On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2843-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued October 31, 2011
Before Judges Messano and Kennedy.
Following a jury trial, final judgment was entered against defendant, Jiffy Trucking Company, in favor of plaintiff, Abel Aldama, in the following amounts: $62,128.11 in compensatory damages; $4377 in pre-judgment interest; and $100,000 in punitive damages. The judge denied defendant's subsequent motion for judgment notwithstanding the verdict (j.n.o.v.), or alternatively, a new trial. This appeal followed.
Defendant raises the following arguments for our consideration:
I. THE PUNITIVE DAMAGES PORTION OF THE TRIAL WAS NOT BIFURCATED AND CONSTITUTES REVERSIBLE ERROR
II. THE JURY'S AWARD OF PUNITIVE DAMAGES WAS AGAINST THE WEIGHT OF THE EVIDENCE
III. THE JURY CHARGES AND THE JURY VERDICT SHEET WERE MISLEADING AND PREJUDICIAL
A. The Failure to Give A Breach of Contract Charge Was Plain Error
B. The Jury Interrogatory on the Conversion Claim Was Erroneous
IV. PLAINTIFF FAILED TO INTRODUCE ANY EVIDENCE TO ESTABLISH THE VALUE OF THE TRUCK FOR HIS BREACH OF CONTRACT CLAIM
We have considered these arguments in light of the record and applicable legal standards. We affirm in part, reverse in part, and remand for further proceedings.
We briefly summarize the procedural history and testimony adduced at trial.
Plaintiff filed an amended seven-count complaint against defendant, its affiliate, General Trading Co. (General), and Frank Covello, vice-president of security for General and defendant's security manager, alleging fraud, embezzlement, conversion, and breach of a lease agreement. Plaintiff sought compensatory and punitive damages. Defendants filed a single answer essentially denying the allegations and asserting various affirmative defenses. The answer incorporated Covello's counterclaim alleging that he acted in his official capacity and any claims against him individually were without merit; he sought damages for legal fees incurred.
Defendant engages independent contractors to deliver goods to area supermarkets and grocery stores on behalf of General, a wholesale food distribution company. From 2003 to 2005, plaintiff drove a truck for one of the independent contractors, Kevin Balsaka.*fn1 Plaintiff would routinely arrive for work in the morning, receive delivery instructions and drive the assigned route in a truck General had loaded with merchandise. On occasion, goods would be missing or damaged, and plaintiff would call General to resolve the problem, if possible. Sometimes this resulted in General taking responsibility, but, on other occasions, an amount reflecting the value of the merchandise would be deducted from plaintiff's check.
When Balsaka decided to sell his truck, plaintiff approached defendant about buying a truck of his own. Through a Spanish interpreter, Covello explained defendant's lease-to-purchase program that would result eventually in the transfer of ownership of the truck to plaintiff. Covello also told plaintiff that he would be charged up to $15,000 as a security deposit. Covello did not provide details as to how these payments would be made to defendant.
On March 22, 2005, as part of the transaction, plaintiff executed a vehicle lease agreement. It provided that plaintiff would pay defendant 182 weekly payments of $160, and the "rent [would] include the cost of insurance on the [v]ehicle." It further provided plaintiff with an option to purchase the truck "upon written notice . . . given . . . at least 180 days prior to expiration of the Term . . . for a purchase price . . . of $100.00 plus additional expenses (see addendum A)." Addendum A provided that plaintiff would be responsible "to pay [certain] expenses outside the purchase price of the vehicle for the period of 182 weeks," including $725 per year for collision insurance and other fees totaling "$49.69 per week." The lease agreement defined certain events of default, none of which are relevant to this case.
Plaintiff signed a second agreement, the owner-operator agreement, that required him "to keep an account with [defendant] in the amount of $15,000[,]" "[a]s security for the protection of the Shipper." Exhibit D of the agreement provided that if plaintiff was "found to have committed theft of any nature, th[e] contract [would] immediately be terminated and [plaintiff] [would] automatically forfeit, in full, [his] remaining security deposit . . . ."
The owner-operator agreement also required plaintiff to pay for and submit proof of "valid insurance coverage" to defendant. Exhibit C stated: "[plaintiff] agrees to participate in the truck liability insurance program sponsored by [defendant]. [Plaintiff] agrees to have the cost of the insurance deducted from [his] compensation on a weekly basis." The space provided for the current annual cost of insurance was left blank. Plaintiff testified there was an insurance card in the truck when he began to use it.
Plaintiff continued to experience problems with lost or damaged goods, and, on occasion, amounts were deducted from his pay as reimbursements to defendant. On July 13, 2007, plaintiff picked up his truck at General's warehouse with merchandise already sealed in the back trailer. At his second delivery to a supermarket in Long Branch, the receiving clerk claimed he was short some merchandise, went onto plaintiff's truck and took several boxes claiming they were his. Plaintiff notified defendant and was instructed to "go to the rest of the stops, and finish off the day."
The following day, Covello accused plaintiff of attempting to steal the merchandise. Plaintiff denied any wrongdoing but was fired several days later. Plaintiff claimed defendant terminated the lease and retained physical possession of the truck.
Plaintiff made a total of 116 payments toward the purchase of the truck, and defendant deducted a total of $25,000 from his weekly pay for insurance.*fn2 Defendant never returned $18,568.11 that was also deducted and placed in plaintiff's security account.
Covello testified that the July 13, 2007 delivery was to a customer participating in the "seal program," i.e., the trailer is loaded, "the door's secured [and] the seal is put on by Security." When told of the circumstances regarding the missing merchandise, Covello went to the Long Branch store to investigate.
Covello admitted that plaintiff did not know where the goods would be delivered or the contents of the trailer when he picked it up in the morning to make the delivery. Covello never spoke to the customer's receiving clerk, who observed plaintiff unload the truck, or to any of the workers who had packed the truck the night before. Nonetheless, Covello concluded plaintiff had attempted to steal the merchandise.
Michael Perri, one of the managers at the supermarket, testified that on the day in question, the delivery was "nine cases" short. Perri went onto plaintiff's truck. On top of items to be delivered elsewhere, Perri located the cases, some of which bore labels for Perri's store. He spoke to plaintiff and Covello about the situation. ...