CURE v. SHERROD VANS, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6368-11T3

CURE a/s/o MR. KARLIN JOHNSON,

Plaintiff-Respondent,

v.

SHERROD VANS, INC.,

Defendant-Appellant,

and

ROUTE 1 AUTO SOUND, INC.,

Defendant-Respondent.

________________________________

July 25, 2013

Submitted July 3, 2013 Decided

Before Judges Axelrad and Fuentes.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1797-10.

Thompson Becker & Bothwell, attorneys for appellant (John H. King, on the briefs).

Raymond J. Noonan, attorney for respondent CURE a/s/o Mr. Karlin Johnson.

Law Offices of William E. Staehle, attorneys for respondent Route 1 Auto Sound, Inc. (Lisa Marie DeRogatis, on the brief).

PER CURIAM

In March 2007, Karlin Johnson purchased a new 2006 Econoline Ford van from Hillside Ford, an authorized dealer of the Ford Motor Company, located in the Township of Hillside on Route 22. Before Hillside Ford sold the van to Johnson, Ford Motor Company sent the vehicle to Sherrod Vans, Inc., a duly authorized Ford subcontractor, to install a custom interior and entertainment equipment.

After Johnson purchased the van from Hillside Ford, he brought it to Route 1 Auto Sound, Inc., to install a number of devices and enhancements to the vehicle, including a combination radio/DVD player, fog lights, and a backup camera. On March 4, 2009, the van was completely destroyed as a result of a spontaneous fire that occurred while Johnson was driving it.

Plaintiff Citizens United Reciprocal Exchange (CURE)1 is contractually subrogated to the claims of Johnson, its insured. Plaintiff filed suit to recover $22,722.65, "together with costs, interest and attorney's fees," against defendants, Sherrod Vans, Inc., and Route 1 Auto Sound, Inc., claiming that these two parties may have been either jointly or severely liable for the cause of the fire.

After joinder of issue and extensive discovery, plaintiff and codefendant Route 1 Auto Sound, Inc., moved for summary judgment against Sherrod Vans, Inc. Because the cause of the fire was an issue beyond the ken of a lay factfinder, plaintiff submitted a report prepared by an expert who opined that the fire was caused by work performed by Sherrod Vans, Inc. Because plaintiff's expert's opinion was not challenged by Sherrod Vans, Inc., by presenting a contrary expert opinion, plaintiff, and by extension Route 1 Auto Sound, Inc., argued they were both entitled to summary judgment.

Sherrod Vans, Inc., argued that the case was not ripe for summary judgment because there were a number of material factual issues in dispute. In support of its position, Sherrod Vans, Inc., cited passages from the deposition of a lay representative of Route 1 Auto Sound, Inc., in which the witness conceded that he never made any attempt to determine whether the installations that his company made were properly connected to "the Ford fuse box." According to Sherrod Vans, Inc.'s counsel, this employee's alleged concessions raised material questions of fact as to whether plaintiff's expert "traced all of the relevant aftermarket wires" that the expert identified as the potential ignition source. According to Sherrod Vans, Inc., these and other similar disputed facts require resolution before a jury. Thus, by granting summary judgment, the trial court would be usurping the jury's exclusive function to decide the facts.

In light of this record, Judge Vincent LeBlon granted summary judgment in plaintiff's favor and against Sherrod Vans, Inc., and, by logical extension, dismissed the claims against Route 1 Auto Sound, Inc. Judge LeBlon explained his ruling in a detailed memorandum of opinion dated May 2, 2012. We affirm substantially for the reasons expressed by Judge LeBlon in his written decision.2

The standard of review in determining whether to grant the relief of summary judgment is well-settled and we need not restate it at length here. Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). The trial court must decide whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We review de novo the grant or denial of a motion for summary judgment. Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005).

Absent intentional human action, it is self-evident that automobiles do not spontaneously ignite and, as a result, become completely destroyed by fire. Because no one in this case has remotely suggested that Johnson's van was intentionally tampered with, the question concerning the cause of the fire is technical in nature. It requires someone with specialized knowledge, training, or experience to investigate and opine as to the cause of the fire. Our rules of evidence anticipate this eventuality and provide that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." N.J.R.E. 702.

Here, Judge LeBlon correctly identified and summarized the relevant case law that addresses whether a case's subject matter is "so esoteric that jurors of common judgment and experience cannot form a valid judgment as whether the conduct of the party was reasonable." Relying on State v. Kelly, 97 N.J. 178 (1984), and Butler v. Acme Markets, Inc., 89 N.J. 270 (1982), Judge LeBlon determined that this was the type of case that required an expert witness because "aftermarket automobile wiring, is outside the ken of the average juror."

Judge LeBlon took particular note, as do we, that Sherrod Vans, Inc., not only did not retain its own expert, but it did not even depose plaintiff's expert as a means of exploring any possible inconsistencies in the expert's reasoning or failures to consider other relevant information. As a matter of strategy or by oversight, Sherrod Vans, Inc., left this crucial part of plaintiff's case unchallenged. It must now live with the consequences of that decision.

Affirmed.

1 A reciprocal insurance exchange is a group of unrelated entities that join together for the purpose of insuring one another whereby each entity assumes a portion of the total risk. Melissa Samaroo, The Complete Dictionary of Insurance Terms Explained Simply 250 (2011).

2 In the interest of clarity, we also affirm Judge LeBlon's decision rejecting Sherrod Vans, Inc.'s motion for reconsideration.