This is a personal injury case arising out of a motor vehicle accident which occurred on May 7, 1991, in the southbound lanes
of Route 130 in Florence Township. The plaintiff, Maria Fargas, was a passenger in a car driven by Janet Gorham. That car struck the rear end of a pick-up truck driven by Joseph Graf. Mr. Graf has filed the present motion to dismiss the case as to him. The factual basis of the motion is supplied by answers to interrogatories, deposition passages and the police report.
In his deposition, Mr. Graf testified that a tractor trailer proceeding in front of him stopped for a school bus located on the right shoulder of the road with its stop lights flashing. Although it was not entirely clear at first to Graf why the tractor trailer had slowed and stopped (his view of the bus warning lights being blocked by the tractor trailer itself), as he approached he saw what was happening and was able to stop safely behind the trailer. He stated he was stopped "anywhere from 5 to 10 seconds" before he was hit from behind. Fargas, the plaintiff, also conceded in her deposition that the Graf vehicle was stopped at the time her host driver, Gorham, ran into the rear of it.
Notwithstanding these eyewitness accounts, Gorham's counsel resists Graf's motion by referring the court to interrogatory answers certified by Michael Parlin on behalf of Gorham "upon information and belief." The answer he gave to Question 9 is:
On 5/7/91 at approximately 7:12 a.m. defendant was travelling southbound on Route 130 when suddenly and without warning co-defendant, Joseph Graf, applied his brakes. Defendant immediately applied her brakes but unfortunately impact occurred between the defendant and the co-defendant's vehicles.
The answer did not disclose the source of the information. If it is proper to consider it on this motion, the answer creates a factual question which would in my opinion, be sufficient to defeat the motion. The issue is therefore, should the court consider it?
Michael Parlin, the court is informed, was a representative of the insurance carrier covering the Gorham vehicle. Gorham apparently disappeared after the accident and has not been available to answer interrogatories nor to depose. The submission of Parlin's answers to interrogatories on Gorham's behalf is upon the authority of R. 4:17-4(a), second sentence, which provides:
If a party is unavailable, the interrogatories may be answered by an agent or authorized representative, including a liability carrier who is conducting the defense, whose answers shall bind the party.
At oral argument on this motion the court asked counsel upon what information had the carrier answered the interrogatory and, in particular, whether had it been based upon an oral or written statement taken from Gorham before she disappeared. I reserved decision on the motion pending receipt of that information. I am now advised that Parlin took neither an oral nor written statement from Gorham but based his answer upon ...