ROBERT CARBO v. ALLSTATE PROPERTY & CASUALTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6281-09T3

ROBERT CARBO,

Plaintiff-Appellant,

v.

ALLSTATE PROPERTY & CASUALTY,

Defendant-Respondent.
________________________________

December 19, 2011

Submitted December 12, 2011 - Decided

Before Judges Sabatino and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. DC-2450-10.

Robert Carbo, appellant pro se.

Marks, O'Neill, O'Brien & Courtney, P.C., attorneys for respondent (Philip J. Degnan, on the brief).

PER CURIAM

Plaintiff Robert Carbo appeals from a judgment of no cause of action in favor of defendant Allstate Insurance Company (Allstate) and a subsequent order awarding Allstate attorney's fees and expenses. We affirm.

In August 2009, plaintiff filed an insurance claim with Allstate asserting that he had been "carjacked" in Philadelphia on August 8, 2009. Plaintiff alleged that after returning to his car from using the bathroom at a nearby restaurant, an unknown person ordered him from his vehicle and then drove off with it. Plaintiff contended that he called 9-1-1, flagged down passing police officers, and eventually found the car five miles away in damaged condition.

Allstate investigated the claim, deposed plaintiff, determined that the claim was fraudulent, and declined to pay. In a letter dated September 25, 2009, Allstate explained:

We are providing you with this disclaimer because during the course of the investigation, and through statements made to Allstate . . . and its attorney, it has been determined that material misrepresentations and/or concealments were made, and the evidence supports the fact your vehicle was not stolen as reported. You have acknowledged completing the Affidavit of Vehicle Theft that you submitted to Allstate. You provided contradictory testimony during your Examination Under Oath regarding the circumstances surrounding the loss of your 2006 Cadillac.

On February 16, 2010, plaintiff filed a complaint against Allstate in the Special Civil Part demanding $15,000 in damages. Allstate answered and counterclaimed that plaintiff had violated the New Jersey Fraud Prevention Act (the Act), N.J.S.A. 17:33A-1 to -34, and committed common law fraud. Allstate sought treble and compensatory damages, investigation expenses, costs of suit, attorneys' fees, and a declaration that plaintiff's policy was void ab initio.

Judge Evan H. C. Crook conducted a three-day jury trial on June 21, 22, and 23, 2010. Plaintiff represented himself and testified on his own behalf. He called two fact witnesses, a work associate and the Allstate claims investigator who handled plaintiff's claim. Allstate called no witnesses.

Plaintiff produced no police records confirming that he was carjacked or that he filed a stolen vehicle report. In his testimony, plaintiff could not identify the restaurant where he stopped to use the bathroom. He testified that he used his cell phone to call 9-1-1 and produced his cell phone records; however, the records did not reflect any 9-1-1 calls at the time of the alleged theft.1

During cross-examination, plaintiff admitted that he had provided false information to Allstate during the claim investigation. The following exchange occurred:

DEFENDANT'S ATTORNEY: All right. Would you agree with me, Mr. Carbo, that you have an obligation to cooperate with Allstate with regard to its investigation of your claim?

PLAINTIFF: To an extent, yes.

DEFENDANT'S ATTORNEY: Would you agree with me, Mr. Carbo, that you have an obligation to be truthful with Allstate with regard to their investigation, your claim, and the information you provide to Allstate?

PLAINTIFF: To an extent, yes.

DEFENDANT'S ATTORNEY: Okay. So, to some extent you feel like you don't have to be truthful to Allstate?

PLAINTIFF: Yes.

DEFENDANT'S ATTORNEY: And you testified earlier that you committed some small degree of fraud with regard to the information you provide to Allstate, right?

PLAINTIFF: Yes.

On June 23, 2010, the jury returned a verdict of no cause of action in favor of Allstate and found plaintiff violated the Act. Allstate then moved for attorney's fees and expenses.2 Judge Crook heard oral argument, considered opposition filed by plaintiff, and on August 20, 2010, ordered plaintiff to pay $17,838.30. The judge accompanied the order with a written opinion, explaining that Allstate sought "$16,923.00 for legal fees and expenses from 8/26/09 to 6/29/10, $730.30 for copies of a deposition transcript[,] and $185.00 for investigative services." The judge explained the law and concluded:

[P]ursuant to N.J.S.A. 17:33A-7(a), the [d]efendant is entitled to recover "reasonable investigation expenses, costs of suit and attorneys fees." The [c]ourt finds that [Allstate's] investigation expenses and costs are reasonable. Furthermore, the [c]ourt finds that the detailed time sheet submitted in support of [the] certification shows reasonable charges for the work completed by [Allstate's attorney] in the defense of this matter.

