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Agudelo v. Allstate New Jersey Insurance Co.

March 9, 2010

JUAN C. AGUDELO, PLAINTIFF-APPELLANT,
v.
ALLSTATE NEW JERSEY INSURANCE COMPANY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1146-06.

The opinion of the court was delivered by: R. B. Coleman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 8, 2008

Before Judges R. B. Coleman and Sabatino.

Following a four-day trial on the issue of liability alone, the jury determined that plaintiff Juan Agudelo was sixty-three percent at fault for the motor vehicle accident in which Agudelo sustained serious injuries. Alleging that a phantom vehicle was primarily responsible for the accident, Agudelo had sued his insurer, defendant Allstate New Jersey Insurance Company (Allstate) under the Uninsured Motorist (UM) provision of his policy. Before trial, Agudelo and Allstate reached an agreement under which Allstate agreed it would pay the full $100,000 UM policy limit if plaintiff obtained a favorable verdict on liability. As a result of the jury's verdict finding Agudelo more than fifty percent at fault, a judgment of no cause for action was entered and this appeal ensued.

Plaintiff now contends the trial court committed reversible error on three evidentiary rulings. We disagree. Accordingly, we affirm.

First, plaintiff contends that witness statements of Jose Mejia should have been admitted into evidence because he was unavailable under N.J.R.E. 804(a). Second, plaintiff argues that Mejia's written statement to investigating police officers should have been admitted into evidence because it was an excited utterance under N.J.R.E. 803(c)(2). Finally, plaintiff submits that his accident reconstruction experts should have been allowed to review and rely on Mejia's witness statements in accordance with N.J.R.E. 703.

At the outset, we note the limited scope of our review. Trial court evidentiary determinations are subject to limited appellate scrutiny, as they are reviewed under an abuse of discretion standard. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) ("In reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion."); see also Brenman v. Demello, 191 N.J. 18, 31 (2007) ("Because the determination made by the trial court concerned the admissibility of evidence, we gauge that action against the palpable abuse of discretion standard.").

The matter arises in the context of the following facts. Plaintiff Juan Agudelo owned a small trucking company, consisting of two trucks. On May 12, 2004, one of those trucks broke down by Parsippany, New Jersey, near Route 46. Agudelo left his house in Landing about 10:00 a.m. and drove on Route 46 West towards Parsippany to pick up his driver. He was in "no hurry" to get there because the truck had already been towed and the driver was simply waiting for him.

Agudelo testified he approached the entrance ramp for Route 80 East in his sport utility vehicle (SUV), a 2001 Mitsubishi Montero. As he proceeded onto the ramp, there were two yield signs. He noticed no traffic on the ramp at that point, and no traffic behind him, so he yielded and continued to drive. He estimated he accelerated to approximately thirty-five to forty miles per hour as he began merging onto the highway.

At a point when plaintiff was about fifty yards away from the entrance of the highway, he first noticed a white vehicle towards the end of the ramp. There was no indication that the vehicle was stopped; no outside lights, brake lights, or signals of any kind. Plaintiff looked to his left to check for oncoming traffic on Route 80, and observed traffic about a quarter of a mile away in the center and left lanes of the highway. There was no traffic in the right lane where he would be merging, so he continued driving. When he looked forward, he saw that the white vehicle was twenty-five yards in front of him and was stopped, blocking the entrance to Route 80. There was no shoulder on the ramp.

Plaintiff applied his brakes and attempted to maneuver the SUV to the left of the white vehicle. In doing so, he crossed the line on the left side of the ramp and entered onto Route 80 East. He did not collide with the vehicle, but he lost control of his SUV, which flipped four times across Route 80 East and came to rest partially in the left lane, and partially in the left shoulder of the highway. He was ejected and came to rest in the right lane of traffic. He was airlifted to Morristown Memorial Hospital for treatment of his injuries. The white vehicle was never identified.

Two drivers, Jonathan Gerber and Jose Mejia, witnessed the accident. Gerber testified he was driving in the left lane of Route 80 East when he noticed that a truck in the center lane (driven by Mejia) was starting to brake heavily and trying to maneuver. Concerned about being beside a truck braking so heavily, Gerber began to slow his vehicle down and eventually stopped. When the truck veered towards the right, Gerber saw plaintiff's SUV, which looked like it had just been flipped over. The SUV landed on its wheels in front of Gerber in the left lane.

Gerber looked into the vehicle and determined that the windows were blown out and the driver had been ejected. At that point, Gerber took his cell phone and ran to plaintiff, who was lying in the right lane. Gerber waited at ...


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