On appeal from Superior Court of New Jersey, Law Division, Morris County.
Before Judges Newman, Collester and Lesemann.
The opinion of the court was delivered by: Newman, J.A.D.
Plaintiff, Aetna Life and Casualty Company (Aetna), appeals from the orders granting defendants, Ford Motor Company (Ford Motor) and Simon Motors and Machine Co. (Simon Motors), summary judgment, arguing that the motion Judge erred by dismissing plaintiff's complaint, on the ground of spoliation of evidence prior to the completion of discovery. We affirm.
Aetna is the insurance carrier for Baker Companies, Inc., who acted as the general contractor for a construction project at Eden Lane Condos in Whippany, New Jersey. On October 23, l993, a 1986 Ford Econoline van, which was owned by Imet Mason Contractors (Imet) and operated by an employee of JMR Construction Company, caught fire which spread to three condominium units under construction by Baker Companies, Inc. (Baker). The van was sold to Imet by Barnes Chevrolet. As a result of the fire, Aetna paid Baker $99,553.00, the cost to rebuild, repair and reconstruct the damaged units. At the time of the fire, the van was over eight years old and had in excess of 137,000 miles on its odometer. The van had been serviced in the past by both Pardy Farms Service Center and Simon Motors.
An officer from the Whippany Fire Department reported that the fire had originated in the van and that the exact cause of the fire could not be determined due to extensive fire damage. The officer noted that the "ire from the van had ignited the siding of the Townhouse unit."
State Farm Insurance Company, the insurer of the van, retained Peter Vallas Associates, Inc. (Vallas Associates) to ascertain the cause of the fire. On October 29, 1993, Vallas Associates inspected the van and subsequently issued a report containing the following Conclusion:
Based on the on-scene inspection and reviewed documentation to date, it is the opinion of this investigator that the subject fire occurrence is the result of a fuel line failure within the engine compartment. A fuel hose or related connection failed in the area where the fuel lines connect to the carburetor, possibly due to the overpressurization in the fuel line system. This failure resulted in expulsion of gasoline in the area of the alternator to the open windings which creates many sparks and/or any other sparks that are normally associated with a running vehicle engine. Ignition resulted which, subsequently, caused severe fire conditions that existed.
Due to the extensive damage to the lines in this area, I was unable to identify the exact location of the failure resulting of the fire occurrence.
The report also noted that there were open recall campaigns covering the van for the power steering linkage and for the fuel line.
Vallas Associates issued a supplemental report, dated February 15, 1994, enumerating the van's available repair and maintenance records, noting that some records were destroyed in the fire. The report included an invoice from Simon Motors for work performed approximately seventeen months prior to the fire involving replacement and rebuilding of the engine which included a pulley, air hose, fuel pump motor mount, radiator hose, associated belts, air filter, starter, transmodulator, breather element, freon and a rebuilt motor. Vallas Associates learned from the manager of Simon Motors that the procedure for reassembling a fuel system to the carburetor is to use the pre-existing hoses, lines, clamps and connections.
In a third report dated July 26, 1994, Vallas Associates noted that "urther review of the recall notification indicates that there was an open recall for a fuel line failure from possible overpressurization." The report further noted that repairs and corrections concerning the recall notification were not performed. In this report, Vallas Associates concluded:
Incorporating all the circumstances surrounding this, I would feel that there was a 50/50 chance of one of two scenarios creating the cause of this fire occurrence.
1. There was some form of a fuel failure at the connector for the fuel line and it may or may not have involved the recall. One would think that if the recall notice was issued in 1987, surely a problem that the manufacturer recognized would have developed much earlier than October 23, 1993.
2. It is possible that the overall design of this carburetor with a needle valve assembly may have resulted in a foreign particle or contaminate causing the needle valve to stick in the open position. There may have also been a failure or defect in this carburetor that caused this particular occurrence, allowing fuel to ...