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Green v. State Farm Insurance Co.


September 19, 2008


On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4257-07.

Per curiam.


Submitted September 8, 2008

Before Judges Carchman and Sabatino.

Plaintiff, Heather Green, appeals the Law Division's order dated December 7, 2007, dismissing with prejudice her uninsured motorist ("UM") complaint against defendant, State Farm Insurance Company ("State Farm"). We affirm.

At about 8:15 p.m. on August 18, 2001, plaintiff was a front-seat passenger in a Chevrolet sedan driven by Kent Link.

The Chevrolet was traveling eastbound on Route 38 in Moorestown. Plaintiff bent down to collect things that had spilled out of her pocketbook onto the car floor. At that moment, Link suddenly applied the brakes to avoid colliding with another vehicle. The other vehicle, according to Link, was attempting to cross two or three lanes of traffic in order to access a right-lane jughandle. Although the two vehicles did not collide, plaintiff was jostled around. She struck her head on the dashboard, and her left elbow hit the console.

Because her head was down when Link applied the brakes, plaintiff did not see the vehicle that had cut them off and caused the near-collision. Link, however, identified the other vehicle as a teal-colored Ford with a Pennsylvania license plate. Link observed that the license plate number was DSL3226, which he immediately notated and called into the police.

As a result of this incident, plaintiff sustained and received treatment for various personal injuries. Consequently, in April 2002, she filed a complaint in the Law Division under Docket No. L-2778-02, seeking compensation for those injuries. Her complaint named several defendants. The main defendant was Melissa A. Mays, who plaintiff contended was the owner and driver of the Ford that negligently caused the near-collision. Paragraph four of Count One of the negligence complaint recited:

As a direct and proximate result of such negligence and careless actions, there occurred a near[-]collision between the 2000 Ford motor vehicle owned by the defendant, Melissa A. Mays, and bearing the PA license tag of DSL3226, and a 1988 Chevrolet operated by defendant, Kent Link.

Plaintiff also named Link as a defendant, contending that he failed to maintain a proper lookout, failed to brake properly, failed to drive at a speed appropriate to the traffic conditions, and was otherwise careless.

The complaint also named two fictitious defendants. One fictitious defendant, "John Doe," was designated as the "driver of the Pennsylvania registered Ford motor vehicle." The other fictitious defendant, "Jane Smith," was described as "the employer or principal of defendant, John Doe driver or Melissa A. Mays," and was included on a theory of respondent superior.

At the time of the near-collision, plaintiff was residing with her parents. She did not own a vehicle but instead was listed as a named insured under a policy obtained by her parents from State Farm. That policy included UM coverage. The Link vehicle, in which she was a passenger, was uninsured.*fn1

Prior to trial, State Farm moved to intervene in the automobile negligence action to protect its interests as plaintiff's UM carrier.*fn2 See Zirger v. General Acc. Ins. Co., 144 N.J. 327, 343 (1996). The Law Division granted that motion, and the case proceeded to trial.

At trial, defendant Mays testified that although she and her Ford were admittedly at the scene of the incident, she was not the driver of the vehicle that cut defendant off. Plaintiff and Link, meanwhile, contended that Mays was indeed the driver of the vehicle that caused the accident.

After plaintiff rested her case-in-chief, the trial judge granted Link's motion for a directed verdict. The judge did so because he discerned no reasonable basis in the proofs to conclude that Link had operated his Chevrolet negligently. This ruling was not only beneficial to Link but also was beneficial to State Farm as the UM carrier, because Link was uninsured.

At the close of all evidence and before the case was presented to the jury, State Farm moved for a directed verdict on the remaining claims implicating its interests. In particular, State Farm's counsel argued that there has been "no testimony or evidence that would allow a reasonable jury to conclude that there was a phantom vehicle involved in this accident." He continued, "[p]laintiff has not presented that [proof of a phantom vehicle] as part of the case as there is no foundation for it."

In response, plaintiff's counsel advised the court:

[PLAINTIFF'S COUNSEL:] . . . The only basis for what happened is what Mr. Link said, because Ms. Green, of course, was not in a position where she could see. Mr. Link saw that a car cut him off and Mr. Link says that the car was Ms. May[s's]. Ms. May[s] says, no, it was not. A car certainly cut him off.

THE COURT: Not necessarily. That could be a total fabrication on his part.

[PLAINTIFF'S COUNSEL:] That I suppose is true, Your Honor, and also it could be that he is correct that a car did cut him off and that maybe he was wrong that it was not Ms.

May[s's] car but another car. My problem is that I can only go with what Mr. Link says. [Emphasis added.]

Given the specific proofs presented at trial, and the parties' diametric positions that either Mays's car cut off Link's car, or it did not, the trial judge declined to allow the jury to "speculate on the issue of a phantom [vehicle]." The judge noted that Link had testified that he had continued to watch the vehicle that had cut him off, as it turned into the jughandle. Link then "immediately went into the jughandle himself and pulled up next to that car." By Link's account, "that was the only car that was . . . there at the time."

Consequently, the judge granted State Farm's motion for a directed verdict.

The case went to the jury against the sole remaining defendant, Mays. Following deliberations, the jury rendered a unanimous verdict determining that Mays was not negligent and not a proximate cause of the accident. This no-cause verdict was thereafter embodied in a final judgment.

Plaintiff did not appeal the adverse final judgment resulting from her automobile negligence action. Instead, she filed a new lawsuit in the Law Division, under Docket No. L-4257-07. In her verified complaint, plaintiff sought to compel State Farm to participate in UM arbitration. In essence, plaintiff abandoned her original contention that Mays caused the accident. Rather, she now contends that a phantom vehicle must have cut off Link's car.

