July 7, 2011
LIBERTY MUTUAL INSURANCE COMPANY A/S/O THOMAS PERRY, PLAINTIFF-RESPONDENT,
JOSE R. ESTEVEZ AND FLERIDA SANCHEZ, DEFENDANTS-APPELLANTS.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. DC-18223-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 17, 2011
Before Judges Wefing and Baxter.
Defendants Jose Estevez and Flerida Sanchez appeal from a judgment
entered by the trial court following a bench trial.*fn1
Plaintiff has not participated in the appeal. After reviewing
the record in light of the contentions advanced on appeal, we reverse.
On the afternoon of June 15, 2006, Thomas Perry was involved in a multi-vehicle accident on Route 17 in Hackensack. He testified that as he was driving, his car was struck in the rear and propelled forward into another vehicle. Perry was insured through Liberty Mutual Insurance Company, which declared his car a total loss. Liberty Mutual then began this subrogation action, seeking to recover from Sanchez the sums it had paid to Perry.
At trial, Liberty presented the testimony of its insured, Perry, an officer who responded to the scene, Salzano, and its adjuster, Borkes. Perry testified that he was driving in the middle lane of Route 17 at approximately fifty miles per hour when he was struck in the rear. He was unable to identify the vehicle or driver who struck him. Salzano testified that four vehicles were involved in this accident but never identified the other two vehicles or the roles each played. He estimated that the vehicle that struck Perry was traveling approximately fifty miles per hour at the time of the accident but admitted he had no training in accident reconstruction. His estimate was based solely upon the extent of the damage to the Perry car. He admitted he had no knowledge of the distance between the Perry car and the car into which he was pushed. Borkes testified that the carrier paid Perry $18,801 for his car, and received $6460 when it sold it. It also received a payment of $7,630.83 from Allstate Insurance. The record does not indicate which driver Allstate insured, although we infer that it must have insured defendant Sanchez.
Sanchez, however, testified that she was stopped in traffic when she was struck from behind and driven into the vehicle in front of her. One driver of the four was taken to the hospital. We infer from Salzano's testimony that it was Sanchez.
Having reviewed this trial record, we agree with defendant that plaintiff did not establish any negligence on the part of Sanchez. The trial court viewed as critical its acceptance of Perry's testimony that he was traveling fifty miles per hour when he was struck in the rear, as opposed to Sanchez's testimony that she was stopped in traffic. We are unable to agree that that factual finding is dispositive in this context. Liberty, standing in the shoes of Perry, was required to present proof of negligence on the part of Sanchez. Even if she was moving forward, as the trial court found, that would not establish negligence on her part, if she herself were struck in the rear as Perry had been.
Nor do we accept the trial court's view that Sanchez was estopped from denying negligence because Allstate had made a payment to Liberty. The decision to make such a payment could have been the product of many factors, and the action of Sanchez's insurance company could not estop her from denying negligence, thus seeking to avoid the imposition of personal liability. N.J.R.E. 408 ("[A]ny payment in settlement of a . . . claim, shall not be admissible to prove liability for . . . the disputed claim.").
The order under review is reversed.