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Hanks v. McFarlane

August 12, 2009

KIMARA HANKS, PLAINTIFF-APPELLANT,
v.
ANDREW D. MCFARLANE, MARGARET M. DAVEY, DWAYNE JOYNER, AND LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANTS, AND G&G ELECTRICAL SUPPLY, INC.,*FN1 DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6758-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 2, 2009

Before Judges Parker, Yannotti and LeWinn.

Plaintiff appeals from the February 1, 2008 order of the trial court granting summary judgment to defendant G&G Electrical Supply, Inc. (G&G) dismissing the complaint with prejudice. For the reasons that follow, we affirm.

On October 31, 2004, plaintiff was a passenger in a car operated by defendant Andrew McFarlane, and was injured when McFarlane's car was struck by a vehicle owned by G&G. At the time of the accident, the G&G vehicle was being driven by Carl Long, a cousin of Tad B. Chin who was an employee of G&G. Plaintiff filed suit against G&G and other defendants on August 15, 2006.*fn2

On November 20, 2007, G&G filed a motion for summary judgment. In support of that motion, G&G submitted its answers to interrogatories, in which it stated that on the night of the accident, "Chin misappropriated [its] vehicle, which he was to use only for business purposes within the scope of his employment with G&G . . . and in the course of his unauthorized use . . . permitted . . . Long to operate it." G&G also submitted the deposition of Joseph Fusco, G&G's president, in which Fusco acknowledged that Chin made both daytime and nighttime deliveries, and was "allowed to take the vehicle home" when he had late-night deliveries, but was to return it "in the morning." Fusco testified that G&G had a "written policy" prohibiting employees' personal use of company vehicles.

Fusco testified further in deposition that Chin had told Fusco that he was "at a social event," and that "[h]e had had too much to drink so he let his cousin drive the vehicle home." G&G did not submit a certification or any other evidence from Chin regarding his involvement in the accident.

On December 21, 2007, the trial judge denied G&G's summary judgment motion without prejudice, citing the lack of corroborating testimony from Chin regarding his use of the van. The judge stated that without evidence from Chin directly, he had a "double hearsay problem" with Fusco's testimony.

On January 9, 2008, G&G filed a motion for reconsideration. In support of this motion, G&G included a certification from Chin, stating that throughout his employment as a driver for G&G, he "never made deliveries on the weekends," and that he "had been advised by [his] supervisor . . . that [he] was not supposed to use the G&G van on weekends."

Chin certified further that he had taken the G&G van to his home after work on Friday, October 29, 2004, and had then used the van on Saturday, October 30, 2004, to pick up Long so that they could go bowling. Late on the night of the 30th, Long drove the van back from the bowling alley because Chin was intoxicated. Chin acknowledged that he never received permission from his supervisor at G&G to use the van that weekend.

G&G also included a certification from Fusco confirming Chin's statements and further stating that Chin had not used the van for any G&G business during the weekend of October 30-31, 2004.

In opposition to G&G's motion for reconsideration, plaintiff contended that disputed issues remained as G&G had claimed it had a written policy prohibiting the personal use of company vehicles, but had failed to produce any such document. Plaintiff also argued that Chin's credibility was questionable because the police report of the accident identified an individual named Dwayne Joyner as the driver of the van.

The trial judge entered an order on February 1, 2008, granting summary judgment to G&G dismissing the complaint with prejudice. In that order, the judge stated his reasoning as follows: "Chin was not ...


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