SCOTT RICHARDSON v. LIBERTY MUTUAL INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-05835-12T3

SCOTT RICHARDSON and DONNA

RICHARDSON,

Plaintiffs-Appellants,

v.

LIBERTY MUTUAL INSURANCE

COMPANY,

Defendant/Third-Party

Plaintiff-Respondent,

v.

MICHAEL WILD,

Third-Party Defendant-

Respondent.1

______________________________________

August 28, 2014

Submitted August 4, 2014 Decided

Before Judges Sapp-Peterson and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4063-11.

Locks Law Firm, LLC, attorneys for appellants (James A. Barry, on the brief).

Law Offices of Styliades & Jackson, attorneys for respondent Liberty Mutual Insurance Company (G. Samuel Hoffman, on the brief).

PER CURIAM

Plaintiffs Scott and Donna Richardson appeal from the trial court order granting summary judgment in favor of their insurer, and defendant Liberty Mutual Insurance Company (Liberty Mutual), arising out of a motor vehicle accident from which plaintiff2 sustained injuries. Plaintiff sought to recover uninsured motorists (UM) benefits based upon the alleged negligence of the driver of a tractor trailer that purportedly cut off a vehicle driven by third-party defendant Michael Wild. We reverse and remand for trial.

These are the facts gleaned from the record and viewed, as they must be, in the light most favorable to plaintiff. R. 4:46-2(c). While travelling on I-95 in Pennsylvania, in the far-right, northbound lane, Wild, a Pennsylvania resident, was travelling directly behind plaintiff. Wild activated his left turn signal and began changing lanes directly to his left into the middle lane of the highway. When Wild's vehicle was three-quarters into the middle lane, a tractor trailer began changing lanes from the far left lane into the middle lane. The tractor trailer forced Wild back into the right lane, where Wild struck the rear of plaintiff's vehicle. The tractor trailer continued travelling northbound on I-95 and was never identified.

Plaintiffs filed a complaint against Wild in Pennsylvania, alleging that he operated his motor vehicle negligently, causing the resulting bodily injuries to plaintiff Scott Richardson. During the course of discovery in that action, plaintiffs deposed Wild. Wild testified at his deposition the tractor trailer "cut [him] off," causing him to turn back into the right lane behind plaintiff's vehicle with which he collided. Wild thereafter reached a settlement with plaintiffs of their claims.

Plaintiffs sought UM benefits from Liberty Mutual pursuant to the "phantom driver" provisions of their insurance policy, which affords benefits under the UM endorsement for motor vehicle injuries caused by an unknown driver. See N.J.S.A. 17:28-1.1 and N.J.S.A 39:6-78. Liberty Mutual denied benefits. Plaintiffs consequently filed a complaint in Superior Court seeking to "invoke their right to obtain uninsured motorist benefits from [Liberty Mutual]." Liberty Mutual denied UM liability, and also filed a third-party complaint in the New Jersey action against Wild.

Liberty Mutual moved for summary judgment, which the court initially denied after concluding there were genuinely disputed issues of fact sufficient to defeat the motion. The court also extended the discovery end date. As a result, Liberty Mutual propounded a request for admissions upon Wild. Specifically, Wild was asked to admit or deny whether, "[t]o the best of your knowledge the tractor trailer was making a proper lane change at the time you were attempting to change lanes[,]" to which Wild responded, through his New Jersey attorney, "Yes." Liberty Mutual also propounded a supplemental interrogatory upon Wild, asking "[w]hat[,] if any[,] action did the tractor trailer do to contribute to the happening of the accident in question?" Wild answered, again through his attorney, "[b]oth the tractor trailer and defendant, Michael Wild[,] were merging into the same lane at the same time and were in each other's blind spot."

Liberty Mutual once again moved for summary judgment based upon Wild's responses to the requests for admission and supplemental interrogatory. Plaintiffs opposed the motion. After conducting oral argument, the judge granted the motion, concluding the tractor trailer properly changed lanes, therefore, there were no genuinely disputed issues of fact justifying denial of defendant's motion. The present appeal followed.

On appeal, plaintiffs contend the court erred in granting summary judgment in favor of Liberty Mutual because there existed genuinely disputed issues of fact, which should have been presented to the jury. In addition, plaintiffs contend Liberty Mutual improperly used the request for an admission. We agree with plaintiffs on both points.

Our review of the grant or denial of a summary judgment motion is de novo, applying the same standard used by the motion judge under Rule 4:46. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010); Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009). We first consider whether there exists a genuine issue of material facts in dispute, when viewed "in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issues in favor of the non-moving party." See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c). Next, we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 231 (App. Div.), certif. denied, 189 N.J. 104 (2006). The motion judge's conclusions of law are not accorded any deference. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010).

