LIBERTY MUTUAL INSURANCE COMPANY v. DAVID DOIVILUS

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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4635-19

LIBERTY MUTUAL
INSURANCE COMPANY
and CONSTANCE BRAXTON,

Plaintiffs-Respondents/
Cross-Appellants,

DAVID DOIVILUS,

Defendant-Appellant/
Cross-Respondent.
___________________________

Argued November 17, 2021 – Decided December 7, 2021

Before Judges Hoffman, Whipple and Geiger.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-3387-20.

Maximilian J. Mescall argued the cause for
appellant/cross-respondent (Mescall Law, PC,
attorneys; James C. Mescall, of counsel and on the
briefs; Maximilian J. Mescall, on the briefs).
Michael A. Roter argued the cause for
respondents/cross-appellants (Law Offices of Viscomi
& Lyons, attorneys; Michael A. Roter, on the briefs).

PER CURIAM

Defendant David Doivilus (defendant) appeals from the August 28, 2020

Law Division order denying his motion for attorney's fees and sanctions under

N.J.S.A. 2A:15-59.1 and Rule 1:4-8. The underlying action arises from a car

accident involving plaintiff Constance Braxton (Ms. Braxton) and defendant. In

anticipation of a potential claim for bodily injuries by defendant, Ms. Braxton's

auto insurer, plaintiff Liberty Mutual Insurance Company (Liberty Mutual),

filed a Rule 4:11-1 petition seeking pre-suit discovery. Believing the petition

was frivolous, defendant filed a motion for attorney's fees, which the motion

court denied, and defendant appealed. 1 Having reviewed the record in light of

the applicable law, we affirm the denial of defendant's motion for attorney's fees.

We ascertain the following facts from the record. On the morning of

November 1, 2019, Ms. Braxton, a ninety-one-year-old woman, crashed her car

1
Plaintiffs filed a cross-appeal, challenging the motion court's denial of their
application for pre-suit discovery. Plaintiffs dismissed their cross-appeal "as
moot" after defendant filed suit against Ms. Braxton seeking damages for
injuries he allegedly sustained in the subject motor vehicle accident.
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into the back of defendant's car parked on Mitchell Street in Orange Township.

Orange police officers arrived at the scene soon after and obtained the following

pertinent information:

[Defendant] states he was sitting inside of [his] parked
[car] on Mitchell Street (eastbound) which at this time,
[Ms. Braxton's car] turn[ed] into [his car]. [Defendant's
car] sustained damages to left rear bumper/fender due
to the motor vehicle collision, caused by [Ms. Braxton's
car].

[Ms. Braxton] states she was exiting out the Bravos
Supermarket parking lot which at this time, [she] was
making a left turn onto Mitchell Street (eastbound) but
miscalculated her turn and struck [defendant's car].
[Her car] sustained damages to right front
bumper/fender.

Defendant retained counsel, who placed Liberty Mutual on notice

regarding a potential bodily injury claim for his client caused by its insured, Ms.

Braxton. Liberty Mutual responded by emailing defendant's attorney that Ms.

Braxton is "adamant that [defendant]'s car was . . . unoccupied at the time of

impact" and requesting authorization to examine the electronic data recorder

(EDR) in defendant's car. Defendant's attorney responded that defendant had

sold his car to a used car dealership, which Liberty Mutual later discovered had

sold the car to an undisclosed individual.

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In May 2020, Liberty Mutual filed a complaint and a proposed order to

show cause against defendant, pursuant to Rule 4:11-1, seeking "to preserve []

discovery in the likely event that [defendant] files a bodily injury lawsuit in the

future." Liberty Mutual asserted that its insured, Ms. Braxton, "has indicated

that [defendant] was not inside the subject vehicle when it was struck," contrary

to defendant's potential claim he sustained bodily injuries from the accident.

Accordingly, Liberty Mutual demanded defendant "submit to a virtual

deposition . . . [,] provide responses to discovery, including the last known

location of his [car], any treatment records, and answer[s] to . . . Interrogatories"

and that the trial court grant Liberty Mutual authority to subpoena third parties

as necessary.

Upon receipt of the complaint, defendant's attorney sent Liberty a letter

asserting that the petition did not satisfy Rule 4:11-1 and was frivolous, under

Rule 1:4-8, because the allegations underlining the petition were not supported

by any credible factual basis and were hearsay. In response, Liberty Mutual

amended its complaint to add Ms. Braxton as a plaintiff and include an

additional exhibit concerning the EDR.

On July 23, 2020, the counsel for the parties appeared before the motion

judge on plaintiff's petition. After hearing oral argument, the judge issued an

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opinion on the record, finding nothing "expedited here that requires the court's

intervention." He explained,

[T]he police report has . . . all the other information
with regard to this particular vehicle. This is why God
created investigators, and Liberty [] certainly knows
how to get an investigator out to go find this car, track
it down. If it was registered or it's been licensed in any
other state . . . you're going to be able to locate where
this vehicle is.

