MICHAEL J. KELSEY VS. PLYMOUTH ROCK ASSURANCE, ETC. (DC-007855-18, MORRIS COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-3660-18
MICHAEL J. KELSEY,
Plaintiff-Appellant,
v.
PLYMOUTH ROCK ASSURANCE
d/b/a PLYMOUTH ROCK
MANAGEMENT COMPANY OF
NEW JERSEY d/b/a HIGH POINT
PREFERRED INSURANCE
COMPANY,
Defendant-Respondent.
_____________________________
Submitted November 30, 2020 – Decided March 17, 2021
Before Judges Mayer and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No. DC-007855-18.
Michael J. Kelsey, appellant pro se.
Tango, Dickinson, Lorenzo, McDermott and McGee,
LLP, attorneys for respondent (Richard M. Tango, of
counsel; Michael W. Cantelli, on the brief).
PER CURIAM
Plaintiff, Michael J. Kelsey, appeals from a March 15, 2019 order granting
summary judgment to defendant, Plymouth Rock Assurance. We reverse and
remand.
This case arises from an insurance claim for property damage caused by
Superstorm Sandy. Defendant denied coverage, contending that plaintiff failed
to give prompt notice of the claim as required under the insurance policy.
Plaintiff, who is self-represented, filed suit alleging that the insurance company
acted in bad faith in violation of the New Jersey Unfair Claims Settlement
Practices Act (NJUCSPA), N.J.S.A. 17B:30-2. Defendant did not file a timely
answer to the civil complaint and the trial court entered default. Defendant
thereafter filed a motion to vacate the default and to permit it to file an answer
out-of-time. The trial court granted defendant's motion on February 8, 2019.
On March 1, 2019, defendant filed a notice of motion for summary judgment.
On March 14, 2019, plaintiff filed an opposition to defendant's summary
judgment motion and filed a motion to strike defendant's answer and reinstate
defendant's default status nunc pro tunc.
The trial court granted defendant's motion for summary judgment on
March 15, 2019. Apparently, the court was unaware that plaintiff had filed an
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opposition. The box marked "unopposed" was checked on the court's March 15,
2019 order. The order does not include a statement of reasons, and so far as the
record indicates, the court did not place its reasons for granting summary
judgment on the record. On March 28, 2019, the court denied plaintiff's motion
to strike defendant's answer and reinstate default status, stating "[m]otion denied
as moot. Summary judgment was already granted in this case."
As noted, plaintiff appeals from the March 15, 2019 order that incorrectly
presupposed that defendant's motion was unopposed. Defendant acknowledges
in its appeal brief that plaintiff had in fact filed opposition. We note further that
defendant's appeal brief argues the merits of its summary judgment motion but
does not address or even mention plaintiff's central contention on appeal that the
trial court incorrectly assumed that plaintiff's summary judgment motion was
unopposed.
"[W]hen deciding summary judgment motions, trial courts are required to
engage in the same type of evaluation, analysis or sifting of evidential materials
by [Rule] 4:37-2(b) in light of the burden of persuasion that applies if the matter
goes to trial." Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 539–40
(1995). It also is well-settled that a motion court must explain the reasons for
its decision. R. 1:7-4. Accordingly, "[a]lthough our standard of review from
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the grant of a motion for summary judgment is de novo, . . . our function as an
appellate court is to review the decision of the trial court, not to decide the
motion tabula rasa." Estate of Doerfler v. Fed. Ins. Co., 454 N.J. Super. 298,
301–02 (App. Div. 2018) (emphasis in original) (internal citation omitted). 1
Plaintiff is entitled to have the trial court consider his arguments for
opposing summary judgment against him. In this instance, it does not appear
that the trial court considered those arguments, and the reasons for granting the
motion were not written or placed orally on the record. For these reasons, we
are constrained to vacate the order granting summary judgment and remand for
1
In addition, Rule 2:5-1(b) provides:
Within [fifteen] days [after the appellant has placed the
trial judge on notice of the appeal], the trial judge . . .
may file and mail to the parties an amplification of a
prior statement, opinion[,] or memorandum made either
in writing or orally and recorded pursuant to [Rule] 1:2-
2. If there is no such prior statement, opinion[,] or
memorandum, the trial judge . . . shall within such time
file with the Clerk of the Appellate Division and mail
to the parties a written opinion stating findings of fact
and conclusions of law.
[(emphasis added).]
In this instance, it appears that the trial court also failed to adhere
to this requirement.
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the trial court to make appropriate findings under the Brill standard. We offer
no opinion on the merits of defendant's summary judgment motion.
Reversed and remanded for proceedings consistent with this opinion. We
do not retain jurisdiction.
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