February 14, 2008
MICHAEL MARKOWSKI, PLAINTIFF-RESPONDENT,
JOSEPH P. HUMPHREY, STEVEN SAROSI, AND DENNIS CZARNICKI, DEFENDANTS, AND JOHN J. HUMPHREY,*FN1 DEFENDANT-RESPONDENT, AND ANTHONY BELLINO AND ASHLEY BELLINO, DEFENDANTS-APPELLANTS, ALLSTATE NEW JERSEY INSURANCE COMPANY, PROPOSED INTERVENOR/CROSS-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, L-11-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 24, 2008
Before Judges Axelrad, Payne and Sapp-Peterson.
Defendants, Anthony and Ashley Bellino, appeal from a judgment entered against them imposing ten percent and eight percent liability, respectively, on a judgment in the total amount of $5.2 million arising from an assault on plaintiff, Michael Markowski. On appeal, they argue that the evidence failed to establish that they "had a duty to foresee the assault or that their actions were a proximate cause of it" and that the damages were so disproportionate to the medical evidence that the verdict cannot stand.
Additionally, Allstate New Jersey Insurance Company, which was defending the Bellinos and defendant John Humphrey under reservations of rights, appeals from the denial, as untimely, of its motion to intervene, heard one week after an arbitration in the matter had taken place. We affirm both the judgment and the court's order denying intervention.
Evidence at trial disclosed that Michael Markowski was injured at approximately 4:00 a.m. on New Years Day, 2003, when defendant Joseph Humphrey attacked him with an aluminum baseball bat, causing contusions of both frontal lobes, the right temporal lobe and the left parietal lobe of the brain; a subdural hematoma; a fracture of the right orbital roof; bilateral nasal bone fractures; a temporal bone fracture; lacerations of his scalp; and other injuries that required an eight-day hospital stay and a lengthy period of recuperation and caused permanent damage to Markowski's short-term memory and other neurological functions. Markowski claims, in addition to his other injuries, to have lost the hearing in his left ear, and to have lost his sense of taste and smell.
At trial, testimony was presented to the jury on plaintiff's behalf by a friend of Markowski, Kevin Cheshire; by Markowski; by his mother Kathleen Markowski; by police officers who responded to the scene of the assault; and by plaintiff's medical expert, Dr. Laurence Eisenstein, M.D., a board-certified expert in psychiatry and neurology. None of the defendants was called to testify during plaintiff's case. However, versions of the events, given by John Humphrey, Ashley Bellino and Anthony Bellino in discovery, were read to the jury. Defendants John Humphrey and the Bellinos testified in their own defense.
Evidence at trial was not consistent, and it provided grounds for the jury to conclude that none of the parties was entirely truthful. Testimony disclosed that Markowski, a resident of Eastern Long Island, had traveled to Seaside Heights, New Jersey, with his friend, Kevin Cheshire, in order to celebrate New Year's Eve with his friend, who was dating a young woman who resided in Toms River. After picking up the girlfriend and several others in Toms River, the group drove to Seaside Heights, arriving no later than 11:00 p.m. They then spent the next few hours at two night clubs, drinking and dancing. At some point between 3:00 and 4:00 a.m., Cheshire and his girlfriend returned to Toms River without Markowski, and they went to bed. Cheshire testified that he assumed Markowski, who was having a good time, "was going to call me or I was going to call him or he was going to take a taxi back, vice versa, and then we were going to meet up in the morning or later on that night."
Markowski, who had seen Cheshire leave and expected him to return to the club with his car, was left in Seaside Heights without a ride. His repeated cell phone calls to Cheshire went unanswered. According to Markowski:
I was trying to call [Cheshire] the whole night. It was cold. There was people leaving the bars and everything. There was people in the street and everything. But that was pretty much all I remember.
Markowski testified that he has no recollection of the attack on him or of the events that preceded it.
In the meantime, Dennis Czarnicki, who lived in Seaside Heights, was having a party at a house that he rented with a friend. Among the attendees, at various times, were Joseph Humphrey, an ironworker of approximately six feet in height, weighing 220 pounds, Joseph's brother John (who was known as Jack), Anthony Bellino, and Anthony's eighteen-year-old sister, Ashley Bellino. In deposition testimony, read to the jury, Ashley stated that she had dated Joseph Humphrey, having gone to dinner with him in November 2002, but in her testimony in her own case, she denied a dating relationship.
