Appellate review in New Jersey for Summary Judgement— Anthony v. One Sun Farms, LLC, N.J. Super. App. Div. January 2019

Anthony v. One Sun Farms, LLC, N.J. Super. App. Div. January 2019

Submitted by New Jersey Truck Crash Lawyer, Jeffrey Hark



South State is in the business of highway construction with its principle place of business in Cumberland County, New Jersey.  The company in in the business of  paving roads, and asphalt and sand production. It is registered with the United States Department of Transportation (DOT) because it owns and operates commercial vehicles incidental to its business operation. South State has a registration number with the DOT but not an interstate “operating authority” number because it is not a for-hire carrier in the business of transporting other companies’ cargo. It is owned in part by Chester Ottinger, Jr. and in part by the Ottinger Family Trust. Seashore is owned by Ottinger’s wife, Mary Lou Ottinger. It is in the business of producing and delivering asphalt and supplying trucking services. During the relevant period, Seashore frequently provided trucks to South State for use in construction jobs.

At the time of the tragic accident on November 4, 2013, South State required certain portable concrete highway barriers, stored at a site near another project, in order to complete the construction of an exit ramp off the Garden State Parkway. A South State employee contacted Seashore, requesting vehicles for hauling the barriers. As Seashore did not have enough trucks available for the job, Seashore contacted One Sun. One Sun, a nursery business owned by Newton B. Shimp III, owns several trucks and occasionally leases vehicles to Seashore or South State. Shimp agreed to provide the necessary trucks to South State. South State, after the accident, paid for the delivery of the barriers.

While making the delivery, one of One Sun’s part-time drivers, Greg R. Hoover, violated the company’s policy prohibiting passengers—his girlfriend accompanied him that morning. On his return trip, Hoover failed to stop at a traffic light, striking several vehicles in the intersection, causing injuries, and finally, landing on top of an overturned car that had been stopped at the red light. One of the occupants of that vehicle died. Hoover’s blood test results came back positive for marijuana. Although at the time of the accident he held a valid commercial driver’s license as well as a valid driver’s license, he had a history of driving infractions.

Obviously the insurance company for Hoover paid this claim for his negligence.  However, given the large number of claimants and the significant amount of the claims the independent’s limited insurance policy was not enough to fully compensate all claimants/  As a result, the plaintiffs attorneys were trying to have South State and Seashore be on note hook too. Factually, South State needed more trucks because they only own a few in their fleet for hauling their own materials and equipment.  South State then contacted their ‘other’ company, Seashore, to get more trucks to work on this locations.  Because Seashore regularly does not have enough trucks in its own fleet for this and all the other jobs they are working on at the same time it reach out to all the local ‘for hire’ independent contractors who own tractor/trailor or dump trucks. This process is a regular practice for these two companies.


Standard of Review by the appellate division and the Burden of Proof at the summary judgement stage.

We review a grant of summary judgment de novo, applying the same standard used by the trial court. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012) (citing Henry v. N.J. Dep’t of Human Servs., 204 N.J. 320, 330 (2010)). Summary judgment is proper where there is no genuine issue of material fact, considering the evidence in the light most favorable to the non-moving party, and the moving party is entitled to prevail as a matter of law. Id. at 41 (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)); R. 4:46-2(c). Under this standard, “a court should deny a summary judgment motion only where the party opposing the motion has come forward with evidence that creates a ‘genuine issue as to any material fact challenged.'” Brill, 142 N.J. at 529 (quoting R. 4:46-2). “Where the party opposing summary judgment points only to disputed issues of fact that are ‘of an insubstantial nature,’ the proper disposition is summary judgment.” Ibid. (quoting Judson v. Peoples Bank & Tr. Co., 17 N.J. 67, 75 (1954)).

“When no issue of fact exists, and only a question of law remains, [the appellate court] affords no special deference to the legal determinations of the trial court.” Cypress Point Condo. Ass’n v. Adria Towers, LLC, 226 N.J. 403, 415 (2016) (citing Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). However, “[p]urely legal questions . . . are questions of law particularly suited for summary judgment.” Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 555 (2015) (citation omitted). “If a case involves no material factual disputes, the court disposes of it as a matter of law by rendering judgment in favor of the moving or non-moving party on the issue of liability or damages or both.” Brill, 142 N.J. at 537 (citations omitted).

The trial judge’s factual findings are “binding on appeal when supported by adequate, substantial and credible evidence.” Rova Farms Resort v. Inv’rs Ins. Co., 65 N.J. 474, 484 (1974) (citing N.J. Tpk. Auth. v. Sisselman, 106 N.J. Super. 358 (App. Div. 1969)). Such factual findings are reviewed deferentially and left undisturbed unless “manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.” Ibid.

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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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