RODNEA COLEMAN VS. SHEAVONRA ADDERLEY (L-0030-16, ESSEX COUNTY AND STATEWIDE)

R
                                NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2104-18

RODNEA COLEMAN,

          Plaintiff-Respondent,

v.

SHEAVONRA ADDERLEY,
SHEREFER K. ARRINGTON,
STATE FARM INDEMNITY
COMPANY, AND LIBERTY
MUTUAL INSURANCE
COMPANY,

          Defendants-Respondents,

and

LIBERTY MUTUAL INSURANCE,

          Defendant/Third-Party
          Plaintiff-Appellant,

v.

SHEAVONRA ADDERLEY,
SHEREFER K. ARRINGTON,
KENYA ARRINGTON, STATE
FARM INDEMNITY COMPANY
AND GEICO INSURANCE
COMPANY,

     Third-Party Defendants-
     Respondents.
_____________________________

            Argued March 18, 2020 – Decided March 4, 2021

            Before Judges Fuentes, Haas and Enright.

            On appeal from the Superior Court of New Jersey, Law
            Division, Essex County, Docket No. L-0030-16.

            Evan D. Haggerty argued the cause for appellant
            (Connell Foley LLP, attorneys; Evan D. Haggerty, of
            counsel and on the briefs).

            Richard A. Greifinger argued the cause for respondent
            Rodnea Coleman.

      The opinion of the court was delivered by

FUENTES, P.J.A.D.

      The dispositive issue in this automobile insurance coverage case turns on

whether the competent evidence, presented to the judge sitting as the trier of fact

in a bench trial, supports the finding that at the time an accident occurred, the

driver had a "reasonable belief" she was authorized to use and operate the

insured vehicle.   The judge found the record developed at trial contained

sufficient competent evidence to find the driver had such a reasonable belief at

the time of the accident.


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                                        2
      Our standard of review is well-settled. "[W]e do not disturb the factual

findings and legal conclusions of the trial judge unless we are convinced that

they are so manifestly unsupported by or inconsistent with the competent,

relevant and reasonably credible evidence as to offend the interests of justice ."

Rova Farms Resort v. Invs. Ins. Co., 

65 N.J. 474

, 484 (1974) (quoting Fagliarone

v. Twp. of N. Bergen, 

78 N.J. Super. 154

, 155 (App. Div. 1963)).

      After reviewing the record developed at trial and mindful of our role as an

intermediate appellate court, we reverse.        The overwhelming competent

evidence shows the driver of the car was not authorized to drive the insured

vehicle at the time of the accident.

                                        I.

      In July 2014, Sherefer Arrington, the owner of a 2010 Lexus RX350 SUV

insured by Liberty Mutual Insurance (Liberty Mutual), travelled to Atlant a,

Georgia with her cousin, Kenya Arrington. 1 Sherefer decided to leave her Lexus

at the home of Claude Griffith, Kenya's boyfriend at the time. The record shows

Sherefer expected the car would remain there undisturbed until she returned




1
 Because Sherefer Arrington and Kenya Arrington have the same last name, we
will refer to them by their first names. We do not intend any disrespect.
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                                        3
from her trip to Atlanta. There is no evidence to support that Sherefer expressly

or implicitly authorized Kenya's daughter, Sheavonra Adderley, to drive the car.

      On July 24, 2014, Adderley drove the car without Sherefer's permission

while the latter was in Atlanta.   Adderley was involved in a one-car accident

when the Lexus struck a guardrail. There were four other occupants in the car.

Rodnea Coleman, who was in the front passenger seat, fractured her left arm in

the collision. Adderley left the scene without reporting the accident to the local

police department.

      As the owner of the car, Sherefer testified that she did not give Adderley

permission to drive the vehicle. Liberty Mutual denied coverage for the accident

based on Adderley's unauthorized use of the car. Liberty Mutual reached this

decision based in large part on Sherefer's emphatic denial of ever giving

Adderley permission to drive her car. Liberty Mutual found no reasonable basis

to infer Adderley was a permissive user of the vehicle at the time of the accident.

      The record contains the following statement signed and notarized by

Sherefer, Adderley, and Kenya on July 31, 2014, a week after the date of the

accident:

            I Sherefer K. Arrington left grey 2010 Lexus SUV with
            my cousin Kenya Arrington along with keys for
            safekeeping while she and I went away on vacation to
            Atlanta.

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                                        4
             The vehicle was taken without permission by her
             daughter, Sheavonra Adderley on [Saturday] night July
             26 whereupon she had an accident on [Route] 22 with
             4 other passengers. No police was called. The vehicle
             was returned to her home.

             I was notified Monday at 4:00 p.m. No knowledge until
             then.

             I had [the] vehicle towed while I was away to an auto
             shop. I returned to NJ on 7/31/14.

      A Liberty Mutual investigator obtained a recorded statement from

Adderley on March 24, 2015. In this interview Adderley admitted the car was

parked in the driveway of her mother's "ex-boyfriend's house." When the

investigator asked her if she had permission to use the car, Adderley responded:

"I never had like clear permission, but it was never a yes or a no not to use it

. . . ." The investigator returned to this issue of permission later in the interview:

             Q. I will ask you this question again, I might have asked
             you this earlier, there was no permission given or not
             given for you to drive the vehicle?

