ESTATE OF NICK HANGES v. METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY Cross-

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3594-07T23594-07T2

ESTATE OF NICK HANGES,

Plaintiff-Appellant/

Cross-Respondent,

v.

METROPOLITAN PROPERTY &

CASUALTY INSURANCE COMPANY,

Defendant-Respondent/

Cross-Appellant.

________________________________________________________________

 

Argued May 19, 2009 - Decided

Before Judges Wefing, Parker and LeWinn.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket Nos. L-3650-07 and L-3450-06.

Demetrios K. Stratis argued the cause for appellant/cross-respondent.

Jerald J. Howarth argued the cause for respondent/cross-appellant (Howarth & Associates, attorneys; Mr. Howarth and Purnima D. Ramlakhan, on the briefs).

PER CURIAM

In these cross-appeals, the Estate of Nick Hanges appeals from an order entered on March 20, 2008 granting defendant's motion for summary judgment dismissing the complaint with prejudice. Defendant Metropolitan Property & Casualty Insurance Company (Metropolitan) cross-appeals from three orders: one entered on April 2, 2007 reinstating the complaint after plaintiff's failure to provide discovery; an order entered on June 8, 2007 dismissing the complaint for plaintiff's failure to provide an expert's report; and an order entered on August 3, 2007 vacating the June 8 order and reinstating the complaint. We reverse and remand on plaintiff's appeal and affirm the orders challenged in the cross-appeal.

Nick Hanges, the decedent, was involved in an automobile accident on October 31, 2004. He reported to the police that he was cut off by a "phantom" blue Corvette, causing him to lose control and strike an underpass. He was treated for a number of injuries over a period of time. Decedent was under psychological treatment and reported to his therapist, as he had to the police and the medical providers, that he had been cut off by the "phantom" blue Corvette.

After being treated in New Jersey, Hanges was transported to Florida for further treatment on November 8, 2004. He returned to New Jersey several weeks later and on December 7, 2004, committed suicide. The estate claimed coverage under decedent's uninsured motorist (UM) provision of the policy issued to him by Metropolitan.

In granting summary judgment, the trial court determined that all of the decedent's statements made after the accident - to the police officer, two physicians and a psychologist - regarding the "phantom vehicle" were inadmissible hearsay. In this appeal, plaintiff argues that (1) the trial court erred in finding all of the statements inadmissible; (2) the facts are not so one-sided as to support a grant of summary judgment in favor of defendant; and (3) the trial court incorrectly substituted the weight of the evidence standard for the admissibility standard.

In its written opinion, the trial court parsed each of the statements under the Rules of Evidence and determined that they were precluded under N.J.R.E. 803(c)(2), the excited utterance exception to the hearsay rule; N.J.R.E. 803(c)(6), the business records exception; and N.J.R.E. 803(c)(4), statements made for the purpose of medical diagnosis or treatment. We agree with the trial court's decision respecting decedent's statements to the two treating physicians and the psychologist. We disagree, however, with the trial court's conclusion that decedent's statements to the police officer immediately after the accident are inadmissible hearsay. In our view, the statements to the police officer are clearly admissible under N.J.R.E. 804(b)(6), the declaration of a decedent.

N.J.R.E. 804(b)(6) provides that trustworthy statements made by a decedent are admissible under the following conditions: "[i]n a civil proceeding, a statement made by a person unavailable as a witness because of death if the statement was made in good faith upon declarant's personal knowledge in circumstances indicating that it is trustworthy." The Rule requires that the trial court, before admitting the evidence, find that the declarant is dead, the statement was made in good faith, the statement was made upon the declarant's own personal knowledge, and that there is a probability from the circumstances that the statement is trustworthy. DeVito v. Sheeran, 165 N.J. 167, 194 (2000). "A trial court must make particularized findings of good faith, personal knowledge and trustworthiness prior to the admission of evidence of this nature under this hearsay exception." Ibid. In commenting on the Rule, one observer noted:

Basically, this Rule reflects the judgment that if a statement is trustworthy and the declarant cannot be called because of his death, the gain of evidential value of the statement outweighs the loss of ability to cross-examine. However, prior to the enactment of the 1967 rule, it was felt that the death of a person should not make admissible a self-serving assertion which did not fit into one of the recognized exceptions to the hearsay exclusionary rule.

[Biunno, Current N.J. Rules of Evidence, comment 5 on N.J.R.E. 804 (2009).]

In rejecting the applicability of this exception to the hearsay rule, the trial court stated:

[T]he Estate has failed to show that . . . the decedent's statement was made in good faith or it was . . . trustworthy. The decedent had reason to not be forthcoming in this situation. He crashed his car into an underpass and there was no other evidence of any other vehicles involved. A person in these circumstances has much to gain if he or she can successfully shift the blame to some other non-verifiable cause. Thus under the circumstances in which the statement was made there is great incentive for a driver to skew the facts in [his] favor. For this reason the statements do not possess the requisite trustworthiness or reliability to be admitted under the hearsay exception[ ] for unavailable declarants . . . .

We disagree. The declarant was clearly deceased and there does not appear to be any dispute that his statement regarding the "phantom vehicle" was made from his personal knowledge. There is nothing in the record, moreover, to indicate that the statement was not made in good faith or that it was otherwise lacking in reliability or trustworthiness. The trial court need not find the statement absolutely trustworthy before it may be admitted under the Rule; it need only find a probability that the statement is trustworthy from the circumstances surrounding its making. DeVito, supra, 165 N.J. at 195; Ayala v. Lincoln, 147 N.J. Super. 304, 307 (App. Div. 1977). The factors relevant in consideration of trustworthiness include: whether the statement was made under oath; the duration of the time between the event and the statement; whether the declarant had first-hand knowledge; and the credibility of the declarant. DeVito, supra, 165 N.J. at 195-96.

Although the decedent was not under oath, the statement was made immediately after the accident to the police officer and there is nothing in the record to suggest that the decedent had any motive to falsify his statement to the officer. Indeed, that is a credibility issue solely within the province of the jury and not subject to the trial court's determination on a motion for summary judgment.

Accordingly, we reverse and remand for further proceedings in accordance with this opinion.

With respect to the cross-appeal, we find that defendant's arguments lack sufficient merit to warrant consideration in a written opinion. R. 2:11-3(e)(1)(E).

 
Reversed and remanded on the appeal; affirmed on the cross-appeal.

(continued)

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A-3594-07T2

August 18, 2009