On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Approved for Publication November 21, 1997.
Before Judges Shebell, A.a. Rodriguez and Coburn. The opinion of the court was delivered by Shebell, P.j.a.d.
The opinion of the court was delivered by: Shebell
The opinion of the court was delivered by
Defendants appeal and plaintiff cross-appeals. We affirm on all issues except the denial of plaintiff's motion to amend the judgment to include Sportman's Pub (Pub). Accordingly, we remand for amendment of the judgment.
On May 14, 1991, plaintiff, Charles Mason, Jr., filed a complaint in the Law Division against the Pub, its owner, James S. Shaw, its "bouncer," Bobby Liedtka, and a number of fictitious defendants. Count One alleged negligence on the part of the Pub and referred to "unknown Corporations or persons" as owners and operators. Count Two alleged that Liedtka "negligently assaulted and beat" plaintiff and Count Three alleged that Liedtka intentionally committed a battery upon the plaintiff.
Plaintiff subsequently amended his complaint to assert in separate counts that Bob Seals "did negligently assault and beat" plaintiff, and did commit an intentional battery upon plaintiff. The complaint further alleged that the Pub, owned by Shaw, negligently continued to serve Seals despite knowledge that he was intoxicated and had a propensity for becoming violent when intoxicated.
The Pub, Shaw, and Liedtka filed answers through the firm of Parker, McCay & Criscuolo, P.A. Seals filed an answer and cross-claim for contribution through separate counsel.
Trial of the case was bifurcated. The liability trial took place from June 20 to June 26, 1995. At the Conclusion of plaintiff's case, defense counsel moved for a directed verdict in favor of Shaw and the Pub. Plaintiff urged that there was a jury question as to the Pub's negligence in failing to provide a safe environment. The Judge held there was no evidence from which the jury could conclude that the Pub was negligent, and that jury questions existed solely as to the alleged intentional acts of Liedtka and Seals. Although the jury charge included instruction on whether Liedtka was acting within his scope of employment, no interrogatory regarding the vicarious liability of the Pub was given to the jury.
The jury, in responding to interrogatories, answered that Liedtka committed a battery and that Seals did not. It further reported that the battery was not committed in the exercise of self-defense and that the plaintiff's physical conduct was not a proximate cause of his injuries. After the liability verdict was rendered in open court, the court clerk noted that the jury verdict sheet reflected an assessment of fault of 20% against plaintiff and 80% against Liedtka. The Judge, therefore, instructed the jury to re-deliberate on the matter, directing the jury not to answer question number six on apportionment of fault unless it found in response to question five that plaintiff's physical actions were a proximate cause of his injuries. The original jury verdict sheet had erroneously instructed the jury to answer question six on apportionment of negligence even if it found plaintiff's physical actions were not a proximate cause of his injuries. After deliberation, the jury reported that plaintiff's physical actions were not a proximate cause of his injuries. The jury attributed fault only to Liedtka, and did not engage in apportioning fault.
On November 22, 1995, before the damages trial began, plaintiff moved to have judgment entered against Liedtka and the Pub jointly, severally, or in the alternative. The motion was opposed by the firm of Grossman & Kruttschnitt, who appeared as substitute counsel for the first time on behalf of the Pub and Shaw.
At this point we note that subsequent to the filing of the answer on behalf of the Pub, Liedtka, and Shaw, a reservation of rights letter purportedly was sent by the Licensed Beverage Insurance Exchange, the Pub's insurance carrier, to Liedtka stating he would not be covered if a verdict was entered against him based on his commission of an intentional tort. However, neither Liedtka nor the Pub were provided with separate counsel. At the commencement of the liability trial, defense counsel told the jury in his opening statement that he represented
the bar, the Sportsman's Pub. . . . In addition to the Sportsman's Pub, I represent two of their employees. . . . Bobby Liedtka and . . . James Shaw. Mr. Shaw is the manager of the bar at that time. Mr. Liedtka was security at the bar at that time. So, they're the people that I specifically represent in this case.
At the Conclusion of the liability trial, confirmation of coverage by the Licensed Beverage Insurance Exchange extending to the three Pub-defendants was reaffirmed in the following exchange:
You're Honor, it's my understanding that there, throughout the entire trial, full coverage, full representation and full defense has been extended to Mr. Liedtka because of the nature of his position and the fact that he is an employee. I do not see any coverage issue or subsequent issue that could arise that --
The Court: Otherwise you would have had a conflict of interest, as I pointed out to you before the trial started; is that not correct?
Counsel: I can't see how I would have represented Mr. Liedtka --
The Court: You couldn't have.
Counsel: -- if they weren't going to cover him.
The Court: Exactly. You couldn't have. That was the point that was made at the beginning of the trial.
Counsel: There are no coverage issues that I am aware of, and if I'm the attorney of record trying this case, I think I would know -- I mean, I don't know everything in the world, that's why I'm saying --
The Court: Mr. Borbi, I know you're not doing it intentionally, but you are sniveling, sir. Okay? Those are weasel words, "that I'm aware of." You would have a tremendous conflict of interest and Mr. Liedtka would have a tremendous malpractice suit if he were not covered, because you couldn't have represented him.
Counsel: Correct. He would have been entitled to personal counsel.
The Court: You couldn't have represented his interests --
Counsel: That is correct.
The Court: -- when they're contrary to the Sportsman's Pub.
The Court: And so, your representation is, in effect, provided through the carrier for both.
On January 11, 1996, the plaintiff moved for an order to correct the judgment so that the liability verdict against Liedtka would extend to the Pub based upon respondeat superior. The Judge denied the motion.
The damages trial commenced on January 16, 1996. The jury found plaintiff's damages to be $264,750. On March 20, 1996, Liedtka's motion for a new trial was denied.
A Notice of Appeal was filed on May 31, 1996 by the Grossman firm on behalf of the Pub, Shaw, and Liedtka. A substitution of attorney was subsequently filed by the firm of Bolan Jahnsen asserting representation "for the defendants, Sportsmans [sic] Pub and Robert Liedka [sic]." The brief filed by Jahnsen similarly states it is on behalf of "Sportman's Pub and Robert Liedtka."
On direct appeal, defendants make the following arguments:
Point I-The Court's Failure to Charge the Comparative Negligence of the Plaintiff Constituted Plain Error
Point II-The Trial Court Erred in Permitting Plaintiff's Expert, Lee Miller, M.D., to Issue Opinions for the First Time at Trial as to the Existence, Causation and Permanence of Plaintiff's Injury Where the Plaintiff Had Never Submitted a Report Prior to Trial
Plaintiff cross-appeals asserting 1) the defendants are estopped to deny coverage, 2) the Pub is vicariously liable for the tort of its employee, Liedtka, and 3) the amount of the verdict was manifestly insufficient when measured against the damages visited upon the plaintiff.
On the evening of August 11, 1990, plaintiff was a patron of the Sportsman's Pub in Trenton. An argument broke out between two female patrons, and Liedtka attempted to forcibly remove one of the women. Plaintiff commented to Liedtka: "That's no way to treat a lady, that's no guy." ...