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Eagle Insurance Co. v. Fathollahi

July 23, 2009

EAGLE INSURANCE COMPANY, A CORPORATION A/S/O MIGUEL SORIANO AND YECENIA VASQUEZ-CORTEZ, PLAINTIFFS-RESPONDENTS,
v.
MINOOSH FATHOLLAHI, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, L-2621-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 11, 2009

Before Judges A. A. Rodríguez and Payne.

In this subrogation action, plaintiff, Eagle Insurance Company, sued defendant, Minoosh Fathollahi, for recovery of uninsured motorist, personal injury protection, and property damage benefits paid by Eagle after Fathollahi rear-ended a car owned by Eagle insured, Miquel Soraino, and driven by Yecenia Vasquez-Cortez. At the time of the accident, Fathollahi's car was unregistered and uninsured. The accident occurred in Little Ferry, New Jersey, apparently on October 16, 2001. The police report erroneously listed the accident as occurring on October 16, 2002, as did Eagle's complaint. However, the summons bore the 2001 date, and evidence demonstrated that applicable fines were paid by Fathollahi prior to October 16, 2002. Additionally, in a certification dated March 29, 2007 in support of an order to show cause, Fathollahi stated:

Plaintiff's Complaint was filed on June 14, 2004 which is 2 years and 8 months after the motor vehicle accident which occurred on October 16, 2001. I understand that this is beyond the statute of limitations for personal injury actions.

The evidence thus supports the conclusion that the police report and complaint were in error and that the accident occurred in 2001. On that date, Fathollahi was a New Jersey resident. She moved to Florida in December 2001. Nonetheless, Fathollahi has taken the position throughout this litigation that the accident took place in 2002 while she resided in Florida, and that she was not present in New Jersey on October 16, 2002.

I.

This case has a tortured procedural history. As stated, Eagle filed its complaint on June 14, 2004 seeking recovery for moneys expended as the result of an October 2002 accident. Fathollahi answered the complaint and moved for dismissal on the ground of lack of personal jurisdiction, basing her right to relief on the erroneous 2002 accident date. Nonetheless, for reasons that are not clear from the record, a final judgment by default was entered against her, and her jurisdictional motion was not adjudicated. On appeal, we reversed and remanded for consideration of the jurisdictional motion, stating in our opinion that, on remand, Fathollahi could move in the trial court to vacate the default judgment against her pursuant to Rule 4:50-1. See Eagle Ins. Co. v. Fathollahi, No. A-3145-04T5 (App. Div. January 20, 2006).

Following additional procedural steps, in an order dated April 25, 2007, the motion judge entered an order vacating the default judgment, restoring the case to the trial list, directing the Motor Vehicle Commission to reinstate Fathollahi's previously-suspended driving privileges, and permitting Fathollahi to file an answer or otherwise plead by May 15, 2007.

On May 14, 2007, Fathollahi again filed a motion to dismiss the complaint for lack of personal jurisdiction, again relying on a 2002 accident date and her absence from New Jersey at that time. Eagle's counsel neglected to file opposition, and an order was entered dismissing its complaint with prejudice for lack of personal jurisdiction on June 25, 2007. However, the motion judge was apparently skeptical of Fathollahi's position, since he wrote on the order, "although the facts do appear to be confusing the Plaintiff has not provided any opposition."

On July 6, 2007, Eagle moved to vacate the order of dismissal and to reinstate the complaint. In a certification in support of the motion, counsel stated that the file in the matter had been mistakenly closed following a substantial period of inactivity, and as a result, Fathollahi's motion had not been brought to his attention. Eagle's motion was served upon Fathollahi on July 19, 2007, and on July 23, 2007, Fathollahi filed opposition to it. By order dated August 3, 2007, the trial court granted the motion, vacating the dismissal and restoring the complaint to the active trial calendar with a trial date of October 22, 2007. On the order, the motion judge wrote: "This application is granted. It is evident this accident occurred in Oct. of 2001. Defendant, while not technically lying to this court, has played fast and loose."

On August 18, 2007, Fathollahi served interrogatories and a document demand upon Eagle, to which Eagle declined to respond, noting that the discovery requests had been served after the period for discovery had ended. Additionally, Eagle was successful in obtaining an order quashing a subpoena served by Fathollahi on a non-party New York deputy rehabilitator of the American Insurance Management Group, Inc.*fn1

On August 27, 2007, Fathollahi moved for reconsideration of the court's August 3, 2007 order vacating the dismissal entered against Eagle and finding personal jurisdiction to exist. On September 2, ...


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