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Utica Mutual Insurance Co. v. Padded Wagon

March 2, 2009


On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-1479-06.

Per curiam.


Submitted February 3, 2009

Before Judges Winkelstein and Gilroy.

Defendants, the Padded Wagon and Miguel Bermejo, appeal from a June 26, 2008 order entering judgment against them in the sum of $4900. We affirm.

Margaret Seland owned a home in Lake Hiawatha, New Jersey. On September 25, 2004, her home was insured by plaintiff, Utica Mutual Insurance Company. On that date, Miguel Bermejo drove a truck owned by the Padded Wagon down the street where Seland's house was located. The truck struck low-hanging wires that connected Seland's house to the utility pole across the street, pulling the wires, and damaging the siding of Seland's home. Utica Mutual assessed the damages at $5400, and paid Seland $5150, representing the assessed sum less her $250 deductible. Utica Mutual then instituted a complaint for subrogation against defendants, who were served with discovery demands along with the complaint on May 19, 2006. More than a year later, on May 30, 2007, the trial court extended the discovery period until August 20, 2007. The court's order also required defendants to respond to the interrogatories and notices to produce within thirty days.

On July 6, 2007, plaintiff served a notice to produce on defendants, who did not respond. On September 11, 2007, plaintiff filed a motion for summary judgment, or in the alternative, a motion to suppress defendants' answer pursuant to Rule 4:23-5(a)(1), in that defendants had not responded to plaintiff's discovery demands. The following week, the court scheduled trial for December 10, 2007.

On October 17, 2007, two months past the discovery end date, defendants responded to plaintiff's discovery demands. The court was notified of the late responses to plaintiff's discovery demand when defendants filed a late opposition to plaintiff's summary judgment motion.

On November 15, 2007, Judge Rand entered an order granting plaintiff summary judgment, and suppressing defendants' answer. In his statement of reasons accompanying the summary judgment order, the judge addressed defendants' belated response to plaintiff's discovery demands:

The defendants filed a late opposition to this motion, claiming that they have responded to all the discovery demands, and they did serve answers to the Demand for Admissions. This information was sent to counsel on October 17, 2007. They advised plaintiff's counsel that all discovery had been provided, and requested that the instant motion be withdrawn.

The plaintiff filed a late reply, stating that the discovery was provided well past the discovery end date of August 20, 2007, and therefore it would not be accepted. Additionally, since the discovery period is over and trial is set for December 10, 2007, the plaintiff cannot schedule and take depositions. No request for an extension of time has been made, but even if it had been, the defendants have not argued that extraordinary circumstances exist, as required by Rule 4:24-1(c). Finally, the Answers to Interrogatories and Demand for Admissions are uncertified and the signature thereon is illegible. Therefore, they do not comply with the Rules and wouldn't be accepted even if they had been filed on time.

As these submissions were received well after the filing deadline, the Court is not required to consider them in making this decision. However, they have been reviewed and nothing stated therein would change the analysis in this matter.

Thus, having considered and rejected the information in defendants' responses to plaintiff's discovery demands, the court concluded that Bermejo, while acting as an agent of the Padded Wagon, was negligent in operating his truck near the low- hanging power lines; his truck struck the wires and proximately caused damage to Seland's residence. The court further found that defendants' breach of duty resulted in damages to Seland, and ultimately plaintiff Utica Mutual, in the sum of $5400. The court subsequently denied defendants' motion for reconsideration. In rejecting that motion on January 18, 2008, Judge Rand reasoned as follows:

With respect to the inappropriateness of the procedure in this matter, Utica asserts that it was entitled to request and enforce the admissions under Rule 4:10-2(a) and Rule 4:22-2. The information sought clearly fell within the scope of Rule 4:10-2(a), and ...

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