plaintiff's Mitsubishi policy. Plaintiff does not dispute that the policy was amended. However, he contended before the jury that these changes or amendments to the policy were not made by one of the two named insureds.
As stated earlier, only two witnesses testified in this trial. GEICO's witness was Robin Lubow, a senior underwriter. She testified that GEICO records reflect that, "[o]n November 24, 2010, at 12:43 p.m., a customer service representative did make a notation that 'Ms. Policyholder' — which would be Frances Mitchell-Brown — 'requested coverage changes effective 12/17/10.'" Plaintiff disputed his wife made this phone call and questioned GEICO's procedure for verifying the identity of its callers.
Lubow testified she was uncertain whether the November 24, 2010 telephonic amendment to the policy had been recorded. However, even if the call had been, Lubow explained that phone recordings are not retained for more than thirty days. She assumed the customer service representative followed GEICO's standard business practices and asked certain key questions designed to confirm the caller's identity. Lubow described for the jury the procedures GEICO uses to verify the identity of policyholders who request to make policy changes over the phone:
Well, the first thing that we ask is who are we speaking to. We ask for their name. And once that's given, we ask for the policy number. Once the policy number is given, then we go through a verification process. We ask for date of birth from the person we are talking to, and then the ZIP code.
During the November 24, 2010 phone call, the person identified as plaintiff's wife made a number of changes to the policy. According to Lubow, GEICO records indicate that "'Ms. Policyholder' - again, referring to Frances Mitchell-Brown - 'requests to add daughter Jaclyn McVaugh to policy.' And 'Jaclyn's driver's license is suspended. Advised policyholder to have daughter clear.'" Jaclyn's vehicle, a 2001 Toyota Camry, also became insured under the policy, and Jaclyn's email address, jaclyn_meah@yahoo.com, was added as a contact source. Prior to these policy changes, no email address had ever been used as a contact source on plaintiff's policy. GEICO's records indicate that new "I.D. cards [were] being mailed at 12:59 p.m. . . . for the 2001 Toyota." The cards were mailed to plaintiff's home and emailed to Jaclyn McVaugh's personal email address.
One of the key changes made to the policy concerned the coverage. Bodily injury liability limits were reduced from $250,000/$500,000 to $15,000/$30,000, to take effect at the time of the policy renewal scheduled for December 17, 2010. With respect to PIP coverage, Lubow testified that the record indicated "an automated coverage adjustment form was signed and effective date 12/17/10. That refers to the coverage selection form, the e-signed coverage selection form for the reduction of the PIP option from . . . 250,000 to . . . 15,000." The change in PIP coverage required the insured's signature to take effect. According to GEICO records, "Randy Brown" e-signed the documents on the GEICO website.
Plaintiff testified and argued to the jury that this should be considered as evidence of an improper modification of the policy because he always used his middle initial when signing his name. In rebuttal, Lubow testified that it is not uncommon for policy holders to make changes to their policies. As she explained, people change their policy limits "all the time." In plaintiff's case, none of the data entries appeared unusual. Policy holders routinely drop coverages from $250,000/500,000 to $15,000/30,000.
A GEICO policy with a declarations page dated November 25, 2010, was mailed to plaintiff's residence. Lubow explained that "[a] declarations page is issued by GEICO to its policyholders. It declares the actual coverage information to its insureds. It basically breaks down who is insured, the named insureds, the address, the vehicles, the coverages, the premiums." The November 25, 2010 declarations page was admitted into evidence. The document clearly lists Jaclyn McVaugh as an additional driver and her 2001 Toyota Camry as an insured vehicle. The coverage limits for bodily injury liability indicates $15,000/$30,000, and is plainly included on the first page. Plaintiff testified that he never received this policy. He also maintained that neither he nor his wife made the changes it referenced.
Another policy declarations page dated November 27, 2010, was also admitted into evidence. Lubow testified this document was mailed to plaintiff and reflects changes made to the PIP coverage. Plaintiff again denied ever seeing this document. Plaintiff testified that at the time he lived in a condominium complex where the mailboxes for the residents were located approximately two-and-a-half blocks away. According to plaintiff, Jaclyn was responsible for getting the mail from the mailbox on a daily basis. Plaintiff stated that he had received the GEICO policies from 2008 to November 2010. However, he did not receive the policy statements in November 2010. He surmised that Jaclyn must have been keeping the mail from him.
Plaintiff denied ever using GEICO's website or Jaclyn's email address reflected in GEICO's records. He denied making any changes to his policy in November 2010; he also never saw his wife making any calls to GEICO. Plaintiff testified he understood the implications of lowering the coverage limits in the policy. He thus urged the jury to reject GEICO's account of events because he had no reason to lower the coverage in his policy.
