December 29, 2010
CLARENDON NATIONAL INSURANCE COMPANY, PLAINTIFF-RESPONDENT,
THEODORE CAMERA, JEANETTE CAMERA, MCCLISTER AND DIMICK ASSOCIATES D/B/A CURTIS LANES, GENERAL QUARTER 2, INC., AND LAZAROS MAGCOS A/K/A LARRY MAGCOS, DEFENDANTS, AND BUCKS-MERCER COUNTY MANAGEMENT, INC., D/B/A CURTIS LANES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-167-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 14, 2010
Before Judges Parrillo and Skillman.
Defendant Bucks-Mercer County Management, which operates a bowling alley and bar called Curtis Lanes, appeals from a summary judgment for $62,874.06 in favor of plaintiff Clarendon National Insurance Company reimbursing plaintiff for personal injury protection (PIP) benefits it paid to Theodore Camera and the denial of its motion for reconsideration of that summary judgment. We affirm.
On February 1, 2006, Camera was operating a car owned by his wife and insured by plaintiff. During the early evening hours, Camera consumed a very substantial amount of alcoholic beverages at defendant's bar. Shortly after leaving the bar, Camera drove the car into a telephone pole at a high rate of speed and suffered serious personal injuries that required extensive medical treatment. Camera submitted a claim for PIP benefits to plaintiff, which eventually paid him $62,874.06.
Plaintiff subsequently brought this action against defendant and others*fn1 seeking reimbursement for those benefits under N.J.S.A. 39:6A-9.1, which allows an insurer to seek reimbursement of PIP benefits against certain tortfeasors such as a bar that negligently serves alcoholic beverages to its insured. See State Farm Mut. Auto. Ins. Co. v. Licensed Beverage Ins. Exchange, 146 N.J. 1, 3, 13-15 (1996). Shortly before trial, plaintiff moved for summary judgment in its favor. This motion was supported by Camera's deposition and an expert report by John Brick, which are discussed later in this opinion. After hearing argument, the trial court issued a written opinion, dated July 2, 2009, granting the motion.
On appeal, defendant argues that the trial court should have denied plaintiff's motion for summary judgment because the return date was within thirty days of the date set for trial, in violation of Rule 4:46-1. However, a trial court may hear a motion for summary judgment beyond this deadline "for good cause shown." Although the trial court made no express finding of such good cause, defendant has not alleged it was prejudiced by the court's failure strictly to enforce the Rule 4:46-1 deadline for hearing motions for summary judgment. Moreover, it would be contrary to principles of sound judicial administration to reverse a properly granted motion for summary judgment solely because it was returnable beyond the date provided by the court rules and to remand for the conduct of an unnecessary trial. See R. 1:1-2(a).
Defendant also argues that the trial court erred in granting summary judgment because there were contested material issues of fact that required submission of the case to a jury.
Rule 4:46-2(c) states that summary judgment must be granted when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." In Brill v. Guardian Life Insurance Company of America, 142 N.J. 520, 523 (1995), the Court explained that:
[W]hen deciding a motion for summary judgment under Rule 4:46-2, the determination whether there exists a genuine issue with respect to a material fact challenged requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.
Under this standard, if "the evidence 'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Id. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).
In support of its motion for summary judgment, plaintiff presented Camera's deposition. In that deposition, Camera testified that he had "about five Absolut[s] on the rocks" before driving to defendant's establishment. During the two-hour period he was in defendant's establishment, he had another twelve to fifteen Absoluts on the rocks. The same bartender, named Bob, served him all these drinks. Camera testified that he had a conversation with this bartender in which he indicated that he was driving.
After leaving defendant's establishment, Camera drove about three-and-a-half miles before crashing into a telephone pole. After his apprehension by the police, Camera submitted to two breathalyzer tests, which recorded results of .183% and .195% blood alcohol content.
A few months after Camera's accident, he returned to defendant's bar and again spoke with the bartender, Bob. According to Camera, Bob said to him, "You were wasted that night." Bob also said, "You couldn't walk when you went to the bathroom a few times."
Defendant argues that Camera's account of what the bartender said to him was hearsay. This characterization is correct, but such hearsay is admissible against an employer under N.J.R.E. 803(b)(4) as "a statement by the party's . . . servant concerning a matter within the scope of the . . . employment, made during the existence of the relationship[.]" See Reisman v. Great Am. Recreation, Inc., 266 N.J. Super. 87, 98-101 (App. Div.), certif. denied, 134 N.J. 560 (1993).
Defendant did not present any evidence in opposition to plaintiff's motion for summary judgment that contested Camera's account of what the bartender said to him. Defendant did not present a certification by this bartender or by another representative of defendant alleging that "Bob" was not bartending on the night of plaintiff's accident or did not make the comments attributed to him by Camera.
We also note that although plaintiff took Camera's deposition before it filed this action, defendant had the opportunity to conduct its own deposition of Camera, but failed to do so.
Camera's testimony regarding the extent and obviousness of his intoxication on the night of the accident was corroborated by the expert report of John Brick, an expert in the field of intoxication, who expressed the opinion based on Camera's testimony and his breathalyzer test results that Camera would have reached the point of being visibly intoxicated before the bartender served him his last drink. Defendant did not submit any expert report disputing this conclusion.
Based on all this evidence, we agree with the trial court that no rational trier of fact could find that Camera was not visibly intoxicated when defendant served him alcoholic beverages on the evening of February 1, 2006.
Finally, defendant contends that the trial court erred in denying its motion for reconsideration. That motion was based on defendant's argument that Camera was not a permissive user of the car he was driving at the time of the accident, and therefore, plaintiff should not have paid him the PIP benefits for which it sought reimbursement from defendant. Defendant never raised this argument in its answer, its responses to plaintiff's discovery requests, or its opposition to plaintiff's motion for summary judgment. Moreover, defendant's motion was not supported by a copy of the policy plaintiff issued to Camera's wife, which would have indicated whether a spouse of the named insured who was not a permissive user was excluded from coverage. The trial court denied the motion for reconsideration both because defendant's argument that plaintiff should not have granted PIP benefits to Camera was not raised in a timely manner and because defendant did not present evidence to show that plaintiff had no obligation to pay those benefits. We affirm the denial of defendant's motion for reconsideration substantially for the reasons stated by the trial court.