On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4466-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Messano.
Defendant Dependable Auto Shippers, Inc. (DAS) appeals from the July 28, 2006, order entering judgment, after a jury trial, in favor of plaintiff James Byrnes in the amount of $93,000, and dismissing all claims and cross-claims against co-defendant Billion BMW, Inc. (Billion). Plaintiff cross-appeals from those portions of the order dismissing his claims against Billion, as well as the September 8, 2006, order that denied his request for counsel fees. We have considered the arguments raised by the parties in light of the record and applicable legal standards. We reverse and remand the matter for further proceedings consistent with this opinion.
We recite the relevant facts from the trial testimony. On October 20, 2002, plaintiff purchased a 2003 BMW 750 Li for $82,476.17 from Billion, a car dealership based in Sioux Falls, South Dakota. After shopping for the car at local dealerships, plaintiff searched the internet to locate the specific car and options that he desired at a better price, and subsequently had a series of phone conversations with Billion's salesman prior to the purchase. Plaintiff paid $30,000 of the purchase price in cash, and financed the balance by securing a bank loan, amortized by monthly payments of $1,066 over sixty months, beginning in November 2002. Plaintiff testified that as of the trial, in April 2006, he had continued to make his monthly payments on the car loan and approximately $19,200 remained as a balance on the loan.
Billion contracted with DAS, a shipper of high-end automobiles, to transport the car from DAS's agent's facility in Omaha, Nebraska, to DAS's facility in Linden, New Jersey, where plaintiff was to take delivery. On October 29, 2002, Billion transported the car to Omaha, and on November 11, 2002, a DAS truck picked it up for transport to New Jersey. Upon taking custody of the car, DAS issued a bill of lading that limited its liability to $250 unless "valuation coverage" was purchased. Plaintiff had purchased insurance for the car, and it is undisputed that neither Billion nor plaintiff purchased "valuation coverage" from DAS.
The car arrived at the DAS yard in Linden on November 14, 2002. Company policy required that DAS personnel inspect any delivered vehicle and make a notation of any damages. DAS's risk manager, Vernon Allison, testified that the company had no records of any post-shipment damage to plaintiff's new car.
Two days later, plaintiff arrived to pick up the car and observed that it was covered in "mud all over the place," and had marks and multiple dents on its body. The vehicle's armrests were up, cup holders were out, and the cellular phone that was included in the purchase price was stolen. Plaintiff crossed his name off the bill of lading he previously signed upon arrival at the DAS facility, marked "refused" on it, and, pursuant to advice he received from Billion's salesman, Jeff Boe, left to report the incident to the police. He returned two hours later with a police officer who prepared a report documenting plaintiff's complaints about the condition of the car.
Noticing a dirt track at the back of the DAS facility, that the mud on the car appeared similar to that of the dirt track, and the nervous demeanor of the DAS employees responsible for giving him the car, plaintiff surmised that DAS's employees had taken the car for a joyride on the track. A DAS employee, documenting the damage to the car, informed plaintiff that the bill of lading limited DAS's liability.
Plaintiff told Boe that he was rejecting the car because of the damage. Plaintiff testified that Boe told him that Billion would have the car examined by an auto-body repair shop, and, if plaintiff did not want the car after it was repaired, Billion would send him a brand new one. Billion arranged for Garden State Auto Body (GSAB) to remove the car from the DAS yard and repair it. GSAB's written estimate confirmed damage to the rear bumper, trunk lid, and rear quarter panel, a missing taillight, and the need for various cleaning and painting. Additionally, the odometer of the car now registered fourteen miles, seven more than when Billion delivered it to DAS.*fn1 On January 6, 2003, Billion paid GSAB's repair bill of $2388.67.
Plaintiff was unsatisfied with the repairs, however, and Boe authorized additional repairs at an estimated cost of $1014.47. A few weeks after the second round of repairs were complete, plaintiff returned to GSAB to inspect the car. Plaintiff testified that the owner of GSAB, Peter Ciccone, told him that the car needed further work, and that Billion had authorized only some of the work in "piecemeal" fashion. However, when Ciccone testified, he indicated that there were no further problems with the car after the second round of repairs, and that plaintiff did not advise him of any further work he believed needed to be done.
At this point, plaintiff called Billion to advise that he was still refusing to accept the car. Boe had left Billion's employ, so plaintiff spoke to Billion's vice-president, David Billion, who advised that Billion would not discount the car or give plaintiff a new one. Billion testified that if indeed Boe had ever made such a representation to plaintiff, he was unaware of it, and Boe was not authorized to do so. Despite refusing to accept the car or sell it, plaintiff continued making the monthly payments on his car loan because he believed he needed to protect his credit rating.
