INTERESTED UNDERWRITERS AT LLOYDS OF LONDON as subrogee of AJL TRANSPORT, et al. v. TRENTON MACK SALES & SERVICE, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5607-04T25607-04T2

INTERESTED UNDERWRITERS AT

LLOYDS OF LONDON as subrogee

of AJL TRANSPORT and ALFRED

J. LEONCINI and AJL TRANSPORT,

Plaintiffs-Appellants,

v.

TRENTON MACK SALES & SERVICE,

INC.,

Defendant-Respondent.

________________________________

 

Argued May 10, 2006 - Decided June 5, 2006

Before Judges Grall and King.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, MER-L-1652-02.

Ian Stuart argued the cause for appellants (Mr. Stuart, on the brief).

Kelly R. Dalmass argued the cause for respondent (Borrelle Search Dalmass Little & Bigley, attorneys; Ms. Dalmass, on the brief).

PER CURIAM

Plaintiffs Lloyds of London and Alfred J. Leoncini appeal from a grant of summary judgment in favor of defendant Trenton Mack Sales & Service, Inc. (Trenton Mack). This is, in part, a subrogation action to recover insurance proceeds in the sum of $22,916; Leoncini claims part of this sum for damages for his unreimbursed loss. The tractor unit had been driven at least 1.3 million miles before the fire causing the loss here claimed.

The tractor's engine caught fire on August 9, 2001, about three hours after Leoncini drove away from Trenton Mack after repairs. The tractor was brought in for repairs because the engine had seized and would not operate. Among other problems, Trenton Mack found cracked cylinder heads and coolant leaks. Pursuant to instructions from the owner, it put water and "stop leak" in the coolant system, replaced the water pump, changed the fuel lines and nozzles and purged water from the cylinders. Trenton Mack then reassembled the engine and charged the batteries.

The precise question before us is whether plaintiff's expert-witness report was adequate to raise a genuine issue of material fact as to the cause of the fire. According to Daniel Seely, plaintiff's expert, one of the oil lines failed, causing the fire. Seely expressed his opinion this way in his certified report relied upon in resisting the motion for summary judgment.

It is the opinion of this organization that the fire originates within the engine compartment of the subject vehicle. All evidence indicates that one of the oil lines failed, which allowed oil to discharge throughout the engine compartment and ultimately ignite off a hot component of the engine, such as a turbo charger. It appears that Trenton Mack replaced the gaskets including the valve cover gaskets. In order to complete this procedure, the oil line to the turbo charger may have had to be removed and reinstalled. Therefore, the responsibility for the damage to the vehicle should lie with Trenton Mack, located at 5 Crossroads Drive, Trenton, New Jersey 08691. The work performed in the engine compartment either caused damage to the oil line, or they failed to properly resecure the oil line after the gaskets were replaced.

With respect to whether Seely's opinion was sufficient to carry the day and defeat the defendant's motion for summary judgment, Judge Koenig said:

THE COURT: The Court reviewed Mr. Seely's report in Exhibit C. And I -- here I agree with the defendant. The report, on its face, relies on conjecture and speculation. I can speculate as well as he can in some respects. A tractor-trailer is subject to many stresses, vibrations, starts and stops over a long period of time, much heat and expansion in the engine compartment, heat from the environment, cold, it sits freezing cold from time to time. Diesel engines are notoriously hard to start on cold days. And all these things cause the parts to expand and contract. And I know that. That's -- I know that from my experience. And I can speculate, I've worked around jet aircrafts, I've worked around diesel trucks, I was a truck driver long before I was a lawyer. But I'm not going to make my ruling based on that. I don't know what happened here; I just know there was a fire. But there are a lot of things going on in that engine compartment that didn't happen at Trenton Mack over the years. And the fact that it happened three hours -- that it was driven three hours after, and I'm going to say there were three operating hours after leaving Trenton Mack, however long after Trenton Mack he left, is, in my opinion, a fact that's indisputable. But it's certainly not a fact that proves the opinion of Mr. Seely.

The report relies on conjecture and speculations. The statement that the oil line may, anything is possible, may have been removed and replaced during service. In the face of Trenton Mack's statement of fact, it did not happen. And that that change of the line may have led to the vehicle fire, it may have led to the failure of the line to the turbo charger, is hardly the type of certainty and fact based scrutiny that the Court expects to see in an expert opinion. Anything might have happened.

Various witnesses have testified that no change was made and that Trenton Mack never even worked on the part of the vehicle, the left side of the engine. Nor, more importantly, did they charge for any such work where the fire originated.

