LANCER INSURANCE COMPANY a/s/o VAULT et al. v. a/s/o VAULT and JOHN McHUGH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4557-04T24557-04T2

LANCER INSURANCE COMPANY

a/s/o VAULT and JOHN McHUGH,

Plaintiff-Appellant,

v.

STEVEN M. RIVERA and GEORGE

RIVERA,

Defendants-Respondents.

______________________________

 

Submitted November 29, 2005 - Decided January 11, 2006

Before Judges Kestin and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Burlington

County, L-20-03.

Floyd G. Cottrell, attorney for appellant

(Scott Diener, on the brief).

Stephen E. Gertler, attorney for respondent

(Steven I. Greenberg and AnnMarie Flores,

on the brief).

PER CURIAM

Plaintiff, as subrogee, sued to recover for property damage sustained in an automobile accident. Immediately prior to trial, Judge Wellerson granted a defense motion seeking to prohibit plaintiff from producing evidence of property damage in excess of the amount it had disclosed in discovery. Given that ruling, the parties stipulated damage at $8,279.06 and judgment was entered in that amount. Plaintiff appeals, and we affirm.

On August 31, 2001, plaintiff's insured was involved in a collision with a vehicle owned by defendant, George Rivera, and driven by defendant, Stephen M. Rivera. Plaintiff instituted this subrogation action on January 3, 2003, and discovery proceeded in the normal course. Before discovery ended on November 15, 2004, plaintiff provided defendant with an estimate of the damage to its vehicle, for which it sought recovery. The estimate was dated September 7, 2001, and valued damages at $5,667.58. On January 11, 2005, after an unsuccessful arbitration, a trial date was set for March 16, 2005.

Five days prior to trial, plaintiff faxed to defendant "proofs of damages." The documents accompanying the fax included a letter dated March 11, 2005 from plaintiff's counsel to defendant's counsel identifying the file and noting "Enclosed I am providing proofs of our damages in this matter in the total amount of $16,658." This was the first indication that plaintiff was seeking damages in any amount other than $5,667.58. The fax was accompanied by a copy of a check made payable to plaintiff's insured in the amount of $17,795; the $5,667.58 estimate dated September 7, 2001, which had been provided earlier; and two additional documents from an appraiser, Mr. Constantino of Intercoastal Appraisal Service. None of those documents was dated later than September 25, 2001. They described damage discovered as the result of a

re-inspection. The additional damage amounted to $2,611.48 and caused the appraiser to report that "my supplement at this time is $8,279.06." This figure is obviously derived by adding the supplemental damage of $2,611.48 to the original estimate of $5,667.58. Constantino also suggested that the vehicle be "totaled", but gave no indication of the value placed on the vehicle for that purpose. Finally, Constantino included in his estimate some figures for a "tear down of four hours at $40 equals $160 and storage starting at 9/24 at $25 per day." The documents do not support, in any way, the $16,658 mentioned in counsel's letter.

On March 14, 2005, two days before trial, plaintiff faxed additional information to defense counsel under a cover sheet which identified the file and noted "additional documents from Intercoastal." The "additional documents" consisted of a new appraisal that itemized damage to the car of $16,042.69. No explanation was offered for the difference between the newly supplied estimate and the amount originally claimed for damages or the somewhat higher amount referenced in the letter of March 11, 2005. The documents were received at 4:46 p.m.

When the parties appeared for trial on March 16, 2005, plaintiff represented to the court that its appraiser was present and prepared to testify with respect to the total loss of the vehicle and to justify his damage estimate, first provided to defendant on March 14, 2005, of $16,658. Defendant's counsel moved orally to prohibit any damage testimony in excess of the $8,279.06 of which he had been notified during discovery and by supplement some five days prior to trial. Judge Wellerson granted that motion. In doing so, the judge referenced the late notice of the new damage claim and found that the opinion of plaintiff's proposed expert (that the car should be "totaled") was a net opinion.

We believe this appeal is governed by R. 4:17-7. That rule provides that:

... if a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the end of the discovery period as fixed by the track assignment or subsequent order. Amendments may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date.

Even though the last sentence of the Rule was added in September 2004, after this litigation had begun, there is no question that it applies to this case. Smith v. Schlak, 360 N.J. Super. 337, 344 (App. Div. 2003).

