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Colli v. DeMarco


May 22, 2008


On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4116-03.

Per curiam.


Argued December 12, 2007

Before Judges Stern, A.A. Rodríguez and C.L. Miniman.

Defendant appeals from a judgment of May 15, 2006, for plaintiff which concluded that defendant was "100% at fault" in this automobile accident case and dismissed defendant's counterclaim based on "no cause of action."*fn1 Defendant also appeals from an order of May 26, 2006, denying his motion to amend the counterclaim, post-judgment, to join the law firm which represented plaintiff.*fn2 The counterclaim asserted that defendant was falsely charged for the accident as a result of which he suffered emotional and personal injuries, "suffered property damage" and was entitled to damages for fraud.*fn3 We affirm both orders.

There is no dispute that defendant's carrier settled the underlying accident case with plaintiff.*fn4 The defendant's counterclaim was thereafter tried at a bench trial on May 15, 2006. Defendant sought $4,500 for damages to his vehicle and damages for malicious prosecution.

The accident occurred around 1:00 in the afternoon on November 10, 2001. Defendant was driving a 1992 Dodge Daytona he had purchased in 1999 for $3,995. He was driving on Elmora Avenue in Elizabeth and approaching the intersection with Chilton Street at a speed noted at between about twenty and thirty-five miles per hour when defendant says he noticed plaintiff's car. Defendant noticed plaintiff's vehicle about 200 feet away coming from the opposite direction, turn left onto Chilton Street and pass "in front over" defendant causing defendant to hit the passenger side of plaintiff's car.

Defendant further testified there was no "bend" in the road from Magie Street where he stopped for a light to Chilton Street. He said he could see from 150-200 feet away that plaintiff's right window was open and that plaintiff was on the car phone. Defendant offered no evidence related to the damage or cost of repairs to his vehicle.

Plaintiff testified that he was in a row of cars, probably around three in number, and turned left onto Chilton Street after an arrow turned green to permit the turn, when he was hit "close to the headlight" on the right passenger side of his car by defendant. Plaintiff had the turn signal on, and was traveling at approximately thirty-five m.p.h. Plaintiff denied being on the phone when the accident occurred, but called his boss "after the accident." Plaintiff was taken to Trinitas Hospital by ambulance and discharged later the same day.

The trial also included a review of the interrogatories and discovery including the medical reports. Plaintiff asserted his car suffered $4,500 in damages. He was cross-examined by defendant at length. The judge declined, however, to permit defendant to call the Civil Presiding Judge and clerk to support some of his procedural claims. This was not a verbal threshold case.

Based on an assessment of credibility and photos of the accident scene, the trial judge found defendant to be "100% responsible" for the accident. In his comprehensive opinion, the judge said, among other things:

[A]fter having had a chance to see the way in which each witness has testified for the last seven hours, and after having had a chance to assess the demeanor and credibility of both witnesses, I simply find Mr. Colli's testimony to be believable.

I find that Mr. DeMarco proceeded through the intersection negligently without making proper observations of oncoming traffic.

I also find that Mr. DeMarco proceeded through the intersection when the light was red for Mr. DeMarco.

Mr. Colli did have a duty to proceed in a reasonable manner and I find in fact that he did proceed in a reasonable manner.

As such, I find that the cause of the accident was not in any way that of Mr. Colli's. I find that Mr. DeMarco was 100 percent responsible for the accident.

Even if the court were to not have reached that conclusion and were to have found Mr. Colli at fault for the accident, there's been a failure of proof of Mr. DeMarco to establish what damages were sustained by the accident. Specifically, by failure to prove I mean to say that there was no evidence, no credible evidence, no believable evidence, no evidence whatsoever on which this court could intelligently articulate exactly what amount of property damages was suffered by Mr. DeMarco to the 1992 Daytona.

Again, I'm finding that the accident was 100 percent the fault of Mr. DeMarco and even if I hadn't found that, I'm finding that Mr. DeMarco has a total failure of proof on establishing what the amount of property damages would be.

Lastly, I would like to also comment that the observations of Mr. DeMarco, that he believed that he says he made on the date of question are simply not worthy of belief.

With respect to the malpractice claim, the judge added:

Concerning Mr. DeMarco's claim of malicious prosecution based on prior civil proceeding, I think the root of the dispute goes to a misunderstanding that perhaps Mr. DeMarco may have concerning how a personal injury lawsuit is to proceed and more importantly how this particular personal injury lawsuit proceed and by that what I mean is this.

Mr. Colli was involved in the accident on the day in question. As a result of that accident, he claimed that he was injured. He didn't have to claim that he was permanently injured, because it was not subject to what's called the verbal lawsuit limitation. All he needed to do is prove that he suffered injury as a result of the collision between the two vehicles. In this case he clearly contended that he suffered back injury at a minimum at various levels including a number of disk bulges as a result of the impact between the vehicles.

The underlying personal injury lawsuit resulted in a payment of money from Mr. DeMarco's insurance company to Mr. Colli. Mr. DeMarco had the right through his insurance company to try that case and to dispute it and to not make any payments and to contest liability and to not voluntarily dismiss the lawsuit. If Mr. DeMarco felt that the suit was being settled without his permission, without his consent, that belief was between his and his lawyer. But his attorney who was hired to represent him and to act on his behalf settled the case acting on behalf of Mr. DeMarco and it was a settlement that Mr. DeMarco paid through his insurance company almost the entire policy limits of N.J. Cure.

I find that there is more than enough credible evidence produced to justify the filing of the personal injury lawsuit by Mr. Colli against Mr. DeMarco in light of a) the way the accident happened in that this court has found that Mr. DeMarco ran a red light and b) that Mr. Colli was injured if by no other means, simply the admission in the possession of Dr. Bercik pointing out that Mr. Colli was in fact injured as a result of the accident.

I do not find that Mr. Colli in any way filed a suit against Mr. DeMarco activated by malicious motive. I do not find that Mr. Colli filed a lawsuit against Mr. DeMarco without just cause in this case, and I also do not find that Mr. DeMarco has suffered any damages as a result of being sued by Mr. Colli. In fact his insurance company has paid voluntarily on its own behalf money to resolve the dispute between Mr. Colli and Mr. DeMarco.

In Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-484, the Supreme Court articulated our scope of appellate review in non-jury civil cases:

Considering first the scope of our appellate review of judgment entered in a non-jury case, as here, we note that our courts have held that the findings on which it is based should not be disturbed unless they are so wholly insupportable as to result in a denial of justice, and that the appellate court should exercise its original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter . . . Findings by the trial judge are considered binding on appeal when supported by adequate substantial and credible evidence . . . It has otherwise been stated that "our appellate function is a limited one: we do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice . . ."

Additionally, a trial judge's credibility findings are entitled to deference since such findings "are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 470 (1999). Based on our scope of review, there is no basis on which to disturb the dismissal of defendant's counterclaim.*fn5

Similarly, there is no basis to disturb the denial of defendant's motion to amend the counterclaim to add plaintiff's counsel as a party, and except for the portion of the opinion related to the failure to attach the counterclaim to the motion to amend, we affirm the denial of the motion substantially for the reasons stated by Judge Fasciale in his oral opinion of May 26, 2006. Plaintiff had a viable cause of action against defendant.


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