JHONG SIK KIM v. DAVID L. FINGEROTH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JHONG SIK KIM,

Plaintiff-Respondent,

v.

DAVID L. FINGEROTH,

Defendant-Appellant.

July 20, 2015

Before Judges Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9703-11.

Viscomi & Lyons, attorneys for appellant (Patricia R. Lyons, on the brief).

Fishman McIntyre Levine Samansky, P.C., attorneys for respondent (Yoonki Kim, on the brief).

PER CURIAM

Following a jury verdict in favor of plaintiff Jhong Sik Kim in this automobile negligence case, defendant David L. Fingeroth appeals from an April 11, 2014 Law Division order denying his motion for a new trial. We reverse and remand.

We discern the following facts from the record. On October 13, 2010, plaintiff was traveling southbound on Route 17 in heavy "stop and go" traffic. Plaintiff was "almost completely stopped" when he heard a loud sound and saw defendant's vehicle strike the rear of his car. According to plaintiff, the accident only involved the two cars.

In contrast, defendant testified that a third vehicle struck his car from behind "just as [he] was taking [his] foot off [the] brake and getting ready to put [his] foot on the accelerator." According to defendant, after the impact he checked on plaintiff, and then had a brief conversation with the third driver who said, "I hit you, I'm sorry." However, defendant asserted that the third driver left the scene of the accident shortly thereafter. Defendant was only able to give a partial description of the third driver, his vehicle, and its license plate number.

Detective Michael Venezia prepared an accident report, which generally reflected plaintiff's and defendant's differing accounts. However, defendant's description of the third driver at trial included some details not included in the report, and Detective Venezia testified that, if defendant had reported the details to him, he would have recorded them in his report.

After the accident, plaintiff submitted an uninsured-motorist (UM) claim to his insurance carrier on the theory that the third driver was effectively uninsured.1 Before the trial in the Law Division, plaintiff settled his UM claim for $15,000.2

Plaintiff filed his Law Division complaint on November 23, 2011, alleging, in pertinent part, that defendant and "John Does 1-5" negligently operated their motor vehicles, causing severe and permanent injuries to plaintiff. Prior to trial, the parties entered into a settlement agreement, stipulating to recoverable damages of "a low of [$0] and [a] high of [$]75,000[,]" the final amount "[d]epending on how the jury rules in terms of percentages, that will dictate how much of the [$]75,000, if any, [p]laintiff will receive."

At trial, plaintiff's counsel briefly mentioned insurance in his opening argument, stating, "At that point maybe they exchanged insurance information, it's unclear." He also stated that the front of defendant's vehicle was, "completely crunched in[,]" while the back only had a "couple of nicks in the fender." Defendant requested a sidebar to address the two statements, and the court found that the reference to insurance could be ignored as inconsequential.

Defendant also reiterated his request for the jury to be given a settling defendant charge, and to have the third driver added to the verdict sheet. The trial court previously denied the request in chambers, and denied it again on the record. The court reasoned that the insurance payout had been a contractual arrangement rather than a settlement, and that "a John Doe does not create a party." The court also found that the involvement of a third vehicle would break proximate causation, absolving defendant of negligence altogether. Therefore, the court declined to charge defendant's theory of comparative negligence.

In closing arguments, plaintiff's counsel accused defendant of fabricating the third driver, lying under oath, and taking advantage of plaintiff as "somebody who's elderly, . . . somebody who is frail, and . . . [s]omebody who doesn't speak English." Plaintiff's counsel reiterated that the damage to defendant's car was inconsistent with his account of the accident. Additionally, referring to photos of defendant's vehicle, plaintiff's counsel stated, "[D]efendant's attorney said the only credible proof is the physical evidence. And then she hid the physical evidence, she didn't show it to you."

After closing arguments, defendant moved for a mistrial, citing alleged improper comments in plaintiff's opening statement regarding damage to the vehicles, and attacks on the character of defendant and defendant's counsel in plaintiff's closing argument. The court denied the motion, finding that none of the comments were outrageous or improper.

The court only submitted two questions to the jury: (1) whether defendant was negligent; and (2) whether defendant's negligence was a proximate cause of the accident. The jury answered both questions in the affirmative, thus returning a verdict in favor of plaintiff. Pursuant to the parties' settlement agreement, the trial court entered final judgment against defendant in the amount of $75,000.