On August 27, 2010, plaintiff filed a notice of appeal from the June 23, 2010 defense judgment. In September 2010, he filed two amended notices of appeal, indicating in the latter that he was appealing from both the judgment and the August 20, 2010 order awarding fees and expenses.

On appeal, plaintiff has struggled to inform the Court and Allstate3 of the issues being raised and to present coherent arguments in their support. On June 23, 2011, we allowed plaintiff to submit a revised brief with the following comments:

This is appellant's third try to file a brief that conforms to the [New Jersey Court Rules]. The panel will consider the brief such as it is, and disregard any argument based on facts outside the record, or not supported by legal authority.

We observe that plaintiff's brief and reply brief do not use point headings, R. 2:6-2(a)(5); make inadequate or no references to the record, R. 2:6-8; and provide no legal authority, R. 2:6-9. In several places, plaintiff asks us to conduct independent investigation of the record (more than 650 pages) and research the law. This we will not do.

We are mindful of plaintiff's pro se status. However, he has a "responsibility to refer us to specific parts of the record to support [his] argument [and] may not discharge that duty by inviting us to search through the record ourselves." Spinks v. Twp. of Clinton, 402 N.J. Super. 465, 474-75 (App. Div. 2008) (citing State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977)) (request to "scour sixty-one pages of plaintiffs' appendix, as well as computer disks[,] without informing [the court] of what particular pages supposedly support their argument"). Further, plaintiff "may not escape [his] initial obligation to justify [his] positions by specific reference to legal authority. Paucity of such reference suggests a like paucity of authority helpful to [him]." Hild, supra, 148 N.J. Super. at 296; see also R. 2:6-9 (providing for suppression of briefs and imposition of costs on a party whose appendix or brief "is so inadequate that justice cannot be done without the court's independent examination of the record or research of the law").

Plaintiff asks us "to overturn the verdict." He asserts that "[t]he standard of proof has only been met by doubts and probabilities and the preponderance of evidence provided [was] falsified." We also discern that he disputes various evidentiary rulings by the trial judge.

"[T]here is a presumption of correctness in jury verdicts." Romano v. Galaxy Toyota, 399 N.J. Super. 470, 477 (App. Div.) (citing Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977)), certif. denied, 196 N.J. 344 (2008). They are "set aside in favor of new trials only with great reluctance, and only in cases of clear injustice." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). The judgment of the jury as fact-finder "is entitled to very considerable respect." Baxter, supra, 74 N.J. at 597-98. We consider the verdict "in the light most favorable to the prevailing party." Crego v. Carp, 295 N.J. Super. 565, 578 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997).

Here, we conclude that the jury's verdict is sound, particularly in light of the gaps and inconsistencies in plaintiff's trial proofs and his sworn admission that he was not completely truthful with his insurer. We also discern no abuse of discretion in the judge's evidentiary rulings. Further, after review of the award of attorney's fees pursuant to N.J.S.A. 17:33A-7(a), we affirm substantially for the reasons stated in Judge Crook's well-written August 20, 2010 opinion. In sum, plaintiff's lack of legal authority and coherent or persuasive argument convinces us that his assertions are without merit to warrant extended discussion in a written opinion.4 R. 2:11-3(e)(1)(E).

A

1 Prior to trial, plaintiff wrote a letter to the Department of Banking and Insurance stating that Allstate was "under its own false idea that my cell phone was used to contact emergency services." By letter dated April 10, 2010, the Department responded, indicating that it found no merit in plaintiff's allegations of car theft or improper conduct on Allstate's part.

2 Allstate's attorney submitted a certification of his time and expenses, which was construed as a motion for attorney's fees.

3 In an April 19, 2011 letter to the Court, Allstate's attorney justifiably complained:

[Plaintiff] has failed to comply with the Court's March 15, 2011 directive to correct the deficiencies in his brief. More specifically, [he] has failed to set forth point headings to be argued, failed to identify what legal issue he is presenting on appeal, failed to present an adequate Statement of Facts with transcript references, failed to set forth a coherent Legal Argument and has not included all relevant documents essential for the proper consideration of the issues.

The letter concluded, "Quite frankly, on this appeal I simply do not know what plaintiff is arguing."

4 In his case information statement, plaintiff listed proposed issues for appeal regarding N.J.R.E. 802, N.J.R.E. 403, and N.J.R.E. 603. These issues were not briefed and we deem them waived. Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived.").