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Nehil v. Ladjack

October 17, 2007

LINDA NEHIL AND JAMES NEHIL, HER HUSBAND, PLAINTIFFS-APPELLANTS, AND AMERICAN POSTAL WORKERS UNION HEALTH PLAN, APPLICANT FOR INTERVENTION,
v.
ROBERT LADJACK, JR., GALLCO ENTERPRISES, INC., AJ JUBA, INC., JULIE SCULLY, KENNEDY INSURANCE COMPANY, INC., ROBERT A. NICOSIA CORP., ARTHUR JUBA, AND R.W.V. LAND & LIVESTOCK SOUTH, INC., DEFENDANTS, AND KENNEDY INSURANCE AGENCY AND GARY FLORCZYK, DEFENDANTS-RESPONDENTS, AND GALLCO ENTERPRISES, INC., THIRD-PARTY PLAINTIFF,
v.
PROFORMANCE INSURANCE COMPANY, THIRD PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-4970-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 11, 2007

Before Judges Coburn, Grall and Chambers.

In this personal injury and wrongful death motor vehicle accident case, plaintiffs settled with some of the defendants, gave stipulations of dismissal with prejudice to other defendants, and proceeded against the only remaining defendants, Kennedy Insurance Agency, Inc., and one of its employees, defendant Gary Florczyk.

The claims arose on May 23, 2003, when defendant Robert Ladjack, Jr., drove a dump truck leased to defendant AJ Juba, Inc. ("Juba"), into a car operated by plaintiff Linda Nehil.

Kennedy and Florczyk had placed insurance on the truck for Juba. Plaintiffs alleged in their complaint that before Juba purchased the insurance, its principal, Arthur Juba, told Florczyk that he would not hire Ladjack as a driver unless his driving record was free of violations. Plaintiffs further alleged that Florczyk agreed to determine whether Ladjack had a safe driving record; and then intentionally or negligently advised Arthur that Ladjack's driving record had no violations when in fact there were numerous violations. Finally, plaintiffs alleged that Arthur permitted Ladjack to drive one of his company's truck in reliance on the misinformation he had received from Florczyk. These defendants obtained summary judgment, and plaintiffs appeals. We affirm.

These are the relevant facts. In late May 2002, Arthur hired Ladjack for Juba to drive a commercial dump truck. At that time, Arthur asked Ladjack if he had a valid driver's license, but he did not ask any questions about his driving record or involvement in accidents. Ladjack had not been involved in any accidents involving personal injury, and his license permitted him to drive commercial vehicles.

Later on, Arthur provided Ladjack's name and driver's license number to Florczyk, who had advised him that the insurance company required Kennedy to obtain and transmit to it a copy of Ladjack's motor vehicle driving record. Florczyk obtained Ladjack's record for the past five years, which experts on both sides agreed was standard in the insurance industry. The record revealed a speeding violation in 1999 (47 miles per hour in a thirty-five mile an hour zone), which resulted in an assessment of two points under the Motor Vehicle Code. The record also revealed that six points were credited to Ladjack, which implied previous moving violations. Finally, the motor vehicle record declared that Ladjack's driver's license was in "Good Standing."

Arthur's depositions contain the following questions and answers on Ladjack's motor vehicle record:

Q: When you hired him [Ladjack], did you check his driving record at all?

A: Yes. His license was given to the insurance company. The insurance company runs an abstract, and they tell me, yes, either keep him, or no, he's no good.

Q: And Gary Florsick (sic) told you it was okay to hire this guy?

A: Yeah, the insurance company said that he had a clean record. He had no accidents. He had no tickets.

Q: Would you have hired this particular driver if you knew he had a number of traffic tickets and suspensions on his license?

A: No.

Q: Why is that?

A: Because I don't believe in hiring anybody who has a blemish on their license. [Emphasis added.]

Q: Do you remember at some point after you asked for the motor vehicle check to be done that Mr. Florczyk called you and said we did the motor vehicle lookup and Ladjack ...


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