AGIM KORTOCI v. CATHY A. NEWTON, JENNIFER NEWTON et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4839-03T24839-03T2

AGIM KORTOCI,

Plaintiff-Respondent,

v.

CATHY A. NEWTON, JENNIFER

NEWTON and ALLSTATE INSURANCE

COMPANY,

Defendants-Appellants.

 

Argued October 3, 2005 - Decided

Before Judges Kestin, Hoens and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5108-02.

Gregory J. Irwin argued the cause for appellants Cathy A. Newton and Jennifer Newton (Harwood Lloyd, attorneys; Mr. Irwin, of counsel; Paul E. Kiel, on the brief).

Joseph LaBarbiera argued the cause for respondent (LaBarbiera, Jones & Martinez, attorneys; Mr. LaBarbiera, of counsel; Richard LaBarbiera, on the brief).

Respondent Allstate Insurance Company did not file a brief.

PER CURIAM

Defendants Cathy A. Newton and Jennifer Newton appeal from the April 29, 2004 order of the Law Division entering judgment based upon a jury verdict against them and in favor of plaintiff Agim Kortoci and from the trial judge's April 2, 2004 order denying their motion for a new trial. We reverse and remand.

On March 28, 2001, plaintiff was involved in an automobile accident as a result of which he was injured. He asserts that he was driving in Fort Lee, and that he was approaching the George Washington Bridge, when his vehicle was struck in the rear. According to plaintiff, he first attended to his wife and his son, who were passengers in his car, to ascertain whether either of them had been injured. He then looked to see if his vehicle had been damaged and found that the rear bumper had been "moved" and the damage was "slight."

In addition, plaintiff testified that he got out of his car and spoke with a "skinny" lady with curly hair who was around thirty years old, and who had been driving the black Dodge four-by-four pickup truck that struck him. According to plaintiff, after he and the lady spoke briefly, she got into the truck and drove away. He testified that he wrote down the license plate number and that the police subsequently identified defendant, Cathy Newton, as the owner of that vehicle. At trial, plaintiff identified defendant Jennifer Newton, who is defendant Cathy Newton's daughter, as the driver who struck his car and who fled from the scene. Throughout discovery and at trial, Jennifer Newton denied that she struck plaintiff's vehicle. She denied that she was at the location or on the road where plaintiff said the accident took place. Although she admitted that her pick-up's front end was damaged, she explained that the damage had occurred in an earlier incident that she had not reported because no other vehicle was involved.

On appeal, defendants raise two arguments for our consideration. First, they assert that remarks made by plaintiff's attorney during his summation were so inflammatory and prejudicial that they were deprived of a fair trial. Second, they argue that the evidence relating to plaintiff's injuries was insufficient to comply with the verbal threshold, see Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. Because we find merit in defendants' assertions respecting the closing arguments by plaintiff's counsel, we reverse and remand this matter for a new trial. Although we need not therefore directly address defendants' argument concerning the verbal threshold, we are constrained to point out that, on remand, the matter will be governed by the Supreme Court's recent decisions respecting the proofs required for that purpose. See DiProspero v. Penn, 183 N.J. 477, 481 (2005); Serrano v. Serrano, 183 N.J. 508, 509-10 (2005).

Defendants' counsel objected twice during plaintiff's summation. Both objections were sustained. In addition, the judge offered a corrective instruction when sustaining the first objection and he directed the jury to disregard a part of plaintiff's remarks in response to the second objection. On appeal, defendants assert that the judge's responses were inadequate to cure the prejudice of these objected-to comments. Moreover, defendants point on appeal to other aspects of the summation to which they made no objection at trial, which requires us to evaluate them in accordance with the plain error rule. See R. 2:10-2.

Our review of the summation reveals that plaintiff's counsel repeatedly attacked Jennifer Newton's defense as "insulting" and "disgraceful." He denigrated her right to present any defense, telling the jury:

And it doesn't matter what her motives are. We can understand it that she didn't want to tell her mom those truths. But what I find disgraceful is the fact that she continues to deny it and continues dragging Mr. Kortoci through the legal system. She had an opportunity today to come clean. I was hopeful that she would. She continues to say that she had nothing to do with this.

Plaintiff's counsel also described defendants' expert as being "sleek" and "slick" and accused him of writing an opinion that was based not on truth but rather was motivated by "doing a good job for his client" in light of and in exchange for his fee. He denigrated defense counsel, accusing the two lawyers for the Newtons and Allstate of "work[ing] in conjunction" to "cover all [their] bets. Just give [plaintiff] nothing. Send him on his way. It makes it easy for them."