Although both Ashley and Anthony Bellino denied in discovery taken in the matter that Joseph appeared to be intoxicated when they encountered him at the party, testimony by Joseph's brother Jack indicated that, by 3:00 or 4:00 a.m., Joseph was so drunk that he could not walk straight. The police officer who first saw Joseph after the incident was of the opinion that he had been fighting earlier in the evening, because bruises on his face did not appear "fresh."
As the party progressed, Joseph got into a loud argument with a female attendee, and either voluntarily left or was asked to leave.*fn2 As Joseph left, he roused Jack, who was passed out on a sofa, and Jack accompanied his brother out of the house. According to Jack, as the two were leaving, Joseph stated to him, "let's get out of here, these guys are losers." Jack admitted that Joseph "wasn't in a happy mood at that point." Anthony Bellino confirmed that a dispute had occurred and that it had resulted in "a lot of tension."
Ashley Bellino recalled that, approximately twenty minutes later, while playing cards in the kitchen of the house, she heard yelling outside, looked out the door, and saw Joseph and John "fighting with a bunch of guys," among whom were Markowski and a number of African-American males. Ashley admitted in her deposition that she had not seen Joseph or Jack getting jumped, that the altercation was underway when she first observed it, and that she did not know how it had started. Nonetheless, upon viewing the scene, she "screamed" "John and Jack are getting jumped." She testified: "I didn't tell it to anybody. I just screamed it." In her deposition, Ashley then stated: "And then like everybody came, rushed to the back door to see what was going on."
In connection with the events provoking the fight, Jack gave a statement to Joseph's criminal defense attorney, in which he stated:
I . . . went to a party with my brother, Joseph Humphrey. . . . We left the party around 3:00 a.m. and were walking on the Boulevard intending to call a cab.
My brother Joseph was walking in front of me. He got into an altercation with one white male and one Black male, which turned quickly into a fist fight. I ran up and pushed the . . . Black male away from Joe. Two other Black males arrived and I started fighting with them.
I heard Joe yell, let's get out of here. I looked over and saw Joe's face was bloody. We ran down a side street and they chased us. Ahead of me, I saw six or seven people I knew from the party heading toward us. They had seen what had happened and had come to help us.
Although Jack later claimed that the people attacking his brother Joseph were attempting to rob him of his money and cell phone, Jack could not explain why he had not mentioned these facts earlier to Joseph's criminal defense attorney.
Evidence at trial disclosed that, before leaving the house to aid Joseph and Jack, Anthony Bellino and Dennis Czarnicki had retrieved a bat from Dennis's bedroom; that Anthony, deeming himself faster, had carried the bat outside; and that Joseph had grabbed the bat from him. In a statement given to Joseph's criminal defense attorney, Ashley admitted to knowing, at the time that she left that house, that Anthony was armed with the bat, stating: "A.J., my brother, was ahead of us with a baseball bat." She later denied knowledge of this fact.
What happened next was also controverted. In her statement to Joseph's attorney, Ashley stated:
When we got there, Joe was stumbling to his feet, his eye was swollen, his lip was cut, and he was bleeding from his mouth.
The guys who had beaten him up were yelling at Joe and Jack and us and we were yelling at them. One of the guys was wearing a white T-shirt and tan-colored pants. He was yelling louder than the rest of them. He came toward us. I told him and his friends to go their way and we would go our way and that the police would come.
He continued to come toward us and raised his fist. Joe pushed me out of the way and hit him with a baseball bat.
In her answers to interrogatories, Ashley omitted the statement that Markowski (allegedly, the person in the white T- shirt) had come toward the group from the house. Additionally, she claimed that she had approached him as a "rescuer," stating:
Markowski, who had been fighting with Joe Humphrey, moved back across the street with the other individuals. I ran up to him and I was telling him to get out of the area.
A bat came from behind me striking plaintiff in the side. He collapsed and then I saw Joe Humphrey had the bat.
Defendant Humphrey struck plaintiff four to five times more.
Then, in a third version of the events, the following exchange between Patricia Burke, Markowski's attorney, and Ashley Bellino occurred during the course of Ashley's deposition:*fn3
Q: So, when you approached, was Mr. Markowski and those other people backing away?
