JUSTIN J. MOORE v. PIERSOL HOMES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2062-11T1

JUSTIN J. MOORE,

Plaintiff-Respondent,

v.

PIERSOL HOMES and G-BOYS

EXCAVATION, INC.,

Defendants,

and

JOHN SARAPPA, L.L.C., d/b/a

SARAPPA SEPTICS,

Defendant-Appellant.

_____________________________________

May 17, 2013

Submitted December 12, 2012 - Decided

Before Judges Simonelli and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket

No. L-6115-08.

Law Offices of Michael J. Dunn, L.L.C., attorneys for appellant (Mr. Dunn, on the briefs).

Law Offices of Shabel & DeNittis, P.C., attorneys for respondent (Joseph A. Osefchen, on the brief).

PER CURIAM

Defendant John Sarappa L.L.C., d/b/a Sarappa Septics (Sarappa), appeals from the denial of its motion for a new trial following a jury verdict in favor of plaintiff Justin J. Moore for injuries he sustained in a residential construction workplace accident. Because we conclude that the trial judge erred in preventing Sarappa from seeking to have the jury allocate fault among it and the other defendants, all of who settled before trial, we reverse.

The essential facts can be briefly summarized. Sarappa was working as a subcontractor to defendant G-Boys Excavation, Inc. (G-Boys) on construction of a home being built by defendant Piersol Homes (Piersol). Piersol, the general contractor, had engaged G-Boys to perform excavation work on the site. G-Boys had hired Sarappa to install a septic tank and disposal field. In the course of its work, Sarappa dug a large hole in what would be the front yard and deposited the dirt in the area between the pit and the front of the house. The pit was to be back-filled with sand. Piersol intended to make use of the excavated fill in performing the final grading of the site. Accordingly, Sarappa piled the dirt for Piersol's future use in an L-shaped mound estimated to be eight-feet high, twenty-feet wide, and fifty-feet long. The mound blocked access to the house's front doors. Because the back door was then ten feet off the ground without access stairs, workers were required to enter the house through the garage entrance.

Plaintiff was an electrician's helper employed by Trinity Electric Services, L.L.C., another subcontractor on the job. He and a co-worker arrived at the site on the day of the accident carrying various tools and supplies and a fourteen-foot ladder. Ascertaining that they could not take the ladder through the garage entrance without risking damage to the newly-installed drywall, the two determined to scale the mound to gain access to the front doors. Carrying his end of the ladder over his head, plaintiff got only about one quarter of the way up the mound before he lost his footing and fell, incurring the injury that gave rise to this suit.

Plaintiff initially sued only Piersol. G-Boys was named sometime later. Almost a year after the complaint was filed, Sarappa's principal, John Sarappa, was deposed as a fact witness. Shortly after that deposition and shortly before the discovery end date, plaintiff was allowed to amend his complaint again to add Sarappa as a defendant. Sarappa filed an answer and cross-claim for contribution and indemnification against Piersol and G-Boys. Thereafter, all defendants filed motions for summary judgment.

Sarappa moved for summary judgment contending that plaintiff's expert ascribed liability to Piersol and G-Boys but not to Sarappa, and that plaintiff could not prove Sarappa was negligent. Plaintiff opposed the motion on the basis that there were facts in dispute and that Sarappa had a duty to fence the mound, as he had the hole, or otherwise warn other workers on the site of the danger of crossing the dirt pile. Sarappa's motion was denied with the others and the case listed for trial.

On the trial date, plaintiff settled with both Piersol and G-Boys, leaving Sarappa as the only non-settling defendant. The matter was re-listed and reached two months later.

Just before the re-listed date, plaintiff moved in limine to bar Sarappa "from raising an 'empty chair' defense." Plaintiff contended that Sarappa had pleaded "unspecified cross-claims" and failed to respond to discovery requests seeking the facts underlying Sarappa's contention that Piersol or G-Boys had caused plaintiff's injuries. Plaintiff argued that Young v. Latta, 123 N.J. 584 (1991), mandated that these derelictions required that Sarappa be barred from arguing the liability of settling defendants at trial. Sarappa opposed the motion arguing that Young was inapposite, and the discovery to which plaintiff referred were form interrogatories which were never the subject of a discovery motion or even a reminder letter to Sarappa's counsel. Counsel further noted that Sarappa had been deposed and that as plaintiff was obviously aware of the duties of a general contractor and subcontractors to workers on a construction site, having sued Piersol and G-Boys on such theories, he should not be heard to argue surprise. The trial judge agreed with plaintiff and granted the motion based on Young and Sarappa's failure to respond to discovery.

Trial commenced and the jury returned a verdict for plaintiff of one million dollars, finding Sarappa 60% responsible and plaintiff 40% responsible. Sarappa's motion for new trial was denied. This appeal followed.

Rule 4:49-1(a) provides that a motion for new trial is to be granted when "it clearly and convincingly appears that there was a miscarriage of justice under the law," whether based on a contention that the verdict was against the weight of the evidence or that the judge's trial rulings prejudiced one of the parties. Hill v. N.J. Dep't of Corr. Comm'r, 342 N.J. Super. 273, 302 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). We review that decision for abuse of discretion. Ibid.