Plaintiff's counsel also inappropriately asked the jury to put themselves in plaintiff's shoes, commenting:

This is not a scam. This is a story about a gentleman who on March 28th, '01 was in the wrong place at the wrong time. And it wasn't only the injury that he has had to deal with but the mere insult. Can you imagine the feelings that Mr. Kortoci, after being rear-ended with his family in the car and to have someone speed away, could you imagine the rage that you'd have? I know absent the person speeding away I'd be agitated. Then they pull away. And then Mr. Kortoci thinks: I'm going to call the police. I'm going to get people involved. I'm going to get this thing taken care of. But it doesn't end there.

A phone call to the Newtons. They don't know anything. The daughter doesn't know anything. I remember sitting here after the testimony of Miss Newton and her daughter and a funny thought came into my head. I mean, the words hear no evil, see no evil. She doesn't know what happened. She doesn't know what happened. They're pointing their fingers this way. Defense counsel would like to point the fingers this way. And everybody's pointing at a different place. Everybody's trying to cover their bases here and it's not about covering bases. It's about a situation that Mr. Kortoci has to endure every day for the rest of his life.

The insult didn't end after a week. It didn't end after a month. It didn't end after a year. This thing just kept on going on and on. I mean, ladies and gentlemen, you saw my file on my desk and this is a small part of it. This thing has been going on and on and on.

When defendants' attorney objected, the trial judge advised the jury that they would be charged about evidence at the appropriate time. Counsel for plaintiff, however, after discussing the medical evidence, returned to his theme, saying:

But I will tell you that the limitations that he's placed forth are certainly serious. They're certainly significant. The doctor certainly felt that they were serious and significant. And no one had the right to take that away from him. No one did. Certainly not Miss Newton, especially in the fashion that it was done.

And once again I submit to you it's insult on top of injury. And that could rot you inside, it could, and it could eat at you every day, every week.

Defendant's objection to the final statement quoted was sustained and the judge advised the jury to disregard that final comment.

Plaintiff's counsel also asked the jury to conclude, simply because his client had been injured and had been treated, that defendant Jennifer Newton must be responsible. At the same time, he repeatedly referred to plaintiff and to his witnesses, including his expert witness, as "honest" and as not "trying to hide anything from you," implying that defendants and their witnesses were dishonest or were engaged in an effort to conceal the truth.

Taken as a whole, we find these statements to be improper and inflammatory. While we recognize the broad latitude afforded to counsel in summations, where the attorney engages in misconduct which has caused the trial to be unfair, a new trial is warranted. See Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 37 (App. Div. 1998). Where, as here, the summation had the capacity to unfairly affect the outcome of the trial or to otherwise deprive a party of a fair trial, a new trial is appropriate. See Krohn v. N.J. Full Ins. Underwriters Ass'n, 316 N.J. Super. 477, 483 (App. Div. 1998), certif. denied, 158 N.J. 74 (1999); Demers v. Snyder, 282 N.J. Super. 50, 58 (App. Div. 1995).

In particular, the remarks denigrated the witnesses and the parties, see Geler v. Akawie, 358 N.J. Super. 437, 467 (App. Div.), certif. denied, 177 N.J. 223 (2003), implied that defendants' expert's opinion was not based on the record but instead on the size of his fee, see State v. Marquez, 277 N.J. Super. 162, 172 (App. Div. 1994), certif. denied, 141 N.J. 99 (1995), and accused the defendant of "refusing to come clean" see Henker v. Preybylowski, 216 N.J. Super. 513, 518 (App. Div. 1987), while repeatedly asserting that the plaintiff and his witnesses were honest and that the plaintiff was entitled to a recovery merely because he had been injured and had accused defendant Jennifer Newton of being responsible.

Although viewed individually, any of the remarks might pass muster, collectively they deprived defendants of a fair trial, requiring that we reverse the verdict and remand this matter for a new trial.

 
Reversed and remanded.

Defendant Allstate Insurance Company, which was plaintiff's automobile insurer, was named as a party because Jennifer Newton denied that she was involved in the accident. Plaintiff's theory was that Allstate would be liable to him based on his uninsured motorist coverage if the jury believed Newton. Allstate, which participated in the trial that resulted in the verdict adverse to the Newtons, also filed a notice of appeal. Allstate, however, has not filed a brief and did not participate in the appeal.

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A-4839-03T2

December 8, 2005