On appeal from Superior Court of New Jersey, Law Division, Camden County, CAM-L-09534-97.
Before Judges Coburn, Axelrad and Landau.
The opinion of the court was delivered by: Coburn, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this automobile accident case, plaintiffs filed a pretrial motion for discovery of the defendant-driver's statements to his insurer describing the event. The judge denied the motion on the ground that the statements were protected from discovery by the attorney-client privilege and the work-product rule. Subsequently, a jury found both participants in the accident negligent, assigning 70% of the fault to plaintiff Katherine Pfender, a pedestrian, and 30% to the defendant-driver. Plaintiffs appeal. We reverse and remand for a new trial because we are satisfied that the statements were discoverable and because they reveal information that might well have led the jury to a contrary result.
On October 31, 1996, plaintiff Katherine Pfender was injured at a gas station when defendant Joseph A. Torres drove his employer's car over her foot. She testified that after purchasing cigarettes at the island, she looked for approaching cars, saw none, and started walking away. After taking two or three steps, she sensed something coming and at that moment the car's right front tire drove over her left foot. When a station attendant yelled at the driver, he backed up, driving over her foot a second time.
Immediately after the contact, she said that she saw the driver, Torres, speaking on a mobile telephone. Torres testified on direct-examination that he entered the gas station at a speed of "[a]pproximately five miles per hour." He said he was coming to a stop at an island when "something or someone" that he had not previously observed "stepped out and right into my right fender." At that point he was "almost to a complete stop" and he "heard the impact or someone screaming." He immediately put his car in reverse. He denied that he was speaking on his mobile telephone at the time. On cross-examination, Torres admitted that it was possible that he entered the gas station at a speed of ten miles per hour. He claimed that when he saw plaintiff she was at the side of his car.
In summation, defense counsel emphasized three points:
(1) the records for the mobile telephone indicated it was not in use at the time of the accident; (2) there was no evidence that Torres was driving at an undue speed; and (3) the injured plaintiff falsely claimed that she had been standing at the island as Torres pulled into the gas station so that he should have seen her earlier and been able to avoid the accident. In regard to the two latter points, defense counsel's comments included these statements: In fact the only evidence was from him [Torres] that he was driving five, maybe ten miles an hour through this gas station parking lot and as he was pulling up to the pumps. So I would suggest to you that there's no evidence of undue speed.
The next issue . . . with respect to the allegation that Joe was negligent is whether or not he could see her as he was pulling up to the pumps. As you remember, he admitted that he didn't see her until he saw her from his peripheral vision just about the time that she was walking into the right front fender of his car. He didn't see her before that . . . . [I]f she was standing . . . where she says she was standing . . ., Joe Torres could have seen her. Well, Joe admitted that in his testimony. If she was standing there, he could have seen her as he was pulling up to the pumps.
I agree with that. But I will suggest that that's not where she was standing. She wants you to believe that she was standing there so that you'll decide that Joe could have seen her and could have taken some efforts to avoid hitting her when she walked out into his path of travel.
At our request, defense counsel submitted for in camera review the transcripts of two tape-recorded statements given by Torres to an insurance investigator who introduced himself as the agent for the insurer of Torres' employer, defendant Don Rosen Imports, Inc. ("DRI"). The agent did not indicate that he was there to represent or protect Torres.
In the first statement, dated August 8, 1997, Torres acknowledged that the car he was driving was owned by his employer but provided to him for business and pleasure. He said that when he drove into the gas station he was traveling at "5, 10, maybe 15 [miles per hour]." He then said that as he was "coming and proceeding to slow down, I probably at the most was doing 10, 15 MPH, if that." Needless to say, those descriptions of his speed might well be seen as inconsistent with his trial testimony.
The statement also differed sharply from his trial testimony on the question of when and where he first saw plaintiff. He said he first saw her [at] the island, and she turned and stepped down from the island into my path. So she must have just paid for her cigarettes and then proceeded to ...