Q: Do you have any idea why they were backing away?
A: I think because they saw a group of people coming.
Q: Okay. So, they backed away to where?
A: The Boulevard.
Q: In your interrogatory questions . . . you indicated that the others, you know, moved back across the street, and then you said you ran up to Mr. Markowski.
A: Ran, walked. I was in a -- I just wanted to get him, basically.
Q: Get to him.
A: Get to him, basically.
Q: Okay, So tell me what happened next. You ran up to him and you were telling him to get out of the area?
Q: Tell me what happened next.
A: He -- I don't know what he saw, what Mr. Markowski saw or not, but I was yelling at him. We were face to face.
Q: Okay. Tell me what happened next.
A: Then he looked like he raised his arm like if he were going to hit me or somebody else.
A: And the next thing, I saw a bat come from the side and strike him in the back and I ducked.
According to Ashley, Joseph continued to strike Markowski in the head after he had fallen. Ashley stated: "I saw blood and then I saw something white." When asked to describe the sound of the bat making contact, she responded. "It was just an awful, awful sound. It was like a bat just hitting something hard and just like this hollow sound."
In a pretrial statement, Jack had suggested that Joseph had acted in self-defense after Markowski had attempted to again attack him. However, at trial Jack admitted that he had not seen the final confrontation, and had made up facts in order to protect his brother.
After the attack had taken place, the party-goers ran to the house. Ashley testified "I ran in and I was just crying because I . . . just saw something I never wanted to see in my lifetime." Joe then ran in, bleeding, and Ashley attended to his wounds in the bathroom, where they were located when the police arrived.
Joseph was arrested, and was later convicted of assault and sentenced to five years in custody. He remained confined at the time of the trial. Although he was produced for the proceeding,*fn4 he declined to participate in it, and he was not called as a witness by any party.
In testimony given in their own defense, the events of the night were portrayed as having had racial overtones. Jack testified that he had observed Markowski push Joseph to the ground, and a Black guy trying to punch him, at which point two more Blacks knocked Jack to the ground.
Ashley Bellino testified that, approximately one hour before the attack on Joseph and Jack, she had left the Czarnicki party to investigate a commotion in the street, and she had observed Markowski, in the company of a group of Blacks, having a verbal altercation with two males whom she knew, Steve and Mike Teeple. After the dispute was resolved without a fight, Ashley returned to the house and, later, observed "John and Jack and Mr. Markowski and like a few Black men also jumping Joe and Jack." She testified that, as she ran outside, she noticed Markowski, and she said:
I noticed you from before, you got into an altercation before, leave, go. If this is Seaside Heights, everybody's going to get locked up. You're going to be in trouble. This is Seaside Heights.
Ashley testified that Markowski responded:
I'm part of the Gambino crime family, you guys are all going to pay when I come back here with my family.
Whereupon Ashley testified that she continued to urge Markowski to leave, but that he would not. She testified:
I was trying to break up the situation because, in Seaside Heights, the cops are real sticklers there and, even if you get into an argument, you're going to get arrested. So, I was trying to prevent him from getting arrested to prevent my friends from getting arrested, and just everybody just go your separate ways and have a good night. That was it.
Ashley stated further that, following Joseph's assault with the bat, the arrival of the police, and Joseph's arrest, the Black males who had accompanied Markowski continued to circle the house, preventing the party-goers from leaving. However, none of them called the police. Further, Ashley admitted that, while the police were present in the house, she had never told them that the reason her group had been out on the Boulevard was because Markowski and a group of Black men had assaulted Joe and Jack.
The jury returned a verdict that apportioned liability as follows: Markowski, two percent; Joseph Humphrey, seventy percent; Anthony Bellino, ten percent; Ashley Bellino, eight percent; and Dennis Czarnicki, ten percent. The jury found no liability on the part of Jack Humphrey. Following entry of judgment, a motion for a new trial was made on behalf of the Bellinos, and it was denied. On appeal, the Bellinos' counsel contends, as we previously stated, that the evidence failed to establish that either Ashley or Anthony had a duty to foresee the assault or that their actions were a proximate cause of it. They claim that it would be unfair to impose a duty on them, as innocent bystanders, to protect Markowski from the criminal actions of Joseph Humphrey, which they neither anticipated nor intended.
