MARCO CIRIANI, et al. v. ERIN C. FINLEY, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6471-06T26471-06T2

MARCO CIRIANI and DOROTHY CIRIANI,

Husband and wife,

Plaintiffs-Appellants,

v.

ERIN C. FINLEY, LORETTA A. FINLEY

and SIRIUS AMERICA INSURANCE COMPANY,

Defendants-Respondents.

_____________________________________

ERIN FINLEY,

Plaintiff-Respondent,

v.

MARCO CIRIANI,

Defendant,

and

PRUDENTIAL PROPERTY AND CASUALTY

INSURANCE COMPANY OF NEW JERSEY,

Defendant-Respondent.

_____________________________________

 

Submitted February 11, 2008 - Decided

Before Judges Lintner and Graves.

On appeal from the Superior Court of New

Jersey, Law Division, Monmouth County,

L-1504-03 and L-4687-03.

Hobbie, Corrigan, Bertucio & Tashjy, attorneys for appellants (Norman M. Hobbie, of counsel; Jacqueline DeCarlo, on the brief).

Office of William P. LaRosa, attorney for respondents Erin C. Finley and Loretta A. Finley (Elaine Brennan, on the brief).

Kaye Cooper Fiore Kay & Rosenberg, attorneys for respondent Sirius America Insurance Company (Anthony R. Fiore, on the brief).

Kelaher, Garvey, Ballou, Van Dyke & Rogalski, attorneys for respondent Prudential Property and Casualty Insurance Company of New Jersey (Robert A. Ballou, Jr. and Megan C. Jonas, on the brief).

PER CURIAM

On December 15, 2002, Marco Ciriani was driving his Lincoln on the Garden State Parkway, with his wife Dorothy in the front passenger seat, when they were involved in an accident with a vehicle operated by Erin Finley. The accident also involved an alleged phantom vehicle. The Cirianis and Finley filed complaints for personal injury against each another. They also named the phantom vehicle as a defendant. Their insurance carriers answered for the phantom vehicle under their respective Uninsured Motorist Coverage. A jury trial was held on the issue of liability only. The jury returned a verdict finding no liability on the phantom vehicle and both Finely and Marco negligent. The jury apportioned liability 60% for Marco and 40% for Finley.

Following the verdict, Marco and Dorothy moved for a new trial, asserting that the verdict was against the weight of the evidence so as to constitute a clear and convincing miscarriage of justice. The judge disagreed and denied plaintiffs' motion. Marco now appeals from the judgment and order denying the motion for new trial. He contends that the jury's allocation of liability was against the weight of the evidence and that the judge erred in denying his motion for new trial or in not modifying the verdict to allocate liability in his favor. We disagree and affirm.

We restate the proofs established at trial. The accident occurred shortly after 10:00 p.m. Finley, a college freshman, was on her way back to Rutgers in New Brunswick. She was driving her sister's Hyundai Sonata, a car she had used a "handful of times" prior to the accident. She was proceeding northbound on the Parkway in the left lane at the speed limit, 65 miles per hour. Traffic was light. As she passed a rest area, she saw brake lights on a vehicle traveling between fifteen to twenty car lengths ahead of her. She slammed on her brakes and swerved to the right. Her vehicle moved into the middle two lanes and then began to spin around causing her to lose control. The trunk of the Hyundai hit the guardrail and the vehicle came to rest facing in a southeast direction between the fast lane and the next lane. Although she could not tell in seconds, Finley testified that she sat in that position for what seemed to her "a long enough period of time where I could sit there and tell myself that I was okay, and then hear a beep and then turn my head and then see light in my window." The right front of the Hyundai was then struck by the front of the Lincoln.

Dorothy Ciriani described the accident as "happening so fast." She testified that she saw something black in front of her, which she could not make out or identify. Her husband said, "oh my God, a car." She testified that Marco "tried to avoid it and he turned his wheel to the right. And that's all I remember." When asked if Marco used his horn, she responded that he "didn't have time."

Marco testified that he was operating his vehicle in the center lane at the speed limit. As he passed the rest area, the road bears to the left and declines. According to Marco, he "suddenly" saw a car in front of him, facing him with no lights "maybe [fifty to fifty-five feet] away." He "tried to brake . . . tried to turn and get around it, but it was impossible. There was not enough time. Not enough space." He stated that he might have used his horn. The investigating trooper's deposition was read into evidence. It basically confirmed the versions given by the drivers.

In denying Marco's motion for a new trial, the trial judge observed:

My perception is that [Finley] lost control of the car. Whether she wasn't paying attention or whatever . . . she . . . basically jam[med] on the brakes of that vehicle almost without any bearing on what had occurred, what was occurring before her, and the vehicle spun out. And the jury found that she was 40 percent negligent.

With reference to [Marco], you know the jury replayed his testimony. And he basically said he was coming down the parkway, they had spent a day with their grandchildren, and that he couldn't avoid the collision. The jury found otherwise. They found that he could have avoided the collision.

The applicable principles are well settled. Rule 4:49-1(a) entitles a party to a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." An appellate court must adhere to essentially the same standard when reviewing a trial judge's action on a new trial motion. R. 2:10-1; see also Dolson v. Anastasia, 55 N.J. 2, 6 (1969). However, we are obliged to give deference to the trial court's "feel of the case" as to matters such as the demeanor or credibility of the witnesses. Carrino v. Novotny, 78 N.J. 355, 360-61 n.2 (1979); see also Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977).

Applying these principles, we are satisfied that the judge did not err either in denying a new trial or a reapportionment of the liability verdict. The judge aptly determined that the required standard, that the verdict represented a clear and convincing miscarriage of justice, was not met. The role of a judge in determining whether a verdict constitutes a miscarriage of justice involves "'canvass[ing] the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury['s] [decision].'" Dolson, supra, 55 N.J. at 6 (quoting Kulbacki v. Sochinsky, 38 N.J. 435, 445 (1962)). The judge may not substitute his own judgment for that of the jury. Ibid. In that context, it cannot fairly be said that the evidence was so one-sided as to compel the conclusion that the verdict was a clearly erroneous one. We defer, as we must do, to the judge's feel of the case. Moreover, there is nothing in the record to indicate that the verdict suffered from some evidential insufficiency. Rather, it was reasonable in light of the evidence presented. Accordingly, we see no reason to intervene.

Affirmed.

(continued)

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A-6471-06T2

March 10, 2008