LORRAINE C. KLAUDER v. GERARDO ARRIETA-SANCHEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5425-08T35425-08T3

LORRAINE C. KLAUDER and

WALTER N. KLAUDER,

Plaintiffs-Appellants,

v.

GERARDO ARRIETA-SANCHEZ and

ENRIQUE MORALES,

Defendants-Respondents.

_______________________________

 

Argued March 16, 2010 - Decided

Before Judges Skillman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-487-07.

John D. Borbi argued the cause for appellants (Bafundo, Porter, Borbi & Clancy, attorneys; Mr. Borbi, on the brief).

Anthony Young argued the cause for respondents (Parker Young & Antinoff, LLC, attorneys; Mr. Young, on the brief).

PER CURIAM

This is a personal injury automobile negligence action. On May 13, 2004, plaintiff Lorraine Klauder, while operating an automobile owned by her husband Walter Klauder, was involved in an accident with a pickup truck owned by defendant Enrique Morales and operated by defendant Gerardo Arrieta-Sanchez in the Town of Hammonton. Plaintiff's automobile was insured by Allstate Insurance Company with a policy that contained the limitation-on-lawsuit threshold, N.J.S.A. 39:6A-8(a). Morales' pickup truck was registered and insured at the address of 11B Michigan Avenue, Lancaster, Pennsylvania, through the New Jersey Manufacturers Insurance Company (NJM) as a personal automobile with personal injury protection (PIP) benefits.

On February 20, 2007, plaintiff filed a complaint against Morales and Arrieta-Sanchez, seeking damages for injuries sustained in the automobile accident. On August 1, 2007, plaintiff served a demand for answers to uniform and supplemental interrogatories, together with a demand for production of documents, upon defendants. Plaintiff also served a notice to take both defendants' depositions on December 18, 2007. Although Arrieta-Sanchez appeared for his deposition, Morales did not. On January 29, 2008, plaintiff filed a motion seeking to strike defendants' limitation-on-lawsuit threshold defense for Morales' failure to provide answers to interrogatories and to appear for his deposition. Defense counsel opposed, asserting that he had only recently learned that Morales had moved to Costa Rica and had no intention of returning to the United States. Accordingly, counsel advised the court that a representative of NJM would answer Morales' interrogatories pursuant to Rule 4:17-4(a). On February 15, 2008, the trial court denied the motion without prejudice, directing defendants to produce a copy of the insurance policy covering the pickup truck, the application for the insurance policy, and NJM's underwriting file within thirty days of the date of order.

On March 28, 2008, plaintiff filed a motion again seeking to strike defendants' limitation-on-lawsuit threshold defense for failure of defendants to produce a copy of Morales' initial application for insurance for the pickup truck pursuant to the February 15, 2008 discovery order. The court denied the motion on April 11, 2008. On April 9, 2008, plaintiff filed a motion seeking to compel defendants to produce documents and to produce NJM's insurance adjuster for his or her deposition. On May 9, 2008, the court entered an order granting plaintiff's motion, compelling defendants to produce NJM's claim file, any statements taken by NJM's adjustor, and to produce for a deposition "the NJM employee with the most knowledge concerning [d]efendant Morales' insurance file."

In July 2008, plaintiff filed a motion seeking to strike defendants' answer for failure to produce NJM's claims file and a representative of the insurance company for his or her deposition. Defendants opposed, arguing that they had already produced NJM's underwriting file and the insurance company's "representative to talk about the [insurance] . . . policy, because the issue[] is whether it's insuring an automobile type vehicle or commercial vehicle, and we produced that information." On August 15, 2008, the court denied the motion to strike but ordered defendants to produce NJM's insurance adjuster for her deposition, and any statements NJM obtained pertaining to the accident. On September 11, 2008, plaintiff deposed NJM's insurance adjustor, Senior Claims Representative Patricia Holt. Ms. Holt confirmed that NJM never obtained a statement from Morales concerning the accident. The only statement obtained was from Arrieta-Sanchez.

On April 23, 2009, defendants filed a motion for summary judgment seeking to dismiss plaintiff's complaint for failure to suffer a qualifying injury under the limitation-on-lawsuit threshold. Plaintiff filed a cross-motion again seeking to strike the threshold defense. On May 28, 2009, the trial court entered an order supported by an oral decision granting defendants' motion, implicitly denying plaintiff's cross-motion. Plaintiff appeals from the February 15, April 11, and August 15, 2008 orders and the May 28, 2009 order, which expressly or implicitly denied her motion to strike the limitation-on-lawsuit threshold defense for failure of Morales to personally answer interrogatories and to appear for his discovery deposition.