However, the evidence presented to the jury permitted its members to infer that neither actor could properly be characterized as a bystander. For instance, the evidence supported a conclusion that, by screaming that Joe and Jack were getting jumped, Ashley, without a reasonable basis for doing so, had incited the partygoers, including her brother, to leave the party to defend their friends. The evidence also permitted the jury to conclude that, upon the arrival of the partygoers at the scene, the people involved in the fight separated, and it was only after matters appeared to be resolving that Ashley ran up to Markowski. Further, a basis existed for the jury to reject Ashley's characterization of her confrontation with Markowski as an effort to resolve tensions and to protect him, and to conclude instead that, by screaming in Markowski's face that he should "get out of the area," Ashley in fact revived the confrontation and incited Joseph to attack Markowski with the bat that Ashley knew to be present at the scene, having observed her brother carrying it. Ashley's admission in her deposition that she "just wanted to get him, basically" supports this conclusion.
Additionally, the evidence establishes without question that, upon hearing that Joe and Jack were getting jumped, Dennis Czarnicki and Anthony Bellino went to Dennis's bedroom with the purpose of obtaining a bat, and that Anthony, regarding himself as smaller and faster, took the bat from Czarnicki and carried it outside. Although Anthony testified that his intent was merely to frighten the Humphreys' attackers and to quell the violence, the jury reasonably could have concluded that the bat would not have been brought to the scene unless its use as a weapon was foreseen.
It is clear that a plaintiff cannot recover on a theory of negligence from one who owes him no duty of care. J.S. v. R.T.H., 301 N.J. Super. 150, 154 (App. Div. 1997) (citing Strachan v. John F. Kennedy Mem. Hosp., 109 N.J. 523, 529 (1988)), aff'd, 155 N.J. 317 (1998). "[U]nder our system it is simply not enough to ground liability in the fact that the defendant did not act with reasonable care and that his carelessness caused injury." Taylor by Taylor v. Cutler, 306 N.J. Super. 37, 42 (App. Div. 1997)(citing Weinberg v. Dinger, 106 N.J. 469, 484-85 (1987) and Kelly v. Gwinnell, 96 N.J. 538, 544 (1984)), aff'd in part, 157 N.J. 525 (1999). "To establish liability, the plaintiff must demonstrate that the defendant owes him a duty of care. Ibid.
Further, it is the court's role to determine whether the circumstances alleged, if true, impose a duty upon the defendant and if so, the nature of that duty. J.S., supra, 301 N.J. Super. at 154 (citing Petrillo v. Bachenberg, 139 N.J. 472, 479 (1995) and Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991)). "Ultimately, the determination of the existence of a duty is a question of fairness and public policy." Kuzmicz v. Ivy Hill Apartments, Inc., 147 N.J. 510, 515 (1997). Relevant to the determination whether imposition of a duty is fair is the "nature of the risk, the relationship of the parties, the opportunity to exercise care, and the effect on the public of the imposition of the duty." Ibid.
The Court has observed that foreseeability of the risk of harm "is the foundational element in the determination whether a duty exists," and the "'[a]bility to foresee injury to a potential plaintiff' is 'crucial' in determining whether a duty should be imposed." J.S., supra, 155 N.J. at 337 (quoting Carter Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 194 (1994)). As the Court stated elsewhere:
Duty involves the concept of foreseeability, that is, whether a reasonably prudent person should have anticipated that injury to the plaintiff, or to those in a like situation, would probably result. A legal duty arises to take some action if harm to another is reasonably foreseeable in the event that it is not taken, or to refrain from taking some action if harm to another is reasonably foreseeable in the event it is taken. [Mavrikidis v. Petullo, 153 N.J. 117, 147 (1998) (quoting DeBonis v. Orange Quarry Co., 233 N.J. Super. 156, 164 (App. Div. 1989)).]
And in Clohesy v. Food Circus Supermarkets, 149 N.J. 496 (1997), the Court observed that:
Foreseeability as it impacts duty determinations refers to "the knowledge of the risk of injury to be apprehended. The risk reasonably to be perceived defines the duty to be obeyed; it is the risk reasonably within the range of apprehension, of injury to another person, that is taken into account in determining the existence of the duty to exercise care." [Id. at 503 (quoting Hill v. Yaskin, 75 N.J. 139, 144 (1997) (quoting 57 Am. Jur.2d Negligence, § 58 (1970)).]
As the Court found in J.S.:
"[T]he question whether there is a 'duty' merely begs the more fundamental question whether the plaintiff's interests are entitled to legal protection against the defendant's conduct." Weinberg, supra, 106 N.J. at 481 . . . . The imposition of a duty thus requires an evaluation and a balancing of the conflicting interests of the respective parties. That assessment necessarily includes an examination of the relationships between and among the parties.
Also implicated in this analysis is an assessment of the defendant's "responsibility for conditions creating the risk of harm" and an analysis of whether the defendant had sufficient control, opportunity, and ability to have avoided the risk of harm. [J.S., supra, 155 N.J. at 338-39 (citations omitted).]
Turning to the facts of the present matter, we find that the duties owed to Markowski by Anthony and Ashley Bellino were not duties to warn, see, e.g., J.S., supra, 155 N.J. at 352, to otherwise take active steps to protect Markowski against harm from the actions of a third party, see, e.g., Podias v. Mairs, 394 N.J. Super. 338, 346-48 (App. Div.) (citing W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 46 at 323-24 (5th ed. 1984)), certif. denied, 192 N.J. 482 (2007), or to actively lessen a risk of harm to Markowski by providing security measures. See, e.g., Trentacost v. Brussel, 82 N.J. 214, 222 (1980). Instead, we define the duty applicable to the Bellinos as the duty to refrain from affirmatively acting to substantially exacerbate an already known risk of injury to Markowski and to the other participants in the fight.
We thus distinguish this case from a circumstance, insufficient to support liability, in which the defendants were merely present at the commission of a wrong and failed to object to it. Podias, supra, 394 N.J. Super. at 346. This was not a case involving inaction or the necessity of rescue. It was one in which a jury could conclude both Anthony and Ashley had affirmatively acted in a fashion that increased the risk of harm to Markowski that already existed as the result of the fight, as well as Joseph's known drunken state and bellicosity. Inciting a large group of individuals, many intoxicated, to rush to the scene of a fight, and then involving oneself in the altercation, in a provoking manner, as the parties began to separate, carries an unreasonable and foreseeable risk of harm, as does the act of carrying a weapon such as an aluminum bat to the affray. As an objective matter, we regard it fair to conclude, in light of the risks posed, that conduct of this nature failed to conform to the legal standard applicable to persons in the position of defendants in the present action, and thus a breach of duty could be found to exist.
The Bellinos additionally argue that the evidence was insufficient to support a conclusion that their actions were a foreseeable or proximate cause of injury to Markowski, which they characterize as "a completely unanticipated criminal act," and thus that their potential liability should not have been submitted to the jury. "Foreseeability that affects proximate cause . . . relates to 'the question of whether the specific act or omission of the defendant was such that the ultimate injury to the plaintiff' reasonably flowed from defendant's breach of duty." Clohesy, supra, 149 N.J. at 503 (quoting Hill, supra, 75 N.J. at 143). The law of negligence "does not require the defendant to foresee the exact manner in which the harm may be manifested." Wlasiuk v. McElwee, 334 N.J. Super. 661, 668 (App. Div. 2000). Thus, it was not necessary for Ashley Bellino to anticipate that her "scream" to the partygoers that Joe and Jack were getting jumped would incite her brother Anthony to bring a bat to the melee, or that her intervention after the parties separated would result in Joseph's assault on Markowski. Similarly, plaintiff was not required to prove that Anthony Bellino anticipated that the weapon he brought to the scene would be utilized by another in an attack of the ferocity of that which occurred. Proofs that some foreseeable risk of harm was presented as the result of the Bellinos' conduct was sufficient to create a jury issue. Ibid.; see also Cruz-Mendez v. ISU/Ins. Servs. of San Francisco, 156 N.J. 556, 576 (1999). We therefore affirm the jury's verdict against Ashley and Anthony Bellino.
The Bellinos argue further that the jury's assessment of damages was unsupported by competent evidence, and that the verdict was excessive. They also contest the failure of the trial judge to grant a new trial on this issue pursuant to R. 4:49-1(a) or to grant a remittitur of damages. We disagree with the Bellinos' position.
At trial, Markowski's mother, Kathleen, testified that, when she, her husband, and her daughter arrived at Jersey Shore Medical Center during the afternoon of January 1, 2003, Michael was in intensive care, intubated, and in a medically-induced coma as the result of the injuries to his brain. He remained unconscious for several days, and was discharged eight days after his admission. At the time of discharge, Markowski made eye contact with his parents and spoke. However, he "wasn't making sense. Things just weren't clear. It was almost like a frightened child that we brought back." In the days after arriving home, according to Markowski's mother, he was in constant pain. "[H]e was just moaning, constant pain, just wrenching pain. Not talking." As time progressed, Markowski complained that he couldn't hear - a symptom his mother could verify - and that he had a ringing in his ear. Additionally, he experienced difficulty with balance. Consultations with doctors were limited by the family's finances and the conditions of their medical insurance.
Markowski's mother testified that she took her son to see neurologist Dr. Hamovic shortly after Markowski's discharge from the hospital, and again in August, 2003, at which time he was still complaining about his head pain. At the time of trial in October 2006, Markowski continued to complain of headaches.
When asked about Markowski's behavior, his mother testified that, since his injuries, he became frustrated with his inability to function normally, that he "gets depressed," and that his personality had changed. Additionally she testified that, although her son was never a good student, his ability to learn had been severely affected by the attack. She testified, as well, to Markowski's continued lack of balance and the effect it had on potential employment.
Markowski, likewise, testified to an extended period of recuperation, the pain that he endured, and his balance problems, lack of hearing in his left ear, lack of smell and lack of taste. He stated that he had been unable to qualify for a position as an electrician because of his lack of balance, and that other employment opportunities had been foreclosed for the same reason. Although he continued in college, Markowski testified to an inability to concentrate, and his need to resort to tutoring in order to pass his courses.
Further testimony with respect to damages was presented by Dr. Eisenstein. Although the doctor performed no psychological or neurological testing, he described the significant injuries that Markowski had sustained, and after being informed of Markowski's short-term memory problems, he concluded that, three years after the attack, Markowski had likely reached the full extent of his recovery.
The defense presented no expert testimony, and the descriptions given by Markowski and his mother regarding the effects of his injuries went largely uncontroverted.*fn5
Although we agree that the medical proofs presented at trial were not extensive, we nonetheless conclude that they were sufficient, when combined with testimony provided by Markowski and his mother, to support the jury's verdict of $5.2 million in damages.
Determining just compensation for an accident victim, particularly when the damages are not susceptible to scientific precision, as in the case of pain and suffering damages, necessarily requires a high degree of discretion. That is so because there is no neat formula for translating pain and suffering into monetary compensation. Although the "measure of damages is what a reasonable person would consider to be adequate and just under all the circumstances," reasonable people may differ on what is fair compensation in any particular case. [Johnson v. Scaccetti, 192 N.J. 256, 279-80 (2007) (citation omitted).]
For that reason, juries must be given wide latitude in their deliberations on damages and "'[t]he judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion.'" Id. at 281 (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977), quoting Dolson v. Anastasia, 55 N.J. 2, 6 (1969)). "A trial court should not order a new trial or remit a jury's damages award unless it is so clearly disproportionate to the injury and its sequela . . . that it may be said to shock the judicial conscience." Ibid.
In denying defendants' new trial motion, the trial judge recounted at length the evidence presented at trial, including Markowski's testimony regarding his injuries and their impact on his quality of life, as well as the expert testimony of Dr. Eisenstein that, although limited in nature, addressed the nature and permanency of Markowski's injuries. The judge speculated that the jury awarded approximately $100,000 for each year of Markowski's remaining life expectancy, and he determined that such a figure, as well as the jury's apportionment of liability among the parties, was not so shocking as to require either a new trial or a remittitur, a remedy that can exist only upon a determination that a new trial is warranted. Johnson, supra, 192 N.J. at 280-81. We find no basis for disturbing the judge's conclusion in that regard. The multiple, conceded injuries to Markowski's brain were indeed severe, as were their effect upon Markowski's life. And although the jury could have assessed Markowski a greater share of liability for what occurred during the course of the confrontation between Joseph, Jack, Markowski and the others, evidence at trial provided a basis for the jury to conclude that Markowski had a negligible role in provoking the attack that gave rise to the injuries that are the subject of this lawsuit.
We reject the Bellinos' argument that the jury's verdict was based upon their evaluation of insurance potentially available to the parties. Because no evidence relevant to this matter was presented at trial, the Bellinos' argument is premised on speculation, alone. As such, it is insufficient to require a re-trial.
In addition to the arguments raised by the Bellinos, Allstate New Jersey Insurance Company has appealed from the denial of its motion to intervene in the liability action in order to obtain a judgment as to the existence or nonexistence of coverage in connection with or in advance of the trial on liability.
We note in this regard that Markowski's complaint was filed on December 21, 2004. Upon service of the complaint, the Bellinos tendered their defense to Allstate, which agreed to represent them pursuant to a reservation of rights signed on February 11, 2005. An answer was filed on their behalf on March 7, 2005. Thereafter, a motion for substituted service upon Allstate as insurer of Joseph and John Humphrey, which Allstate contested, was granted by order dated August 12, 2005. Following the denial of a subsequent motion for reconsideration, Allstate hired an investigator to locate John Humphrey, who was found to be residing with his parents, under whose policy he claimed to be insured as a resident relative. Although the defense of John Humphrey was not assumed until February 21, 2006 pursuant to a non-waiver agreement, and an answer was not filed on his behalf until March 29, 2006,*fn6 it is clear that Allstate was aware of litigation against the Bellinos raising issues of negligence and intentional conduct in January 2005, and it was aware in July 2005 that it had afforded insurance to the parents of Joseph and John Humphrey.
Allstate's motion to intervene was filed on May 3, 2006 and denied by order dated May 26, 2006, almost a year after notice of the potential liability of all likely insureds was received by Allstate, and after the period for discovery had ended, arbitration had occurred, and a trial in ten weeks was reasonably anticipated. On June 7, 2006, Allstate filed its declaratory judgment action against Joseph and John Humphrey, Anthony and Ashley Bellino and other interested parties. Its motion to consolidate the declaratory judgment action with the pending liability action was denied by order dated July 14, 2006.
We are satisfied from our review of the procedural history relevant to this issue that the motion judge did not abuse his discretion under either R. 4:33-1 or -2 when he found Allstate's motion to be untimely. State v. Lanza, 39 N.J. 595, 600 (1963), cert. denied and appeal dismissed, 375 U.S. 451, 84 S.Ct. 525, 11 L.Ed. 2d 477 (1964); ACLU of N.J., Inc. v. County of Hudson, 352 N.J. Super. 44, 65 (App. Div.), certif. denied, 174 N.J. 191 (2002).
Further, we recognize that "[o]n the issue of timeliness, the court must consider the purpose for which intervention is sought." Warner Co. v. Sutton, 270 N.J. Super. 658, 663 (App. Div. 1994). In the present case, it is clear that Allstate could not have intervened in the liability trial itself to assert its interest in demonstrating lack of coverage as the result of intentional conduct on defendants' part, because such intervention would have placed Allstate and its insureds in irreconcilable conflict. Montanez v. Irizarry-Rodriguez, 273 N.J. Super. 276, 284 (App. Div. 1994); see also Burd v. Sussex Mut. Ins. Co., 56 N.J. 383, 391 (1970).
At oral argument, Allstate's counsel proposed that it would have been appropriate in the circumstances for the coverage action to precede the liability trial. But such a result cannot be achieved by sitting back until the liability trial is imminent and then seeking, by "intervention," to force a determination of coverage - a matter requiring independent discovery - while a resolution of plaintiff's claims of liability languish.
Moreover, Allstate is not precluded from obtaining a determination of the coverage issues that it has raised in the separate declaratory judgment that it has filed in the matter. Ibid. Nor is it bound by the stipulation of the parties, entered in the liability action, dismissing the intentional tort claims against John Humphrey and the Bellinos. Id. at 394; see also Hartford Acc. & Indem. Co. v. Aetna Life & Cas. Ins. Co., 98 N.J. 18, 24 n.3 (1984).
As a consequence, we affirm both the judgment against Anthony and Ashley Bellino and the court's order denying the motion of Allstate New Jersey Insurance Company to intervene in this matter.