Plaintiff retained counsel, but negotiations to resolve the dispute were not fruitful. Plaintiff testified that after the second round of repairs, he was not going to accept the car; however, apparently through counsel, and in an attempt to resolve the dispute, plaintiff demanded that Billion pay the additional repair costs and provide him a credit of $8000, an amount ostensibly related to plaintiff's costs in renting a luxury replacement car.
David Billion apparently sought assurance that plaintiff would accept the car before making payment for the second round of repairs, acknowledging that he told plaintiff to pick up the car and then Billion would pay the outstanding balance. He refused to pay the $8000 demand, which he likened in his testimony to "extortion" by plaintiff. After trying to resolve the dispute by seeking contribution from DAS, David Billion ultimately told plaintiff he could pick up the car, or do whatever he liked with it, but that Billion was not paying the $8000, was not taking the car back, and was not providing a new car. David Billion testified that the value of the car as repaired was in the "low 70's [thousands] wholesale" and that it would have sold retail "in the 78[']s [thousands]."*fn2
As of May 2003, the balance for the second round of repairs still remained unpaid and GSAB notified Billion and plaintiff that it would begin assessing a daily storage fee for the vehicle. On June 2, 2004, GSAB again reminded Billion of the unpaid balance and accruing storage fees and also sent plaintiff a similar reminder on August 27, 2004. On June 7, 2005, GSAB filed with New Jersey's Motor Vehicle Commission its notice of intention to sell the BMW as an abandoned vehicle, serving same on plaintiff and Billion. With no response from the parties, Ciccone testified that he eventually sold the car for "$20,000 some  dollars" to cover his repair costs and storage fees.
In the interim, on September 29, 2003, plaintiff filed a complaint against Billion and DAS asserting claims of breach of contract, negligence, legal fraud, spoliation of evidence, breach of express and implied warranties, violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 through -20 (the CFA), and breach of the implied covenant of good faith and fair dealing. In its answer, DAS asserted affirmative defenses that included an allegation that plaintiff had failed to mitigate damages and that his claim for damages was limited by the bill of lading and by statute. DAS also cross-claimed against Billion, seeking indemnity and contribution, and Billion's answer asserted similar cross-claims against DAS.
On September 22, 2004, two weeks after the discovery period ended, DAS moved for summary judgment arguing: (1) that plaintiff could not establish a prima facie case that its employees had damaged the car; or (2) alternatively, that its liability was limited to $250 pursuant to the terms of the bill of lading, or to the amount of plaintiff's "actual damages" under the Carmack Amendment (the Amendment), 49 U.S.C.A. § 14706. Plaintiff also moved for partial summary judgment against Billion. On November 10, 2004, the motion judge denied both applications, and DAS's motion for reconsideration was similarly denied on March 15, 2005.
DAS sought the same relief immediately before trial by way of a motion in limine that was also denied, and trial commenced over three days from April 11 to April 13, 2006. During an extensive charge conference following completion of the testimony, DAS and Billion agreed that if plaintiff prevailed, the judge should determine any allocation of damages between the two. The defendants also agreed that their respective claims for indemnification and contribution should be decided post-trial by the judge. Plaintiff reserved a right to seek counsel fees from the court if he prevailed.
In responding to specific interrogatories posed on the verdict sheet, the jury returned a verdict in favor of plaintiff and found both Billion and DAS had breached their contracts. The jury also found that Billion's subsequent repairs of the car "cure[d] any defect." It further found the car had been damaged while in DAS's custody, that DAS's employees took the car for a joyride, and that DAS was grossly negligent in its custody and care of the vehicle. Finally, the jury determined the car's January 2003 post-repair value to be $75,000, that plaintiff had mitigated his damages, and awarded plaintiff $93,000 in damages.*fn3
Following trial, plaintiff moved for the entry of judgment jointly and severally against Billion and DAS, as well as counsel fees. DAS moved to limit the amount of any judgment against it, arguing that even if its liability were not limited by the bill of lading or the Amendment, it could not be responsible for any damages exceeding the difference between the purchase price of the car and the estimated market value after repairs. DAS noted that after Billion moved the car to GSAB, DAS no longer had control over the vehicle. Billion cross-moved to fix the form of judgment, arguing that the risk of loss passed to plaintiff at the time of delivery to DAS's Linden facility, or alternatively, after it cured any defects by completing the second repairs in January 2003. It contended that the jury's verdict required dismissal of all claims against it.