Prior to the November changes, plaintiff's premium for the six-month coverage period was $730.10. After the first change in coverage, his premium increased to $1,212.60. When the PIP coverage limits were subsequently lowered, the premium decreased to $892.50. Plaintiff testified that on November 28, 2010, he paid GEICO $730.10, corresponding to the "full bill [he] received." Thus, he still owed GEICO $162.40 to cover the increased premium. According to GEICO records, an additional $216.05 credit card payment was made on Thursday, February 10, 2011, at 12:46 p.m. with Randy S. Brown's Visa card.
With respect to this $216.05 payment, plaintiff testified: "I did not make a payment to GEICO. I don't know who made a payment to GEICO. It could be anybody who made the payment to GEICO." Without a competent evidential basis, plaintiff testified that he believed Jaclyn took his credit card and made the payment without his knowledge or consent. GEICO's records indicate payments were made on plaintiff's policy via credit card on at least three other occasions, including twice after the death of Jaclyn and plaintiff's wife.
The jury returned a 7-1 verdict in favor of GEICO, finding it had not "improperly lowered the automobile insurance coverage limits for [plaintiff] and his wife, Frances Mitchell-Brown." The trial judge thereafter denied plaintiff's motion to set aside the jury's verdict as against the weight of the evidence.
II
As we noted in our preliminary statement, plaintiff appeals only from the May 28, 2013 order denying his motion for a new trial. Rule 2:5-4(a) defines the record on appeal as consisting of "the stenographic transcript or statement of the proceedings therein[.]" Here, plaintiff failed to provide or otherwise include in the appellate record either the trial judge's written statement of reasons explaining the basis for his decision to deny plaintiff's motion for a new trial, or a transcript containing the judge's oral decision.
An appellant's failure to provide the appellate court the records necessary to conduct a meaningful review of the trial court's decision constitutes sufficient grounds to dismiss the appeal for lack of prosecution under Rule 2:9-9. Pursuant to Rule 4:49-1(a), a trial judge reviewing a motion for a new trial "shall grant the motion if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." This standard applies whether the motion seeks to vacate the verdict as being against the weight of the evidence, or because the trial judge's evidential rulings irreparably tainted the fairness of the proceedings or the reliability of the verdict. Crawn v. Campo, 136 N.J. 494, 510-12 (1994).
Although we apply essentially the same standard on appeal, see Rule 2:10-1, we are bound to defer to the trial court's "feel of the case" derived from the judge's personal observations of the witnesses' testimony during the trial and other intangible factors that cannot be duplicated by or extracted from the examination of the transcribed record. Baker v. Nat'l State Bank, 353 N.J. Super. 145, 169 (App. Div. 2002).
As eloquently explained by Justice Long in Zaman v. Felton:
The "feel of the case" is not just an empty shibboleth--it is the trial judge who sees and hears the witnesses and the attorneys, and who has a first-hand opportunity to
assess their believability and their effect on the jury. It is the judge who sees the jurors wince, weep, snicker, avert their eyes, or shake their heads in disbelief. Those personal observations of all of the players is "the feel of the case" to which an appellate court defers.
[219 N.J. 199, 214 (2014).]
Mindful of this standard of review, and considering plaintiff's failure to provide us with the transcript of the proceedings in which his motion for a new trial was argued, which presumably also contained the judge's reasons for denying the motion, we discern no basis to vacate the jury's verdict. Plaintiff's case was heavily based on the credibility of his testimony. Determining the credibility of a witness' testimony is a function exclusively delegated to the jury.
Given plaintiff's failure to provide us with the trial judge's reasons for denying his motion to set aside the jury's verdict under Rule 4:49-1(a), we have no way of applying the applicable standard of review to the judge's reasoning. See Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004) (affirming the Appellate Division's refusal to review the plaintiff's LAD claim where she failed to submit either a final order or transcript of trial proceedings); Johnson v. Schragger, Lavine, Nagy & Krasny, 340 N.J. Super. 84, 87 n.3 (App. Div. 2001) ("[T]he failure to supply pleadings that are essential to the proper consideration of the issues hinders our appellate review."). We have nonetheless independently reviewed the evidence from plaintiff's trial and do not believe the jury's verdict went "against the weight of the evidence."
We nevertheless emphasize that the jury considered the evidence presented by the parties over two days of trial. This evidence consisted primarily of the testimony from two witnesses: plaintiff and GEICO's senior underwriter. Based on this evidence, the jury found plaintiff did not prove, by a preponderance of the evidence, that GEICO improperly lowered the automobile insurance coverage limits in the policy issued to plaintiff and his wife, the late Frances Mitchell-Brown. It was undisputed that plaintiff and decedent were listed as the named insureds under the original policy. They were individually vested with the authority to unilaterally amend the coverage under the policy. GEICO provided competent evidence at trial, in the form of Lubow's testimony and properly admitted documentary evidence, that plaintiff's wife lowered the bodily injury liability coverage prior to the accident on February 14, 2011.
Under these circumstances, and notwithstanding plaintiff's procedural irregularities, we discern no legal basis to disturb the jury's verdict.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION