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Luis S. Cuevas Administrator Ad Prosequendum of the Estate of Lindawati Tan, Deceased v. Chrysler Corporation

June 10, 2011

LUIS S. CUEVAS ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF LINDAWATI TAN, DECEASED, PLAINTIFFS,
v.
CHRYSLER CORPORATION, DAIMLER CHRYSLER CORPORATION, EDI M. BARRERA-GONZALEZ, JOSE LOPEZ, AND THE MIGHTY ONE TRUCKING COMPANY, DEFENDANTS, AND VELOCITY EXPRESS, DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLANT,
v.
NATIONAL CONTINENTAL INSURANCE COMPANY, THIRD-PARTY DEFENDANT-RESPONDENT, AND A CLASSIC PLAN, INC., THIRD-PARTY DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2870-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: May 11, 2011

Before Judges Cuff and Fisher.

On August 24, 2005, defendant Edi M. Barrera-Gonzalez struck a car driven by Lindawati Tan, who died from the injuries sustained in the collision. Defendant Barrera-Gonzalez was driving a truck owned by defendant Jose Lopez, the sole proprietor of defendant The Mighty One Trucking Company (Mighty One). Lopez was hauling medical supplies as an independent contractor for defendant Velocity Express (Velocity).

Plaintiff Luis S. Cuevas, as administrator ad prosequendum of the estate of Tan, filed a complaint against Barrera-Gonzalez, Lopez, Mighty One, Velocity, and Chrysler Corporation and Daimler Chrysler Corporation (collectively Chrysler). In his June 1, 2007 complaint, Cuevas asserted strict liability and negligence claims against Chrysler and negligence claims against Barrera-Gonzalez, Lopez, Mighty One, and Velocity. On January 20, 2009, Velocity filed a third-party complaint against National Continental Insurance Company (NCIC) and A Classic Plan, Inc. (ACP). Velocity alleged that NCIC provided insurance for defendants Lopez and Mighty One and Barrera-Gonzalez; it sought reformation of the policy of insurance to provide the minimum levels of financial responsibility prescribed by federal law. Velocity alleged that ACP negligently obtained a policy of insurance for Lopez and Mighty One that did not conform to the minimum levels of financial security prescribed by federal law.

As the litigation progressed, Barrera-Gonzalez, Lopez, and Mighty One deposited the proceeds of their insurance policy with the court. Cuevas eventually settled his claims against the direct defendants, Velocity dismissed its claims against ACP, but the third-party complaint against NCIC remained unresolved. At the trial of the third-party complaint in June 2010, the trial judge granted third-party defendant NCIC's motion in limine to exclude the expert report on which defendant/third-party plaintiff Velocity intended to rely to support its claims against NCIC. Having excluded the expert report, the judge granted NCIC's motion for a directed verdict and dismissed the third-party complaint. Velocity appeals from the ruling excluding its expert report and from the order denying its motion for reconsideration. We affirm.

We have presented an expanded procedural history to place the discussion and disposition of Velocity's third-party complaint against NCIC in context. Some further discussion of the procedural history is, however, in order.

On April 3, 2009, a judge extended discovery on the third-party action until June 15, 2009. On April 17, 2009, ACP moved for an extension of discovery and it was extended until August 15, 2009. An August 28, 2009 order denied Velocity's motion to extend discovery another ninety days.

On September 14, 2009, approximately one month after the discovery end-date, Velocity provided to NCIC and ACP the expert report on which it intended to rely at trial. Velocity's expert made no reference to NCIC in the substance of his report. Velocity did not file a certification of due diligence when it served the report. See R. 4:17-7.

Velocity then filed a bankruptcy petition seeking reorganization. See 11 U.S.C.A. §§ 1101 to 1174. On December 7, 2009, a bankruptcy judge lifted the automatic stay and permitted liquidation or settlement of the State law claims involving Velocity. On January 5, 2010, Velocity filed a motion to amend its third-party complaint to assert a negligence claim against NCIC, and the next day provided NCIC and ACP with a supplement to the expert report sent to them in September 2009.

Velocity did not amend its answers to interrogatories or file a certification of due diligence with this supplemental report.

R. 4:17-7. The supplemental report concluded that NCIC did not have the proper procedures in place for "the verification of underwriting information," and if it had such procedures, it would have conducted a preliminary audit of Lopez's operations and its insurance obligations.

Meanwhile, ACP had filed a motion to dismiss the third-party complaint for failure to provide discovery in November 2009, that could not be heard until the automatic stay was lifted. Once the stay was lifted, Judge Fernandez-Vina denied this motion without prejudice on January 8, 2010, but extended the discovery end-date until February 15, 2010, and ...


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