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Shubeck v. Ondek

Decided: February 9, 1979.

JOHN SHUBECK AND MILDRED SHUBECK, PLAINTIFFS,
v.
EMIL ONDEK AND JOSEPH BASKO, DEFENDANTS



Griffin, J.s.c.

Griffin

Mrs. Shubeck was a passenger in a car driven by Mr. Basko when, on May 1, 1976, it was involved in a collision with the Ondek car. In a suit started by Mr. Ondek in the Union County District Court based on property damage, a jury found Basko 100% liable and awarded damages of about $1200. The judgment is dated January 18, 1977 and was satisfied by New Jersey Manufacturers Insurance Company, Basko's carrier, which had defended the county district court action through its counsel, Conant & McCreedy, Esqs.

In March 1978 Mrs. Shubeck started a personal injury action in the Superior Court against both drivers, alleging substantial

injuries to her knee, requiring some $17,000 in medical expenses. Basko has crossclaimed against Ondek for contribution.

By motion Ondek seeks a summary judgment dismissing all claims and crossclaims against him, and Shubeck seeks a summary judgment on the issue of liability against Basko. Both rely on res judicata or collateral estoppel.

There seems to be no dispute as to any material fact. As to Shubeck the police report stated, "Bruised right knee and right ankle -- see own doctor." Basko's report to his carrier stated that his passenger, Shubeck, had "Bruised knee." Hence, it is clear that New Jersey Manufacturers had notice of some injury to Shubeck before the county district court case was tried; however, no claim was made by Shubeck until November 1977, about ten months later.

Because of the small amount involved, Conant & McCreedy did not engage in substantial discovery in the county district court case. A young associate handled the trial.

To what extent should the parties to the Superior Court action be bound by the prior county district court jury verdict?

Liability has been completely litigated between the two drivers in the county district court. This is not the situation which existed in Reardon v. Allen , 88 N.J. Super. 560 (Law Div. 1965). In that case plaintiff in the county district court case was nominally Reardon, but actually his insurance carrier was, as subrogee, suing the other driver. It lost. Judge Botter held this result not binding on Reardon in his later personal injury action against Allen.

Without control over the action, without the power to decide when and where the action should be commenced, or if an appeal should be taken from an adverse decision, it would be unreasonable to hold that a personal injury claimant is bound by the adverse result in his insurer's property damage subrogation action. This would be too high a price to pay for collision insurance. [at 567]

In this case the nominal defendant in the county district court property claim suit was ...


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