On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
Before Judges Brody, Stern and Keefe.
The opinion of the court was delivered by
The principal question presented by this appeal is whether an attorney, assigned by an insurance company to defend an insured in a civil case arising out of a motor vehicle accident, may impeach the insured's credibility on the ground that the attorney was surprised by the insured's testimony. We hold that the attorney may not do so; that his conduct was prejudicial to his client; and that the trial Judge's error in permitting the attorney to do so had the capacity to affect the outcome of the trial. Thus, the matter is remanded for a new trial.
Plaintiff, Angelina Montanez, an attorney and wife of defendant Santos Irizarry-Rodriguez, was a passenger in her husband's
vehicle on January 23, 1988 when it left the roadway and struck a utility pole.
Plaintiff brought suit against her husband, Cataldi Buick Dealership, General Motors Company, and several John Doe defendants. The complaint, filed by her partner and brother Teofilo Montanez, alleged that the vehicle "sustained a blow-out of a tire[.]" As to Irizarry-Rodriguez, plaintiff alleged that he was careless and negligent in the operation of the vehicle so as to cause it to leave the roadway. The remaining defendants' liability was based upon an alleged defect in the tire. The product liability claims were dismissed prior to trial either voluntarily or by way of summary judgment. Thus, the matter proceeded against Irizarry-Rodriguez on the negligence claim against him.
The matter was tried on all issues. Plaintiff and one of her treating physicians testified at the trial. After plaintiff rested her case, defense counsel called his client Irizarry-Rodriguez as a witness. Defendant, who expressed some difficulty with the English language, testified through an interpreter.
After establishing that the accident happened on the same road that his wife had previously described in her testimony, the following colloquy took place between defense counsel and defendant:
Q. Okay. Around the time the accident happened, did you hear any unusual sounds around your car?
Q. Okay. And where did the small explosion seem to be coming from?
A. I can't say for sure, because at the time of the explosion, I was already in the woods.
Q. Did you hear any sounds while you were on Moss Mill Road that were unusual to you?
Defense counsel then approached sidebar; announced to the Judge that he was "surprised" by his client's testimony; and requested that he be permitted to treat his client as a "hostile
witness." Counsel advised the Judge that he intended to ask his client questions "pertaining to his bias in this case."
Defense counsel initially advised the Judge that "outside this courtroom" defendant told him that the blow-out had occurred on the roadway, whereas his testimony indicated that he did not hear the "explosion" until he was "already in the woods." Defense counsel also represented that his client had given "an oral statement which was recorded," that the statement was given to a representative of the insurance company, and that he might seek leave to call the insurance representative as a "rebuttal" witness. Later, defense counsel advised the Judge that he had met with his client prior to trial in his office and had interviewed him with the assistance of an interpreter. He revealed that he had tape-recorded that interview.
The trial Judge, accepting at face value counsel's "representation" that defendant's testimony varied from the version he had given the attorney and insurer at an earlier time, permitted defense counsel to treat ...