Here, when deposed in the Pennsylvania action, Wild specifically testified:

I saw that there was the other driver . . . was pretty far back, so I ended up trying to get over in that lane. And at the time, the tractor-trailer came and almost cut me off. And that's when I veered back into the other lane, and that's when I hit the car in front of me.

[Emphasis added.]

In responding to a later request for admission in the New Jersey litigation, in which he was joined as a third-party defendant by Liberty Mutual, Wild answered "Yes" to the statement: "To the best of your knowledge the tractor trailer was making a proper lane change at the same time you were attempting to change lanes." Wild responded to an interrogatory asking him, "[w]hat[,] if any[,] action did the tractor trailer do to contribute to the happening of the accident in question?" as follows: "Both the tractor trailer and defendant, Michael Wild[,] were merging into the same lane at the same time and were in each other's blind spot."

These discovery responses were inconsistent with Wild's previous deposition testimony. Of greater significance is that the motion judge accepted these responses as "clarify[ying]" Wild's deposition testimony, although Wild never explained differing responses from Wild. Shelcusky v. Garjulio, 172 N.J. 185, 201 (2002) (requiring the motion judge to "evaluate whether a true issue of material fact remains in the case notwithstanding an affiant's earlier deposition testimony" and to consider, if a contradiction exists with the most recent submission, whether the contradiction has reasonably been explained). This was not done here and for this reason alone, reversal is warranted.

Reversal is required for yet another reason. Defendant misused the discovery tool of requests for admissions. Rule 4:22-1 permits a party to "serve upon any other party a written request for the admission for purposes of the pending action only, of the truth of any matters of fact within the scope of R. 4:10-2." The objective of requests for admissions has long been held to be limited to establishing, for purposes of trial, underlying facts for which there is no real controversy but for which proof may be difficult or expensive. Essex Bank v. Capital Resources Corp., 179 N.J. Super. 523, 532, (App. Div.), certif. denied, 88 N.J. 495 (1981). Moreover, requests for admissions should not be used as a vehicle through which to "establish the ultimate fact in issue." Id. at 533. Nor are requests for admissions intended to elicit opinion responses. Van Langen v. Chadwick, 173 N.J. Super. 517, 522 (Law Div. 1980).

An appellate court will generally defer to a trial court's decisions regarding discovery, and review such decisions under an abuse of discretion standard. See generally In re Subpoena Duces Tecum, 214 N.J. 147, 162-163 (2013); see also Bender v. Adelson, 187 N.J. 411, 428 (2006). That is, the appellate courts "generally defer to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.) (citing Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997)), certif. denied, 185 N.J. 296 (2005).

The motion judge found the request for admission was "not the ultimate fact. The ultimate fact in this case is whether this [is] negligence -- and we look at the record. Where is there negligence that can be assigned to the other vehicle?" Ibid. In Essex Bank v. Capital Resources Corp., the plaintiff bank filed an action against the defendants for conspiring to have plaintiff acquire "home improvement paper" in a nature unacceptable to plaintiff. 179 N.J. Super. at 525. One defendant, a former vice president of the bank, exceeded his authority in acquiring these instruments and entered into contracts on behalf of the plaintiff, which resulted in the plaintiff suffering excessive losses. Ibid. During discovery, the defendant served request for admissions upon the plaintiff, which, among other things, requested that he admit he had authority to acquire the instruments and had not exceeded his authority. Id. at 526. We found the request for admissions were inappropriate because the defendant "attempted to establish as admitted by [the] plaintiff that [the] plaintiff could prove no basis for relief against him." Id. at 532.

Similarly, as phrased in opinion format, the request for admission in this case sought to establish plaintiff could prove no legal basis for relief against defendant. Ibid. Thus, the judge erred in considering this improper request for admission as a basis upon which to grant summary judgment.

We also find significant that both the response to the request for admissions and the answer to the supplemental interrogatory were signed only by Wild's New Jersey attorney. The responses were not certified to or sworn to by Wild himself, and contradicted Wild's sworn deposition in the Pennsylvania civil action. At a minimum, a trial is warranted to explore the apparent discrepancy between Wild's sworn deposition testimony and his New Jersey lawyer's unsworn discovery responses transmitted to Liberty Mutual's counsel on Wild's behalf.

Reversed and remanded for trial. We do not retain jurisdiction.

1 Michael Wild takes no position on this appeal.

2 Reference to plaintiff throughout this opinion refers to Scott Richardson. Donna Richardson's cause of action solely arises out of her per quod claim.