             A. Yes.

             Q. So you believe you, did you drive your cousin to the
             airport and then drive the vehicle back home?

             A. No her car, no I really can't remember but I believe
             I drove them to the airport but I am not sure in what car,
             if it was her car or my mom's car, I think it was my


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                                          5
            mom's car. I think it was my mom's car that I drove
            them to the airport in.

            Q. The keys were they left in your care or were they in
            a drawer?

            A. The keys were just in my house on a table.

      When Sherefer learned that Adderley drove the car without her knowledge

or consent, she reported the incident "to two [police] precincts," and filed a

formal report. Sherefer explained at trial that she did so because "I think a police

report got to be made for the insurance company. Secondly, I wanted to say she

took my car without consent. I didn't want any liability and I wanted that on

record."

      Kenya, Adderley's mother, testified that she accepted the keys to the car

directly from Sherefer. She agreed to keep the keys and understood that the car

would remain in her boyfriend Griffith's driveway until Sherefer returned from

Atlanta. Griffith was not home when Sherefer parked her Lexus in his driveway.

He was never given the keys to the car and was never told that he had permission

to use the vehicle. It is undisputed that Griffith did not give Adderley permission

to use the car. As the following testimony illustrates, Kenya made graphically

clear at trial that she never gave her daughter permission to drive the Lexus.

            Q. Okay. And did you ever give Sheavonra permission
            to drive her Lexus?

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                                         6
            A. No, I didn't.

            Q. And when you found out that she took the car, she
            was in the accident, you wanted to kill her, right?

            A. Of course.

            Q. And you wanted to strangle her, right?

            A. Of course.

      Griffith also testified that he never gave anyone permission to drive any

of Arrington's vehicles. A series of text messages Adderley sent Sherefer

following the car accident corroborates this fact. At counsel's request, Sherefer

read for the record at trial the content of a text she received from Adderley after

the accident:

            I just want to say I sincerely apologize for all the
            problems I have caused. I know what I did was out of
            line and disrespectful. I take full responsibility for my
            actions. I honestly learned my lesson from this and will
            never touch what's not mine. I know you're furious with
            me and I accept that. But once we get over this burden
            I hope we can put this behind us and remain close. I
            love you Cousin Kim,

            ....

            I-D-K [I don't know] what else to say but sorry and I
            regret what I did.




                                                                             A-2104-18
                                        7
                                         II.

      It is undisputed that the Liberty Mutual policy excludes liability coverage

if a person drives the covered vehicle without a reasonable belief that the insured

party has given that person permission to do so. This standard of reasonableness

has been consistently upheld by this court. Cox v. Russell, 

367 N.J. Super. 121

(App. Div. 2004) (a vehicle used without permission is uninsured, and a person

injured by that uninsured vehicle has a reasonable expectation to be covered by

her uninsured motorist coverage); Campbell v. New Jersey Auto. Ins., 270 N.J.

Super. 379, 386 (App. Div. 1994) ("coverage is not available to that vehicle or

to the operator of that vehicle once he steals it.").

      Our Supreme Court adopted the "initial permission" rule in Matits v.

Nationwide Mut. Ins. Co., 

33 N.J. 488

(1960). This rule required the trial court

to answer one basic question: did Sherefer give Griffith permission to use her

car in the first instance? If so, the "initial permission" rule provides that "any

subsequent use short of theft or the like while it remains in his possession,

though not within the contemplation of the parties, is a permissive use within

the terms of a standard omnibus clause in an automobile liability insurance

policy." Proformance Ins. Co. v. Jones, 

185 N.J. 406

, 412 (2005), (quoting

Matits, 

33 N.J. 496-97

) (emphasis added). We do not need to divine what are


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                                          8
the outer edges of the "initial permission" rule because the uncontested evidence

does not support its application in this case.

       In a written letter-opinion attached to the order of judgment, the trial judge

found that "Sherefer handed the key to [Kenya] knowing that [Kenya] was going

to Atlanta to meet her shortly. [Kenya] left the key in a prominent place at her

home and told Sheavonra where it was if needed." The trial record does not

support these facts. Kenya emphatically stated that she did not give Adderley

any instructions with respect to Sherefer's car. Kenya's mere possession of the

car keys did not convert her to a permissive driver. Griffith was the only person

who may have had the implied authority to move the car "if needed." The car

was parked on his property and the keys were left inside his domicile. However,

Griffith emphatically denied having any discussions with Adderley about the

car.

       A person commits the fourth degree offense of theft, commonly referred

to as a joyride, "if, with purpose to withhold temporarily from the owner, [she]

takes, operates or exercises control over a motor vehicle without the consent of

the owner or other person authorized to give consent." N.J.S.A. 2C:20-10(b).

Although Adderley was not found guilty of committing this criminal offense,

the record developed at this civil trial established all the elements of this offense


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                                          9
for the purpose of determining the applicability of the exclusion provision in the

insurance policy issued by Liberty Mutual. Adderley committed the fourth

degree theft offense of joyriding, "or the like," when she took possession and

operated Sherefer's Lexus automobile without Sherefer's or Griffith's consent,

Under these undisputed facts, the "initial permission" rule is not applicable.

Proformance, 

185 N.J. 412

.

      Reversed.




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                                       10

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