A defendant's right to have a settling defendant's liability apportioned by the jury is one well-settled in this State. See Judson v. Peoples Bank & Trust Company of Westfield, 17 N.J. 67, 92-94 (1954), aff'd on reconsideration, 25 N.J. 17, 34 (1957). The issue confronting the Court in Young, which had divided the panel in this court, was whether that right was dependent on the non-settling defendant having filed a cross-claim for contribution. Young, supra, 123 N.J. at 586. The trial court in Young had submitted the question of the settling defendant's fault to the jury, even though the non-settling defendant had never asserted a cross-claim in accordance with the Court Rules. Determining that Young "had adequate notice that the settling defendant's negligence would be at issue," the Court found that he was not prejudiced by the absence of a cross-claim and affirmed the molded verdict. Ibid. The Court's precise holding was that "a credit is available in every case in which there are multiple defendants, whether or not a cross-claim for contribution has been filed." Ibid. (emphasis added).

Because the decision in Young was at odds with the then-current Rule on cross-claims, the Court referred the opinion to the Civil Practice Committee to fashion a Rule amendment to reflect the decision. Ibid. Rule 4:7-5(c) was thereafter amended to add:

A non-settling defendant's failure to have asserted a cross-claim for contribution against a settling defendant, however, shall not preclude either an allocation of a percentage of negligence by the finder of fact against the settling defendant or a credit in favor of the non-settling defendant consistent with that allocation, provided plaintiff was fairly apprised prior to trial that the liability of the settling defendant remained an issue and was accorded a fair opportunity to meet that issue at trial.

Here, Sarappa's timely asserted cross-claims against Piersol and G-Boys provided plaintiff the required notice that their negligence would be at issue at trial, and made Young and Rule 4:7-5(c) irrelevant to the matter. Plaintiff misused Young1 to convince the trial court that precluding Sarappa from allowing the jury to apportion the liability of the settling defendants was an appropriate sanction for an alleged failure to provide discovery. Young provides no support for that decision.

As we have noted on many occasions, "[t]he discovery rules were designed to eliminate, as far as possible, concealment and surprise in the trial of lawsuits to the end that judgments rest upon real merits of the causes and not upon the skill and maneuvering of counsel." Abtrax Pharms. v. Elkins-Sinn, 139 N.J. 499, 512 (1995) (quoting Oliviero v. Porter Hayden Co., 241 N.J. Super. 381, 387 (App. Div. 1990)). We recollect that here as it is clear to us that plaintiff used the discovery rules not as a shield to protect himself from surprise at trial but as a sword to deprive Sarappa of its well-established right to have the liability of settling defendants apportioned by the jury. Such maneuvering cannot be countenanced.

As we have already noted, Sarappa was joined as a defendant just as discovery was scheduled to end and after he had already been deposed as a non-party fact witness. Along with the summons and amended complaint, plaintiff served Sarappa with a request to answer form interrogatories and a request for production of documents. Sarappa did not answer those requests and plaintiff never sought Sarappa's responses. Sarappa's counsel represented to the court that he had never received those requests from the client and that plaintiff's counsel had never alerted him to them. Plaintiff's motion in limine, ten days before a re-listed trial and eleven months after discovery had ended, was the first indication Sarappa had that plaintiff considered it in violation of its discovery obligations.

Despite having never asked counsel to produce the information of which he claims he was deprived, plaintiff argued in his in limine motion that Sarappa's failure to provide that discovery left him unaware of the basis of Sarappa's contention that Piersol or G-Boys was responsible for his injuries. In light of the positions of the parties staked out in the motions for summary judgment, that contention seems disingenuous, at best. Sarappa has maintained throughout this case that he had no control of the worksite and that he piled the dirt where Piersol wanted it. Plaintiff produced two expert reports opining that Piersol was negligent for failing to maintain a safe worksite and G-Boys was negligent for failing to insure that its work did not create a hazardous condition. Moreover, plaintiff successfully opposed those motions by arguing the liability of all three defendants, arguing that the jury needed to decide the degrees of their joint and several liability. There is no basis on this record to conclude that plaintiff could have been in any manner surprised that Piersol's and G-Boys' negligence would be an issue at trial. Plaintiff's in limine motion provides ample proof that he anticipated facing this precise claim.

Under these circumstances, we conclude that the trial court's having precluded Sarappa from having the jury apportion liability among all named defendants as a discovery sanction was a mistaken application of its discretion and the denial of his motion for new trial on that basis clearly and convincingly a miscarriage of justice. Our resolution of this issue makes it unnecessary to address any other.

R

1 Plaintiff expressly argued to the trial court that Young "held that a non-settling defendant who has pleaded a cross-claim, but who fails to provide any timely discovery about the factual basis for a non-settling defendant's claim that settling defendants caused the injury, should be barred from raising such a defense at trial." Young holds no such thing.