On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8976-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Lihotz and Messano.
In this matter, we review whether judicial estoppel precludes plaintiff's Law Division personal injury action, because he failed to disclose the claim in a previously filed bankruptcy petition. The Law Division dismissed plaintiff's suit, with prejudice. We reverse the December 21, 2007 order because the trial court did not give notice to the Chapter 7 Trustee, who on behalf of plaintiff's creditors is the legal owner of the claim. The trustee must determine whether to prosecute the claim against defendant on behalf of the creditors of the debtor's estate or abandon his interest.
Plaintiff Clarence Ruffin worked as a truck driver transporting liquid chemical material. Plaintiff owned his own tractor. He hauled chemicals for Langer Transport Company (Langer). Plaintiff, using his tractor, picked-up one of Langer's tanker-trailers, took the tanker to be filled with chemical-product and delivered it to Langer's customer.
Defendant, Kinder Morgan Liquids Terminal, LLC, owned and operated a chemical storage facility and truck terminal in Carteret. Defendant stored liquid chemicals, such as ethanol alcohol in its tank farm. As a driver, plaintiff would arrive at the terminal to either fill a tanker-trailer or empty a load of ethanol.
Plaintiff was familiar with the Carteret facility. Initially the facility was owned by GATX. Starting in 1968 until the end of 1995, plaintiff hauled loads from the Carteret terminal as many as four times each week. Many areas of the facility had no specific safety precautions to prevent injury when a driver was atop his tanker. Typically, a station might contain a ladder hanging from a rack over the tanker.
In 1998, Union Carbide developed a portion of the Carteret facility owned by GATX. Specifically, new loading racks were built and a "fall protection" system was installed. GATX provided drivers, including plaintiff, with training on how to use the new equipment, which included a demonstration on how to load the tanker and seal the tanks using the caged inspection racks.
Plaintiff described the procedures he consistently followed in this way. After checking-in, the vehicle was driven underneath an inspection rack. A lab technician would inspect the tanker-trailer for quality assurance purposes. The underside of the tanker was checked for evidence of leaks, then the technician climbed an inspection rack adjacent to the tanker, opened the tanker dome and inspected the inside to verify it was clean and ready for a new load.
After inspection, a driver moved the truck to a filling rack to prepare to receive the product. First, the truck was grounded. Second, the dome of the tanker-trailer was aligned with the filler pump. Next, while wearing a hard hat, goggles, boots and cargo jacket, a driver sealed the outlet valves on the bottom of the trailer. Plaintiff described the button seals used for this purpose as "a copper wire with cups that's got to be put through the wash out caps." Once the bottom was sealed, the driver prepared the seals for the top of the trailer. Most tankers required three top valves and the dome to be sealed.
The rack was equipped with a "fall protection" system to aid a driver working atop the tanker in the event he lost footing while sealing the valves. The driver climbed a ladder and walked out over the trailer on a one-foot aluminum catwalk. The copper wire seals would be crimped as proof the load was not subject to tampering. The tanker was filled and the driver drew a sample of the product for inspection. The driver then sealed the dome and delivered the drawn sample to the lab for testing. Once the sample was approved, the driver was free to deliver the load.
Defendant took over the Carteret facility operation from GATX. In late 1995, plaintiff's assignments from Langer changed so he rarely filled tankers at defendant's facility. In 2002, prior to the accident, ...