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Avis Rent-A-Car, Inc. v. Cooper

Decided: May 19, 1994.

AVIS RENT-A-CAR, INC., PLAINTIFF-APPELLANT,
v.
DOUGLAS COOPER, DEFENDANT-RESPONDENT.



On appeal from the Superior Court, Law Division, Essex County.

Before Judges J. H. Coleman and Thomas.

Coleman

The opinion of the court was delivered by COLEMAN, P.J.A.D.

This is an appeal by Avis Rent-A-Car, Inc. (Avis) from a judgment dismissing its complaint without prejudice. The issue raised is whether telephone depositions taken by Avis of its expert, one of its management employees and another potential witness should have been admitted as substantive evidence to prove Avis's case.

Defendant Douglas Cooper, a resident of New Jersey, rented a 1989 Nissan car from Avis on January 29, 1989, in Honolulu, Hawaii. The car was damaged while in defendant's possession. Avis instituted the present litigation seeking to collect damages.

After instituting this action in New Jersey, Avis obtained an order to take telephone depositions of three witnesses in Hawaii. The order was silent as to whether the depositions could be admitted as evidence at the trial in lieu of testimony.

That order provided:

1. Plaintiff may conduct depositions of Joe Tony Alexander, Joey Chang or other representative of Nissan and T.R. Bongartz, via telephone conference call, to Hawaii in which all counsel may participate and the three deponents shall be duly sworn and testify in the presence of a certified court reporter who shall transcribe said depositions.

2. Plaintiff's attorneys shall give defendant's attorney due notice of the date, time and place of said depositions and furnish him in advance copies of all relevant documents. He may attend in person said depositions and may cross depose deponents, at his election.

3. Said depositions shall be at the initial cost and expense of plaintiff, subject to further order of this Court on due application.

One of the persons deposed, Joe Tony Alexander, was an employee of Avis. He was the Hawaii Zone Manager for maintenance of the cars, and he was familiar with the repairs made on the car defendant rented. T.R. Bongartz was an expert in accident reconstruction and safety engineering. The third witness

deposed, Clayton Uza, was employed as the manager for service operations for Nissan Motor ...


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