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Iarrapino v. Dalli

March 11, 2009

EDWARD IARRAPINO, PLAINTIFF-RESPONDENT, AND DONNA IARRAPINO, HIS WIFE, PLAINTIFF,
v.
PATRICIA DALLI, DEFENDANT-APPELLANT.
PATRICIA DALLI AND SALVATORE DALLI, PLAINTIFFS-APPELLANTS,
v.
EDWARD IARRAPINO AND NORTHEAST DEVELOPERS, INC. DEFENDANTS-RESPONDENTS.
COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY, INDIVIDUALLY AND AS SUBROGEE OF PATRICIA CASPER DALLI, PLAINTIFF,
v.
NORTHEAST DEVELOPERS, INC., EDWARD S. IARRAPINO AND FARMERS INSURANCE COMPANY OF FLEMINGTON, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket Nos. L-4003-04, L-6425-04 and L-0279-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 10, 2009

Before Judges Parker, Yannotti and LeWinn.

This action arises from an automobile accident that occurred on January 2, 2004, when an automobile driven by Patricia Dalli (Dalli) collided with a truck being driven by Edward Iarrapino (Iarrapino). Dalli and her husband, Salvatore Dalli, appeal from a judgment entered by the trial court on January 25, 2008, following a trial on the issue of liability, which states that Dalli is liable for 70% of any damages awarded to Iarrapino and his wife, Donna Iarrapino. The Dallis also appeal from an order entered on February 15, 2008 which denied their motion for a new trial. For the reasons that follow, we affirm.

I.

The subject accident occurred in Edison, New Jersey, on New Durham Road, near its intersection with Talmadge Road. Dalli was driving her automobile north on New Durham Road. She was in the right lane. Dalli stopped at a red light at the intersection with Talmadge Road. To her left, also stopped at the red light, was a tractor-trailer that was being driven by Robert Taylor (Taylor).

When the light turned green, Taylor proceeded north on New Durham Road. Taylor testified that he passed through the intersection at about ten miles per hour. To the north of the intersection, the right lane of traffic on New Durham Road merges into the left lane. Further north on New Durham Road is a driveway entrance to a shopping center. Dalli drove past Taylor on the right and merged in front of his truck.

At about the same time, Iarrapino was driving a pick-up truck south on New Durham Road. He slowed down, put on his turn signal and made a left turn to enter the shopping center. Dalli's car struck Iarrapino's truck on its right side and pushed it about fifteen feet. The front of Dalli's vehicle was wedged under Iarrapino's truck.

The Iarrapinos filed a personal injury action against Dalli, which was docketed as L-4003-04. The Dallis filed a separate complaint against Iarrapino and Northeast Developers, Inc. (Northeast), the owner of the truck that Iarrapino was driving. The Dallis' action was docketed as L-6425-04. The trial court entered an order on November 19, 2004, consolidating the lawsuits.

Thereafter, Commercial Insurance Company of Newark, New Jersey, individually and as Dalli's subrogee, filed a complaint against Northeast, Iarrapino and Farmers Insurance Company of Flemington (Farmers) as Northeast's subrogee. This action was docketed as L-0279-05. Farmers, in turn, filed a counterclaim against Dalli for property damage. By order entered on September 9, 2005, this action was consolidated with the Dalli and Iarrapino lawsuits.

The issue of liability was tried before a jury, which returned a verdict on January 10, 2008, apportioning 70% of the responsibility for the accident to Dalli and 30% to Iarrapino. On January 25, 2008, the trial court entered a judgment in accordance with the jury's verdict. The judgment dismissed the Dallis' complaint in L-6425-04 and Farmer's property damage claim in L-0279-05 with prejudice. The judgment further provided that Dalli would be responsible for 70% of the Iarrapinos' damages, which would be determined thereafter. On February 15, 2008, the trial court entered an order denying Dallis' motion for a new trial.

Thereafter, the damage phase of the case was tried before a jury, which returned a verdict on February 27, 2008, awarding Iarrapino $100,000.*fn1 On March 7, 2008, the trial court entered a judgment in favor of Iarrapino and against Dalli in the amount of $70,000, plus pre-judgment interest in the amount of $9,934.21. The Dallis filed their notice of appeal on March 10, 2008. On March 31, 2008, the trial court entered judgment against Dalli, awarding Northeast $26,266.80 on its counterclaim for property damage. No appeal was taken from the March 31, 2008 order.

In this appeal, the Dallis raise the following arguments for our consideration:

Point I

The Court below erred in failing to declare a mistrial after [Police Officer] Smith effectively informed the jury that he had found Dalli at fault, and in permitting the objectionable lay opinion evidence to be reemphasized during trial.

Point II

The Court erred in permitting [Police Officer] Smith to testify as to his opinion that New Durham Road North was one lane at the point where he found the respective vehicles at the Durham Center driveway entrance.

Point III

The Court erroneously permitted [Police Officer] Smith to testify that it was not appropriate for a vehicle to pass another vehicle on the right where this accident occurred.

Point IV

The Court erred in denying requests for a Rule 104(a) hearing as to whether Iarrapino or non-party tractor-trailer driver Taylor should be permitted to testify that Dalli was speeding.

Point V

The Court erred in permitting Taylor to testify that he observed Dalli's vehicle being ...


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