As such, the opinion offered by the plaintiff, I believe, is an impermissible net opinion. Now, we can speculate on it from now until the cows come home, and I'm sure the owner of the truck firmly believes that whatever happened in that engine compartment at Trenton Mack led to this fire. But that's not the kind of testimony that a jury could rely on and I wouldn't permit it. He's not entitled to have his opinion go to the jury.

I recognize the persuasive nature of the proximity in time. The coincidental nature. But that's not proof. I forget, do we know -- this was not a new truck this had --

MS. DALMASS [defense counsel]: It had approximately --

THE COURT: I forget.

MS. DALMASS: -- I believe two million miles.

THE COURT: Right.

MS. DALMASS: Or a million -- 1,600,000 miles.

THE COURT: These trucks are built to last. I mean, you know, so that's not the end of the road for that truck necessarily just because it's got -- it goes over two million miles. But it's not a new truck.

In a case where the subject matter is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to the fact and issue without testimony of an expert, the testimony of an expert is both appropriate and necessary. Butler v. Acme Markets, Inc., 89 N.J. 270 at page 283, a 1982 case.

New Jersey courts have also required expert testimony to prove that an auto repair shop did something wrong or failed to do a necessary repair in cases where such negligence is alleged. Jiries v. BP Oil, 294 N.J. Super. 225 (Law Div. 1996).

Here the Court finds that plaintiff's case will not go forward without an expert report. Plaintiff's proposed expert report is inadmissible as a net opinion. And the expert testimony is necessary to show the defendant deviated from the standard of care. As such, the motion for summary judgment must be granted. However, even giving, even if the expert report were to be received, the expert's report only says the line may have been moved, may have had to be moved in order to work on the valve covers and replace the gaskets. And if pigs had wings, they could fly, but they don't. And in this case, I don't think that testimony is sufficient; it wouldn't reach the jury. And without that testimony, that -- you know, the fact that somebody worked under the engine bonnet, the fact that somebody lifted the cab off and got down in that engine in and of itself is not enough to convince me that it would -- that Trenton Mack caused this fire and that that evidence should go to the jury and permit the jury to speculate. It would invite the jury to speculate, be unjust and accordingly motion for summary judgment is granted.

We repeat: Seely reviewed the work order descriptions and concluded that "the oil line to the turbo charger may have had to be removed and reinstalled" in the course of that work. There is no proof that defendant's employees removed, worked on, or damaged the allegedly failed lines. We agree with Judge Koenig that Seely's affidavit was mere speculation as to the cause of the fire. "May" is not enough; "probability or a reasonable degree of certainty" is required in fire causation cases resting on expert opinion. Scully v. Fitzgerald, 179 N.J. 114, 128 (2004).

Our canvas of this record convinces us that we can only speculate as to the cause of the fire as attributable to the negligence of Trenton Mack. There is no proof it worked on the parts attributed to causing the fire in the engine suggested in this record. The opinion does not exclude the use and maintenance of this tractor by the owner. We agree with Judge Koenig that a guess on causative fault by Trenton Mack is not good enough to take the case to a jury.

As Justice Albin said recently in Scully v. Fitzgerald:

Defendant also argues that the Appellate Division erred by relying on the fire chief's opinion that a cigarette started the fire because that opinion was not based on a reasonable certainty. We agree. The fire chief was able to trace the origin of the fire to the storage area. He ruled out as potential causes the air conditioning units, lawn mower, snow blower, outside electrical light, electrical outlet, and mulch. He also ruled out arson or other foul play. When asked at deposition to give the most probable cause of the fire, the fire chief answered that, as a result of his investigation, his "best guess" was that a discarded cigarette ignited the fire. A competent opinion addressing the cause of a fire must be framed in terms of probability or a reasonable degree of certainty. See generally, Jay M. Zitter, Annotation, Admissibility of Expert and Opinion Evidence as to Cause or Origin of Fire-Modern Civil Cases, 84 A.L.R. 5th 69 (2000) (observing that courts have admitted expert evidence regarding cause of fire where "the expert talked about probabilities and not just possibilities"). The fire chief's opinion is inadmissible because it was founded on a mere possibility that a discarded cigarette or match started the fire accidentally.

[179 N.J. at 128 (emphasis supplied).]

Nor is the doctrine of res ipsa loquitur customarily applied in fire causation cases, especially where the defendant is not in exclusive control. Menth v. Breeze Corp., Inc., 4 N.J. 428, 435-37 (1950); Hamrah v. Clements, 3 N.J. 285, 288-89 (1949).

As the time-honored doctrine states, negligence is never presumed; it must be proved. And it cannot be proved by guess work or speculation.

 
Affirmed.

(continued)

(continued)

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A-5607-04T2

June 5, 2006