The Rule was adopted as apart of the "Best Practices" amendments to our discovery Rules. The purpose of the amendments

. . . was to render trial dates meaningful and, thus, the enforcement or relaxation of discovery end dates are chiefly governed by the presence of an existing trial or arbitration date and whether the late discovery can be completed without jeopardizing the arbitration or trial date. See Tucci, supra, 364 N.J. Super. at 53, 834 A.2d 73 ("A major concern of the Best Practices rules was the establishment of credible trial dates by the avoidance of last-minute or 'eve of trial' adjournments by reason of incomplete discovery."); Zadigan v. Cole, 369 N.J. Super. 123, 129, 848 A.2d 73 (Law Div. 2004) ("These haphazard extensions [of discovery, prior to 'Best Practices'] had a devastating effect on trial date certainty."); Montiel v. Ingersoll, 347 N.J. Super. 246, 253, 789 A.2d 190 (Law Div. 2001) ("One clear focus of 'Best Practices' was an attempt to deal with the problems previously presented as a result of litigants' failure to complete discovery in a timely fashion, the resulting delays and the problems presented in scheduling cases for arbitration and/or trial on a meaningful basis."). Evidence of the underlying intent of the "Best Practices" rule amendments can be found in Recommendation 4.1 of the Report of the Conference of Civil Presiding Judges on Standardization and Best Practices, 156 N.J.L.J. 80, 82 (April 5, 1999). Therein, the Conference of Civil Presiding Judges emphasized the importance of a clear discovery end date because once "an arbitration or trial date is set, no more discovery must occur, unless authorized by the court on a showing of 'exceptional circumstances.'"
 
[Ponden v. Ponden, 374 N.J. Super. 1, 10

(App. Div. 2004), certif. denied, 183 N.J. 212 (2005).]

Plaintiff's late attempt to amend discovery responses is precisely what the Rule was intended to avoid. Plaintiff had provided an answer to interrogatories respecting the amount of damage claimed, which put defendant on notice that plaintiff was claiming $5,667.58. Once discovery ended, plaintiff was prohibited from amending its claim without a certification that the information underlying the amendment was not available earlier. No such certification was provided and, apparently, could not have been. The application of the plain language of the rule bars plaintiff from amending its answers to interrogatories, whether five days prior to trial or two days prior to trial. The entire purpose of our discovery system is "to ensure an early exchange of information to which the parties are entitled; to relieve an aggrieved party from the burden of having to seek court intervention to compel discovery to which it was entitled; and, to establish consequences for failure to provide discovery as the anticipated rules required." Zadigan v. Cole, 369 N.J. Super. 123, 130-31 (Law Div. 2004).

Plaintiff does not suggest its inability to obtain this information prior to the close of discovery; rather, it relies on pre-best practices cases for the proposition that, in the absence of prejudice, amendments to interrogatory answers should be allowed. Given our current emphasis on trial date certainty and the inability of plaintiff to excuse its deficient performance, those cases are unavailing. We are satisfied that Judge Wellerson's decision not to allow plaintiff to produce testimony of damages in excess of $8,279.06 was eminently correct.

Plaintiff also asserts that, in any event, defendant was aware of the $16,658.00 damage claim well before the close of discovery. In support of that assertion, plaintiff points to a letter dated January 22, 2002, from Teacher's Insurance Plan (apparently plaintiff's servicing agent) to defendant's carrier, setting out plaintiff's subrogation claim in the amount of $16,658. There is, however, no suggestion that this letter ever found its way to defendant's attorney. Communications between insurance companies, especially when one of them is not a party to the ultimate litigation, cannot be a substitute for the discovery requirements imposed by our rules. Given our conclusion, there is no need to discuss Judge Wellerson's determination that the proposed testimony as to the total value of the car was a net opinion.

 
Affirmed.

This amount includes the additional $2,611.48 of which defendant first had notice on March 11, 2005. Defendant argues now that he mistakenly agreed to accept that untimely addition to plaintiff's damages. Nevertheless, defendant accepted that figure at trial and has not cross-appealed.

(continued)

(continued)

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A-4557-04T2

January 11, 2006