After State Farm answered the complaint, plaintiff filed a motion to compel the appointment of UM arbitrators. In response, State Farm sought to have the new action dismissed. Among other things, it argued that plaintiff is precluded by principles of res judicata from now alleging that a phantom driver caused the Chevrolet's sudden stop and her resulting physical injuries.

The motion was referred to Judge John Fratto, the same judge who had presided over the trial of plaintiff's automobile negligence action. In ruling on the motion, Judge Fratto made the following pertinent observations:

T[h]e [underlying] case was tried before me and [also] -- by way of motion. I dismissed the complaint against Link, and the jury returned a verdict of no cause of action against [Mays]. At the trial the defendant -- or Link testified that [Mays] cut him off, that he followed her to a point where she was stopped and got her license number. Plaintiff now argues that someone cut off Link, and it must be a phantom driver.

No one contradicted Link's testimony, and, therefore, he was dismissed from the case. The jury found that [Mays] did not cut off Link, and were not asked if another vehicle cut off Link. The jury did not accept his story, by their verdict, that he was cut off by [Mays]. It was said -- he said that he followed her by eye, followed the car that cut him off by eye, and it was [Mays]. There was never any contention that it was any other driver that cut him off. [Plaintiff's counsel] argues that, well, someone cut him off. He argued that before and, as [I had] indicated [that is], not necessarily so. It could be a total fabrication by Link.

There is no testimony that there was any other vehicle involved, other than Link and the [Mays] vehicle. I don't think the plaintiff can proceed to trial on the theory that defendant A, who is [Mays], cut him off. Lose on that trial, and then I'll take a different factual position that it was someone else that cut Link off.

Link was a plaintiff's witness. Link testified that it was [Mays]. Link did not testify that there was any other vehicle involved. The jury chose not to accept his testimony. They very well have concluded that it was a total fabrication on his part to justify his coming to a sudden stop.

The motion to appoint arbitrators, therefore, will be denied.

Plaintiff now appeals the dismissal of her second lawsuit. She argues that res judicata and other preclusionary doctrines do not apply to these circumstances, essentially because the involvement of a potential phantom vehicle was never specifically decided by the jury in the first lawsuit. Plaintiff further emphasizes her first complaint did not include a count for a phantom vehicle.

Having considered plaintiff's arguments in light of the applicable law and the record, we affirm the Law Division's dismissal of the present action against State Farm. We do so substantially for the reasons set forth in Judge Fratto's cogent bench decision of November 2, 2007.

The doctrine of res judicata, or claim preclusion, bars the relitigation of claims that were, or which could have been, asserted by the same party against another party in the original action. See generally Brunetti v. Borough of New Milford, 68 N.J. 576, 587-88 (1973); Innes v. Carrasoca, 391 N.J. Super. 453, 488-89 (App. Div. 2007). The preclusionary doctrine of res judicata involves elements that are all present here: common parties, common subject matters, common issues and common evidence, as well as a final judgment rendered in the first action on the merits. See Velasquez v. Franz, 123 N.J. 498, 505-06 (1991); see also Restatement of Judgments (Second) § 19 (1982). Even if a claim is not specifically raised in the first proceeding, it is precluded from being litigated in the ensuing action if there previously was a fair opportunity to have raised it. See Brunetti, supra, 68 N.J. at 587-88, see also McNeil v. Legislative Apportionment Comm'n. 177 N.J. 364, 395 (2003), cert. denied, 540 U.S. 1107, 124 S.Ct. 1068, 157 L.Ed. 2d 893 (2004).

Similarly, the entire controversy doctrine, a concept akin to res judicata, also pertains here. The doctrine discourages piecemeal litigation by requiring litigants to bring all of their related claims against one another in the same proceeding, unless those claims have been specifically reserved and severed by the court at a party's request. See R. 4:30A; Lake Lenore v. Parsippany-Troy Twp., 312 N.J. Super. 409, 427 (App. Div. 1998).

Here, plaintiff had a full and fair opportunity in her first lawsuit to litigate the circumstances and causes of the August 18, 2001 motor vehicle accident. She heavily relied in that endeavor upon the testimony of her vehicle's driver, Link, who steadfastly accused Mays of being the operator of the vehicle who had cut them off on Route 38. She pressed these contentions not only against Mays but also against State Farm, which was a party to the action as a result of its intervention. Although she was free to do so, plaintiff advocated no alternative theory to the jury, i.e., that the Chevrolet was cut off by some other vehicle instead of the Ford owned and driven by Mays. No proofs in support of such a phantom car theory were ever adduced. As plaintiff's counsel admitted to Judge Fratto, "[t]he only basis for what happened [at the accident scene] is what Mr. Link said." (Emphasis added).

We have no difficulty in making plaintiff bear the natural consequences of her tactical decision to, in effect, place all of her eggs in Link's basket at the first trial. Plaintiff did not appeal the adverse judgment. She should not be allowed now to shift her theory of the case belatedly to her advantage.

State Farm is entitled to repose. One of the recognized purposes of its intervention as a UM carrier is to achieve efficiency and to avoid relitigation. Zirger, supra, 144 N.J. at 340-41; see also Parks v. Colonial Penn Ins. Co., 98 N.J. 42, 47-48 (1984) (noting the "salutary goals" of avoiding relitigation in the UM context). It is immaterial whether State Farm was dismissed from the first action as the result of a judge's ruling or as the result of a jury verdict. Either disposition represents a final adjudication on the merits.

Plaintiff made no attempt in the first action to have the court reserve a potential phantom vehicle claim for a later day. Moreover, even if such a claim had been properly reserved, the record is devoid of any third-party eyewitnesses who would support it factually. The trial court correctly barred plaintiff from conducting a re-run of the case, on a theory predicated upon sheer speculation.


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