Defendant moved for a new trial, arguing that the court erred by excluding the driver of the third vehicle from the verdict sheet and declining to give a settling-defendant charge. Defendant also argued the court should have allowed cross-examination of plaintiff regarding his UM claim. The trial court denied defendant's motion, finding that "[t]he jury had the opportunity to pass on the issue of proximate cause, which was a legitimate factual dispute within the trial. It did so and answered the questions in plaintiff's favor."

On appeal, defendant argues the trial court erred in failing to include the phantom driver on the verdict sheet and limiting cross-examination regarding plaintiff's UM claim. Defendant also argues that the court erred in denying his motion for a new trial on the basis of plaintiff's counsel's references to automobile insurance and damage to the vehicles, as well as plaintiff's counsel's personal attacks on defendant and his attorney.

II.

We only overturn a jury verdict where, viewing the evidence in the light most favorable to the opposing party, there was a clear miscarriage of justice. Caldwell v. Haynes, 136 N.J. 422, 431-32 (1994). However, appropriate and proper jury charges are essential to a fair trial, and an error in the jury charge warrants a new trial if correct instructions might have changed the verdict. Velazquez v. Portadin, 163 N.J. 677, 688 (2000).

The Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to 5.3 (the "Act") provides that a defendant is only responsible for the portion of the verdict corresponding to his or her own percentage of fault, provided that the portion is less than sixty percent. N.J.S.A. 2A:15-5.3. Any defendant sixty percent or more responsible is jointly and severally liable for the full damages. Ibid. A defendant may seek apportionment regardless of whether claims against other defendants were settled out of court. Cartel Capital Corp. v. Fireco of N.J., 81 N.J. 548, 569 (1980).

In Cockerline v. Menendez, 411 N.J. Super. 596, 617 (App. Div.), certif. denied, 201 N.J. 499 (2010), we considered whether the defendant in an automobile accident was entitled to apportionment against two phantom drivers that fled the scene. There, the plaintiff also received a settlement of a UM claim based upon the negligence of the drivers of the two phantom vehicles. Id. at 618.

Despite the fact that the phantom vehicles were only named as fictitious parties, we concluded that the defendant was entitled to apportionment. Id. at 619. UM coverage is intended "'to make the victim whole, but not provide a windfall or to allow double recovery[.]'" Ibid. (quoting Riccio v. Prudential Prop. & Cas. Ins. Co., 108 N.J. 493, 504 (1987)). In Cockerline, refusing to allow apportionment with the fictitious defendants resulted in double recovery, failed to advance the purpose of UM coverage, and frustrated the purposes of the Act. Ibid.

Plaintiff cites to Town of Kearny v. Brandt, 214 N.J. 76, 101 (2013), for the proposition that a defendant cannot seek apportionment from fictitious parties. Kearny, however, merely notes our holding in Bencivenga v. J.J.A.M.M., Inc., 258 N.J. Super. 399 (App. Div.), certif. denied, 130 N.J. 598 (1992).3

In Bencivenga, the plaintiff was out at a club when another patron assaulted him. Id. at 404. The club's bouncers declined to call police or medical rescue, and tossed the plaintiff out onto the street. Ibid. Evidence suggested that the bouncers knew the assailant, but the club never attempted to identify him. Id. at 410. The plaintiff sued the club for negligence, and added the intentional tortfeasor as a fictitious party. Id. at 405.

We considered whether the Act required apportionment of fault between the negligent club and the unidentified patron. Id. at 406. We reasoned that: (1) the plain language of the Act only required apportionment among non-fictitious named parties; and (2) policy favored the plaintiff, as the club had the greater ability and incentive to investigate and identify the unknown party. Id. at 409-10. Accordingly, we concluded the Act precluded apportionment with the fictitious the party in that case. Id. at 411.

Clearly, under Cockerline, the mere fact that a co-defendant is never identified and remains a fictitious party does not bar apportionment as a matter of law. Accordingly, we look to the underlying reasoning to reconcile Cockerline with Bencivenga. Notably, in Cockerline, equity favored the defendant, as the plaintiff was able to obtain a partial recovery through UM insurance, and a lack of apportionment resulted in double recovery. In contrast, equity favored the plaintiff in Bencivenga, as the defendant was better situated to pursue the unidentified assailant, and as the plaintiff was not protected by comparable state-mandated insurance.

Here, plaintiff effectively recovered for the negligence of the third driver through his UM coverage, and a lack of apportionment will result in double-recovery.4 Additionally, defendant was arguably in no better position to identify the third driver than plaintiff. Equity does not favor barring defendant from apportionment on the grounds that the third driver was never identified. Accordingly, this case is analogous to Cockerline, and the court should not have precluded defendant from seeking apportionment on the grounds that the third driver was a fictitious party.5

The trial court also reasoned that the question of proximate causation adequately addressed the existence of the third driver. We disagree.