That's why [plaintiffs] wanted the dep[osition] and the
video and the photograph. If [plaintiffs] want a picture
of what [defendant] looks like, [plaintiffs] [have] his
address, and I'm sure someone can do surveillance . . .
to take a picture what he looks like.

And taking his deposition at this point in time, I don't
necessarily think it's probative of anything. There's no
expedited reason for that. . . . If, in fact, [defendant's
attorney] decides to . . . pursue [defendant's] claim, then
that deposition can be taken in due course.

The judge also noted that Braxton's statement that defendant was not in the car

at the time of the accident was not supported by a sworn affidavit and was

hearsay. Accordingly, the judge denied plaintiffs' petition and issued a

corresponding order the same day.

In August 2020, defendant filed a motion for attorney's fees and expenses,

pursuant to N.J.S.A. 2A:15-59.1 and Rule 1:4-8, alleging plaintiffs' petition was

frivolous. That same day, plaintiffs filed a cross-motion for reconsideration of

A-4635-19
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the July 23, 2020 order, maintaining that defendant's deposition and photograph

were necessary "to get to the heart of the matter at issue: whether [defendant]

was the person [] Braxton saw approach the vehicle she struck on the date of the

accident at issue." Plaintiffs also submitted an affidavit from Braxton detailing

her version of the accident. Braxton averred she was driving down Mitchell

Street — not pulling out of the Bravos Supermarket parking lot — on the

morning of November 1, 2019, when she "travelled under a[n] . . . overpass[,]"

"became blinded by sunlight[,]" and "was in contact" with defendant's car. She

further averred, "[i]mmediately after the impact, [she] peered into the black car

and [saw] there was no one in the vehicle" but "moments later [she] saw a tall,

grown man with dark brown skin . . . g[e]t into the front driver seat."

The motion judge considered the motions and issued two orders on August

28, 2020. The first order denied defendant's motion for attorney's fees, stating

"[Ms. Braxton] has supplied sworn evidence that [defendant] was not in the

vehicle at the time of the accident; [a]s such, there is a factual basis for

[plaintiffs'] lawsuit and therefore this action could not be considered frivolous."

The second order denied plaintiffs' motion for reconsideration, stating "there is

no showing by [plaintiffs] of any facts or law that this [c]ourt overlooked or as

A-4635-19
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to which it has erred." Defendant now appeals from the order denying his

motion for attorney's fees.

II.

On appeal, defendant contends the trial court erred in denying his motion

for attorney's fees, offering multiple arguments to demonstrate how plaintiffs'

petition was frivolous. We review the denial of attorney's fees under an abuse

of discretion standard. Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 386

(2009). An abuse of discretion occurs where the trial court's decision is "'made

without a rational explanation, inexplicably departed from established policies,

or rested on an impermissible basis.'" Iliadis v. Wal-Mart Stores, Inc., 191 N.J.
88, 123 (2007) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571

(2002)). Attorney's fees determinations will be disturbed "only on the rarest of

occasions, and then only because of a clear abuse of discretion." Litton Indus.,

200 N.J. at 386 (2009) (internal quotation and citation omitted).

A prevailing party is only entitled to attorney's fees if authorized by

contract, court rule, or statute. Packard-Bamberger & Co. v. Collier, 167 N.J.
427, 444 (2001). The Frivolous Litigation Statute (FLA), N.J.S.A. 2A:15-59.1,

and Rule 1:4-8 seek to deter frivolous litigation and compensate adversely

affected parties. See Toll Bros., Inc. v. Twp. of W. Windsor, 190 N.J. 61, 67

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(2007); LoBiondo v. Schwartz, 199 N.J. 62, 98 (2009). The statute and rule

permit the award of reasonable attorney's fees and litigation costs to a prevailin g

party "if the court determines that 'a complaint . . . of the non[-]prevailing person

was frivolous.'" Ibid. (quoting N.J.S.A. 2A:15-59.1(a)(1)). A complaint is

frivolous if "commenced, used or continued in bad faith, solely for the purpose

of harassment, delay or malicious injury[,]" or if "[t]he non-prevailing party

knew, or should have known, that the complaint . . . was without any reasonable

basis in law or equity . . . ." N.J.S.A. 2A:15-59.1(b)(1) to (2).

We approach requests for attorney's fees under the FLA and Rule 1:4-8

restrictively, because "the right of access to the court should not be unduly

infringed upon, honest and creative advocacy should not be discouraged, and

the salutary policy of the litigants bearing, in the main, their own litigation costs,

should not be abandoned." Gooch v. Choice Entertaining Corp., 355 N.J. Super.
14, 18 (App. Div. 2002).

Defendant first contends the petition was improper because plaintiffs

sought the investigation, not preservation, of evidence, and said evidence was

not at risk of being lost or destroyed. We review a trial court's decision to grant

or deny a pre-action petition pursuant to Rule 4:11 and motion for

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reconsideration under Rule 4:49-2 under an abuse of discretion standard. Rule

4:11-1 "provides a mechanism for parties to obtain pre-litigation discovery."