Relying on the jury's answers to specific interrogatories, the judge agreed that any further risk of loss passed to plaintiff after Billion had affected a cure through repairs, and he entered a judgment of no cause of action against Billion.
Because the jury had found DAS "grossly negligent," and plaintiff had mitigated his damages, the judge refused to set aside or reduce the $93,000 verdict against DAS. The judge reserved ruling on plaintiff's motion for counsel fees and sought further briefing. On July 28, 2006, he entered an order granting plaintiff judgment in the amount of $93,000 against DAS, and entering a judgment of no cause of action against Billion.
On September 8, 2006, the judge denied plaintiff's request for counsel fees and costs. Later that day, plaintiff filed a motion for reconsideration. On September 27, 2006, DAS filed its appeal and plaintiff cross-appealed. On October 6, 2006, the judge dismissed plaintiff's motion for reconsideration, concluding he lacked jurisdiction because the appellate processes had been invoked.
DAS argues: 1) that its pre-trial motions for summary judgment should have been granted; 2) that the trial judge erred in excluding certain photographic evidence; and 3) that the judgment amount must be set aside because a) plaintiff is limited to recovery of his "actual damages" under the Amendment; b) because plaintiff had a duty to accept the vehicle after it was repaired; and c) because the parties had otherwise agreed to limit DAS's damages to those that occurred while the car was in its possession. Plaintiff counters that the pre-trial motions were properly denied, that the evidence was properly excluded, and that the judgment amount was proper and was not subject to any agreement of limitation between plaintiff and defendants.
In his cross-appeal, plaintiff argues the trial judge improperly denied his motion for counsel fees because they were specifically provided for by the bill of lading. He also argues that the judge committed error by dismissing his CFA claim against Billion, and in finding no cause of action against Billion based upon the jury interrogatories. Billion counters by arguing that plaintiff's CFA claim was properly dismissed, that the judge properly entered no cause of action in favor of Billion based upon the jury's findings, and that any agreement it reached with DAS during the litigation did not serve to indemnify DAS for plaintiff's judgment.
We initially dispense with DAS's arguments regarding the denial of its pre-trial motions and the judge's evidence ruling finding them to be of insufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(E). We add these brief comments.
DAS contends its motion for summary judgment on liability should have been granted because plaintiff failed to raise sufficient proof to demonstrate DAS's employees were responsible for the damage to the car. Relying upon Housel v. Theodorididis, 314 N.J. Super. 597 (App. Div. 1998), and Gonzalez v. Ideal Title Importing Co., 371 N.J. Super. 349 (App. Div. 2004), aff'd, 184 N.J. 415 (2005), DAS contends that plaintiff failed to oppose its statement of material facts in support of the summary judgment motion and supplied no information based upon personal knowledge that DAS's employees had damaged the car.
The motion judge properly determined that a genuine dispute of material fact precluding summary judgment existed based upon plaintiff's opposition to the motion, which included documentation of his loan agreement with the bank binding him to make payments for the car, the damage report and appraisal prepared by GSAB, the bill of lading marked with plaintiff's refusal to accept the car because of the damage, and a certification that plaintiff believed DAS's employees caused the damage.*fn4 We find that the information supplied in opposition to the motion, together with the reasonable inferences to be drawn, could have led to the conclusion that the car was damaged while in DAS's control.
Both cases DAS cites are readily distinguishable. In Housel, the non-moving party presented no opposition disputing the moving party's statement of material facts. Housel, supra, 314 N.J. Super. at 602-04. In Gonzalez, the opposition contradicting the moving party's factual assertions was not based upon any personal knowledge. Gonzalez, supra, 371 N.J. Super. at 358. As we noted, plaintiff's opposition, though circumstantial in nature, clearly led to the reasonable conclusion that DAS's employees damaged the car and was based upon his own personal knowledge of the events.*fn5
In the alternative, DAS argued it was entitled to partial summary judgment on damages, contending that any recovery by plaintiff was limited to $250 as set forth in its bill of lading. However, DAS acknowledges in its brief that the limitation would not apply if the carrier was "grossly negligent or intentionally reckless in its care and custody of the" car, citing American Cyanamid Co. v. New Penn Motor Express, 979 F.2d 310, 315-16 (3d Cir. 1992). Therefore, it seems to us that the judge properly denied the motion for partial summary judgment as to damages based upon the rather sparse motion record occasioned by ...