On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication June 16, 1997.
Before Judges Shebell, Baime and Braithwaite. The opinion of the court was delivered by Shebell, P.j.a.d. Rodriguez, A.a., J.A.D., Dissenting.
The opinion of the court was delivered by: Shebell
The opinion of the court was delivered by
Plaintiffs, Mary DeMary and Louis DeMary, instituted the within action for personal injuries they each suffered as a consequence of Chase Manhattan Services Corporation (Chase) ordering repossession of a leased Mercedes automobile. On September 4, 1991 at approximately 5:30 a.m., plaintiffs were awakened by their son, who told them that someone was taking their car. All three went outside, saw William Rieker (Rieker) attaching the Mercedes to a tow truck, and became very upset. Mrs. DeMary was standing on the passenger side of the truck, asking Rieker to allow her husband to remove his possessions from the car, when Rieker began to back out of the driveway. She had her hands on the truck and when Rieker took off, she held on. The truck accelerated to about twenty-five to thirty miles per hour and was driving "erratically, zigzagging," as she pleaded with him to stop. She said "he came to a sudden jerk and for a second he jerked and then I just fell off." As the tow truck continued to drive away, the Mercedes, in tow, ran over Mrs. DeMary's left ankle, resulting in extensive and permanent injury.
Mr. DeMary testified that when he told Rieker to unhook the car, his voice was raised and the exchange of words was heated. He told Rieker that he mailed the check and offered to let him use the phone to verify it. Rieker refused to determine whether a payment had been made. Mr. DeMary had been trying to get some things out of the car at the time his wife went over to the passenger side of the truck. When he realized his wife was hanging onto the side of the truck as it began moving, Mr. DeMary ran after it. During the course of the chase, he fell on the front lawn and broke his ankle.
Mrs. DeMary was taken by ambulance to St. Joseph's Hospital and was later transferred to Meadowlands Hospital, where she remained for approximately two weeks. There she had an operation where twenty-two screws were implanted in her ankle with some bone grafting. Mrs. DeMary had a second surgery in July 1992 to remove some screws and to add more bone to the ankle. The bone was taken from her hip on each occasion, and resulted in scarring in both areas. A third surgery was performed in March 1994 to remove all of the screws in her ankle. Mrs. DeMary received physical therapy each time after surgery, for approximately four to six months each time. Her orthopedic surgeon testified as to the procedures he used to treat her. He gave his prognosis:
I'm very concerned about the prognosis for the ankle because of the possibility of post-traumatic arthritis. I think in all medical probability, I think this patient's looking at an ankle fusion in the future --
That means making the foot and ankle unit one, to eliminate any pain. Certainly the patient's a relatively young woman so you would not want to do this in the near future, but in my experience that's probably what it will come to.
He also indicated that Mrs. DeMary would never again have full range of motion in her ankle and would have no range of motion if the ankle were fused.
Both Mr. and Mrs. DeMary testified that their marital relationship deteriorated because of the accident, resulting in their separation about two years before trial. Mrs. DeMary moved in with her mother at that time.
Mr. DeMary's broken ankle was placed in a cast for six weeks. At the time of trial, he complained of pain during bad weather. He has not been jogging since the accident, which was an activity he had done frequently. His doctor testified that Mr. DeMary had a "non-displaced fibial fracture." A short leg cast required the use of crutches for six weeks, and Mr. DeMary walked with a cane for a week after the cast was removed. The doctor opined that Mr. DeMary would have a partial permanent disability as a result of his injury, but did not quantify the extent of disability.
A company owned by Mr. DeMary leased the 1990 Mercedes from Chase and Mrs. DeMary was the guarantor of the lease. The company was responsible for the payments on the vehicle, but had been late making payments. In August 1991, Mr. DeMary spoke with someone from Chase regarding the late payments and promised that he would send a check before the end of the month. He assumed that since the Chase representative did not object, this was acceptable to them. Mr. DeMary testified that a check made out by his company was sent to Chase, however, he had no personal knowledge when the last check to Chase was written and mailed. He assumed it was mailed because his secretary told him it had been mailed. He also testified it was common practice to write checks from his own personal account rather than the company account.
His secretary testified that she had conversations with Chase "all the time." She added: "they had my office number and my personal home number." She always spoke with the same Chase employee and would straighten any payment problems out with him. She testified that Mr. DeMary's company was having financial difficulties, but that Chase was one of their priorities and she kept in touch with Chase to let them know when payments were coming. She recalled that in July 1991 she had a telephone conversation with a Chase representative regarding the late car payments and told Chase she was sending a payment then and two more payments would be sent in one to two weeks. She produced a copy of a letter showing that check number 422 for $1,441.25 was sent to Chase on August 30, 1991 at P.O. Box 5210, New Hyde Park, New York, 11042. The check was drawn on Mr. DeMary's personal account, rather than a company account, and was cashed on September 9, 1991.
Chase's representative testified that the DeMary's account had been more than thirty days delinquent four times since the inception of the loan and that $105 in late fees had been assessed during that period. Chase's records indicated that Mr. DeMary's secretary called Chase on July 29, 1991 to advise that she had sent a single payment on July 26 and that she would be sending another payment on August 2. Chase received a payment on August 2, however, it did not bring the account current. On August 16, a letter was sent to Mr. DeMary's company regarding two payments that were in arrears. On August 29, Chase's record of DeMary's account history showed that the collection agent was gathering all of the paperwork and that repossession was being considered. On September 3, 1991, a Chase representative tried to contact the DeMary's at home, but the phone was not working, and Interstate was assigned to repossess the Mercedes.
Chase's agreement with Interstate was described by Chase's representative at trial as essentially the same as with any repossession company. Under the agreement, Chase could review the books and records of Interstate; stop the repossession at any time; require Interstate to maintain liability insurance with an insurance carrier that is satisfactory to Chase and to notify Chase of any material modification of any insurance policy; and require Interstate to obtain Chase's prior written consent before hiring any subcontractors. The Chase representative also testified that Chase was not in the business of repossessing vehicles; did not supply Interstate with tow trucks, personnel, or any other equipment necessary to effectuate the repossession; and did not pay the salaries of the tow truck operators or have the authority to hire or fire the operators. The Interstate tow truck did not display any Chase identification, and Rieker did not tell the DeMary's that he was hired by Chase. Chase employees are forbidden from participating in an involuntary repossession.
The trial Judges *fn1 were called upon to deal with several issues. The first was how to explain to the jury Interstate's lack of further participation in the case after jury selection. Judge Mochary indicated to the jury that
the towing company Interstate and the two employees of that company are no longer in this case. They have been dismissed out by me. You are not to speculate as to why. All you have to know is that it was done by the Court.
Counsel for Chase requested that she be permitted to inform the jury in her opening that Interstate settled the case, but the Judge refused her request.
Next, because the Repossession Agreement between Interstate and Chase contained, as noted, a clause requiring Interstate to obtain insurance that named Chase as an additional insured, a dispute arose as to whether the agreement should be redacted to exclude any evidence of insurance from the jury. The Judge found it should be redacted to prevent the jury from knowing the amount of insurance, but refused to redact the entire insurance provision. Chase also requested that the agreement be redacted with regard to an indemnification provision. After hearing all of the testimony, Judge Harris decided that the indemnification provision could be viewed by the jury as evidence of Chase's control over Interstate.
Chase made a motion for judgment at the close of all of the evidence, asserting that no agency relationship between Chase and Interstate was proven; that if an agency relationship was proven, Rieker was acting outside the scope of his employment; that the repossession was not the proximate cause of the injury; and that the release of an ...