Johnson v. Grayce Tighe, Inc., 365 N.J. Super. 237, 240 (App. Div. 2003). The

rule exists for a very narrow range of circumstances, specifically "intended for

cases in which there exist[s] a genuine risk that testimony would be lost or

evidence destroyed before suit could be filed . . . ." In re Petition of Hall, 147 N.J. 379, 385 (1997). The rule, however, "was not intended to authorize pre-

suit discovery for the sole purpose of assisting a prospective plaintiff in

acquiring facts necessary to frame a complaint." Johnson, 365 N.J. Super. at
240 (citing Hall, 147 N.J. at 391).

Here, plaintiffs sought defendant's deposition and photograph,

information regarding defendant's car, and subpoena power to depose witnesses

and obtain additional information about defendant's car. Plaintiffs sought

defendant's deposition and photograph when deposing Ms. Braxton, who is

elderly and at risk of being unavailable in the future. In addition, plaintiffs

wanted to find the car because of the "dwindling" possibility that the EDR data

still exists, which might have provided information as to whether defendant was

inside the car at the time of the accident. Though unsuccessful, the petition is

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not devoid of basis in fact and law; the petition ultimately sought evidence which

genuinely could be lost before the suit.

Defendant also contends plaintiffs' petition is frivolous because it seeks a

general subpoena power of unnamed parties, while Rule 4:11-1 requires "the

names and addresses of the persons having control or custody of the documents

or property to be inspected and a description thereof." Defendant maintains the

clear language of Rule 4:11-1 put plaintiffs on notice that this request was

"blatantly improper." While plaintiffs' request for general subpoena power of

unnamed persons does appear beyond the scope of the rule, we discern no basis

to disturb the motion judge's determination that the inclusion of such a request

does not warrant sanctions.

Defendant next contends the petition was frivolous because Liberty

Mutual knew it lacked standing. Rule 4:11-1 requires "that the petitioner

expects to be a party to an action cognizable in a court of this State . . . ."

Defendant correctly notes that if he were to bring suit for his alleged bodily

injuries, Ms. Braxton, not Liberty Mutual, would be named as the defendant.

Defendant further contends Liberty Mutual was on notice that it lacked standing

because of the Law Division's decision in Liberty Mutual Ins. Co. v. Borgata

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Hotel Casino & Spa, 456 N.J. Super. 471 (Law Div. 2017), wherein Liberty

similarly filed a Rule 4:11-1 petition in anticipation of a policyholder being

sued.

Borgata hardly puts Liberty Mutual on notice that filing the petition in its

name is "without any reasonable basis in law or equity . . . ." N.J.S.A. 2A:15-

59.1(b)(2). In Borgata, the Law Division acknowledged Rule 4:11-1's

requirements, but determined,

While the better practice would have been to file this
petition in the name of [the policyholder] as he is the
individual who is expected to be a party to an action
under the rule, the court will nevertheless consider the
application on its merits. To dismiss the petition on this
basis would be to favor form over substance and the
petition could readily be amended to reflect [the
policyholder] as the petitioner. Moreover, the petition
was clearly filed to protect [the policyholder]'s interest.

[Borgata, 456 N.J. Super. 475.]

We do not view Borgata as supporting a frivolous litigation claim in the matter

under review. Moreover, plaintiff's counsel filed an amended petition, including

Ms. Braxton, to address the standing issue.

Lastly, defendant contends the petition was frivolous because plaintiffs'

attorneys filed the petition "without conducting any substantive investigation

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into whether the information sought would be destroyed, or conducting research

concerning the factual and procedural requirements of Rule 4:11-1." As noted,

plaintiffs' petition, while unsuccessful, ultimately sought evidence which

genuinely could be lost before the suit and does not support a finding that no

substantive investigation was done into whether the claim was non-frivolous.

Defendant fails to appreciate the highly unusual factual circumstances presented

by this case – an elderly insured who maintains that the vehicle she rear-ended

was empty at the time of the accident. Liberty Mutual reasonably sought to

investigate this accident, before its insured suffered any decline in her physical

or mental health, in light of her advanced age. 2 Ms. Braxton certified that she

has been "diagnosed with a severe cardiac condition[] which required an

implanted heart monitor with defibrillator" and that she "take[s] multiple

medications for high blood pressure . . . ." She expressed "concerns regarding

[her] potential safety given . . . Covid-19," particularly since her heart condition

places her "in the highest risk category for the virus." The record here clearly

demonstrated "a genuine risk that . . . testimony or evidence could be lost or

destroyed before suit is filed." Borgata, at 477.

2
According to the Cleveland Clinic, "as many as half of people 85 or older have
dementia." Dementia, Cleveland Clinic, https://my.clevelandclinic.org/health/
diseases/9170-dementia (last reviewed Nov. 24, 2021).
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Defendant also raises various public policy arguments, which we find

unpersuasive as defendant fails to demonstrate how plaintiffs acted in bad faith

or how their petition lacked any reasonable basis. Accordingly, we find no abuse

of discretion in the trial court's findings and affirm the August 28, 2020 order

denying defendant's motion for attorney's fees.

Affirmed.

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