On appeal, plaintiff argues that the trial court erroneously denied her motion to strike the limitation-on-lawsuit threshold defense when Morales failed to provide discovery "as to the day to day use of the pick-up truck involved in the accident," thus, permitting defendants to benefit from discovery violations by raising the threshold defense to plaintiff's complaint. Plaintiff contends she was entitled to inquire of Morales whether the pickup truck was used on a day-to-day basis for business purposes, contrary to the NJM declaration sheet that classified the vehicle as a personal motor vehicle insured with PIP benefits. Plaintiff asserts that she was entitled to seek this information from Morales to establish that the pickup truck was not an "automobile" as defined in the New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1 to -35, and as such, defendants would not have been entitled to raise the limitation-on-lawsuit threshold defense, citing Cheatham v. Unsatis. Claim and Judg. Fund Bd., 178 N.J. Super. 437, 42 (App. Div. 1981). However, as in the trial court, plaintiff does not challenge the court's determination that she failed to suffer a qualifying injury needed to vault the limitation-on-lawsuit threshold.

A trial court has discretion in formulating sanctions for discovery violations. Abtrax Pharms. v. Elkins-Sinn, 139 N.J. 499, 513 (1995). "As with all rules it is necessary that there be adequate provisions for the enforcement of the rules [regarding] discovery against those who fail or refuse to comply. Sanctions are peculiarly necessary in matters of discovery[,] and the power to invoke them is inherent in our courts." Ibid. (quoting Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 338 (1951)). Thus, a reviewing court grants substantial deference to a trial court's discovery ruling and will only reverse upon a finding of abuse of discretion capable of producing an unjust result. Id. at 517; Payton v. New Jersey Tpk. Auth., 148 N.J. 524, 559 (1997); Connolly v. Burger King Corp., 306 N.J. Super. 344, 349 (App. Div. 1997).

We have considered plaintiff's arguments against the record and applicable law. We conclude that the trial court did not abuse its discretion in denying plaintiff's motions seeking to strike the limitation-on-lawsuit threshold defense.

Plaintiff deposed Arrieta-Sanchez on December 18, 2007. Arrieta-Sanchez testified that on the day of the accident he had visited Morales at Morales' former residence in Medford, New Jersey. While there, Morales asked Arrieta-Sanchez if he would do him a favor by taking Morales' pickup truck and proceeding to Hammonton, New Jersey, to tow a vehicle owned by a mutual friend, Gilbert Navarro, to Lancaster, Pennsylvania. Arrieta-Sanchez agreed to perform the favor for Morales. After Arrieta-Sanchez drove to Hammonton and placed Navarro's van on the tow connection on the back of the pickup truck, he and Navarro proceeded toward Lancaster. After driving approximately ten minutes on Route 206, Arrieta-Sanchez crossed the center line and struck plaintiff's automobile.

When questioned whether he was familiar with Morales' operation of his roofing business, Arrieta-Sanchez answered that he was, having previously worked for Morales. Arrieta-Sanchez testified that Morales owned other van-type vehicles, which Morales used in his roofing business, and that the pickup truck Arrieta-Sanchez was operating on the day of the accident was used primarily by Morales for personal use. Arrieta-Sanchez acknowledged that occasionally Morales might drive the pickup truck to and from a work site, but once there, Morales would use one of the vans for business purposes.

We are satisfied that Arrieta-Sanchez's deposition testimony provided a sufficient basis for the trial court to have denied plaintiff's motions to strike the limitation-on-lawsuit threshold as a sanction for Morales' failure to appear for his deposition. Additionally, defendants provided NJM's underwriting file for Morales' insurance policy, and plaintiff deposed the claims adjuster. As to Morales not personally answering interrogatories, defendants provided answers to the interrogatories certified by NJM's insurance representative pursuant to Rule 4:17-4(a) ("[i]f a party is unavailable, the interrogatories may be answered by an agent or authorized representative, including a liability carrier who is conducting the defense, whose answers shall bind the party").

 
Affirmed.

Lorraine Klauder sues for personal injuries, and Walter Klauder sues per quod. For the balance of this opinion, the term "plaintiff" shall only refer to Lorraine Klauder.

Individuals "covered by the limitation-on-lawsuit threshold may not sue a tortfeasor for noneconomic damages unless they suffer a serious or permanent bodily injury, as defined in N.J.S.A. 39:6A-8(a)." Zabilowicz v. Kelsey, 200 N.J. 507, 510 (2009). However, "a New Jersey policyholder who chooses the lawsuit threshold may nonetheless sue for noneconomic damages if the tortfeasor is not a participant in this State's no-fault system and therefore is not insured for PIP benefits." Ibid.

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A-5425-08T3

August 18, 2010