First, defendant's negligence can be a proximate cause of the accident whether or not the jury believed in the intervention of the third driver. See, e.g., Dunn v. Praiss, 139 N.J. 564, 578-79 (1995) (concluding breach of contract and negligence by different parties may both be the proximate cause of plaintiff's injury). In particular, defendant could have been found negligent for failing to maintain a safe following distance. See N.J.S.A. 39:4-89; Dolson v. Anastasia, 55 N.J. 2, 10 (1969). Therefore, the jury's finding that defendant was a proximate cause of the accident would not preclude a finding that the third driver was also a proximate cause of the accident.

Second, defendant was entitled to submit alternative theories. As discussed, the jury could have found both defendant and the third driver liable for the accident. A defendant who has attempted to prove alternate defenses need not choose which one will go to the jury, as long as there is sufficient evidence as to both. See Caputo v. Nice-Pak Prods., Inc., 300 N.J. Super. 498, 504 (App. Div.), certif. denied, 151 N.J. 463 (1997). Moreover, a party's theories need not be consistent so long as the jury does not credit two inconsistent theories. Cnty. of Essex v. First Union Nat'l Bank, 373 N.J. Super. 543, 556 (App. Div. 2004), aff'd, 186 N.J. 46 (2006).

Here, defendant's primary defense was that he was completely stopped when the third driver pushed him into plaintiff. However, this defense should not have precluded defendant from arguing, alternatively, that even if the jury found that defendant was not fully stopped at the time of the collision, the third driver was a substantial contributing factor to plaintiff's damages.

Properly including the third driver on the verdict sheet clearly could have produced a different result, as the jury's verdict here did not preclude the third driver's existence or liability. Accordingly, the error was reversible, and we must remand for a new trial. Velazquez, supra, 163 N.J. at 688.

At retrial, the court should give appropriate instructions explaining that the jury must determine whether or not the third driver existed, whether he was negligent, and whether his negligence was a proximate cause of the accident. If so, the jury must further apportion fault with defendant. However, the court should not address the third driver as a settling defendant, as it properly excluded the UM claim from the trial record.6

As we reverse and remand for a new trial based upon the trial court's failure to allow the jury to consider the possible liability of the third driver, we decline to address defendant's remaining arguments.

Reversed and remanded for a new trial. We do not retain jurisdiction.

1 N.J.S.A. 17:28-1.1a(2) mandates the inclusion of UM coverage in all motor vehicle liability policies issued in this state, and requires coverage for "payment of all or part of the sums which the insured or his [or her] legal representative shall be legally entitled to recover as damages from the operator of an uninsured motor vehicle, or hit and run motor vehicle[.]"

2 The existence of the UM claim and the resulting settlement were not disclosed to the jury at trial.

3 Plaintiff also cites to Higgins v. Owens-Corning Fiberglas Corp., 282 N.J. Super. 600 (App. Div. 1995). That case is inapposite, as there the defendant asbestos manufacturer sought apportionment with a known third-party that was not a named defendant, and as the trial court improperly informed the jury that the third-party was an asbestos manufacturer that had settled with the plaintiff before trial. Id. at 609.

4 Plaintiff argues that he is entitled to the "windfall" under Green v. Gen. Motors Corp., 310 N.J. Super. 507 (App. Div.), certif. denied, 156 N.J. 381 (1998). However, that case is inapposite, as the double recovery there resulted from the defendant's failure to timely pursue contribution. Id. at 547.

5 Plaintiff also argues that the "John Doe" parties named in his complaint were not intended to refer to the third driver, and that he has consistently maintained that the third driver does not exist. Plaintiff's argument is severely undermined by his successful UM claim and the lack of involvement of any other motorists. Under these circumstances, defendant reasonably relied on the assumption that the third driver was one of the fictitious parties. Accordingly, we reject this argument without further discussion. R. 2:11-3(e)(1)(E).

6 We discern no merit to defendant's argument that he should have been permitted to cross-examine plaintiff regarding the insurance claim. To the extent that the claim is a settlement, the fact of the settlement is neither evidence of, nor an admission to, the liability of the third driver. Cockerline, supra, 411 N.J. Super. at 618. Accordingly, we dismiss this argument without further discussion. R. 2:11-3(e)(1)(E).