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New Jersey Manufacturers Insurance Company A/S/O Ellen and Elizabeth v. Stephen Cujdik and Ashlyn Bordo

February 14, 2012

NEW JERSEY MANUFACTURERS INSURANCE COMPANY A/S/O ELLEN AND ELIZABETH ROBINS, PLAINTIFF-APPELLANT,
v.
STEPHEN CUJDIK AND ASHLYN BORDO, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2679-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 16, 2011

Before Judges R. B. Coleman and Lihotz.

Plaintiff New Jersey Manufacture's Insurance Co., as subrogee of its insureds, Ellen and Elizabeth Robins (collectively Robins), appeals from a Law Division order precluding the testimony of its expert because the court found the report constituted an inadmissible net opinion. Thereafter, the court granted the summary judgment motions filed by defendants Stephen Cujdik and Ashlyn Bordo. On appeal, our review is limited to determining whether the trial court erred in barring plaintiff's expert testimony. We affirm.

Carol and Stephen Cujdik, mother and son, resided in one half of a side-by-side duplex, titled to Carol.*fn1 The adjoining dwelling was owned by Robins.

At approximately 11:35 p.m. on April 20, 2006, a fire erupted in Stephen's room, destroying the Cujdik's residence and partially destroying the Robins' residence. Earlier that evening, defendants had been in Stephen's bedroom for approximately two hours watching television. Stephen was not a smoker and, although Ashlyn was, Carol forbade smoking in the house. Moreover, Ashlyn rarely smoked in Stephen's presence because he found it distasteful. Stephen confirmed Ashlyn had not smoked that evening and he had no candles in his room. Defendants left the residence at approximately 10:00 to 10:15 p.m. to comply with Ashlyn's curfew.

After taking Ashlyn home, Stephen returned to his residence at approximately 11:00 p.m. but did not immediately return to his room. Instead, he went to the upstairs computer room located next to his bedroom. Carol had already retired to bed. Shortly thereafter, Stephen smelled smoke. He checked the bathroom and hallway, and upon seeing smoke emanating from under his bedroom door, he opened the door to discover the fire in his room. Stephen woke his mother, called 911 to report the fire, and they safely evacuated the premises.

The Riverside Fire Department extinguished the fire and a full investigation commenced the following afternoon. Burlington County Assistant Fire Marshal Michael J. Reed issued a written report. The place of the fire's origin was established as "the second level of the dwelling in the middle room along the east side of the dwelling which was later identified as Stephen's bedroom." In examining the debris, "[t]he power strip, extension cord and other electrical items in the area of origin appeared to have [been] damaged as a result of the fire and not the ignition source." Reed concluded "the fire appears to have been accidental in nature, however, an ignition source could not be determined[.]"

Carol's home was insured by Proformance Insurance Company (Proformance), which engaged John P. Oakley, Jr. of O'Neill Associates to perform an investigation. In his written report, Oakley concurred with Reed's findings and conclusions, stating:

Based on the physical evidence, as well as facts developed through investigation, it is my opinion that the fire originated in the south, second floor bedroom identified as the insured's son's room. The most extreme fire damage occurred in this room and appears to have originated between the middle of the room and the southeast corner.

The cause for the fire could not be determined due to the severity of the damage.

The fire also damaged the Robins' adjoining residence. They submitted a claim to plaintiff, their property and casualty insurance carrier, seeking $223,412.81 for the fire damage and related expenses. Plaintiff also arranged for an investigation by Paul J. Boerner of National Forensic Consultants, Inc. Boerner similarly concluded "[t]he fire originated in the bedroom on the south side of the residence of Mrs. Cujdik and the fire traveled into the Robins['] residence. The cause of the fire is undetermined."

On July 10, 2007, plaintiff drafted a letter to Reed memorializing a conversation during which Reed expressed opinions not contained in his original report. Specifically, the correspondence stated:

This will confirm that, pursuant to our recent conversation, you advised me that it is your opinion that the . . . fire was not

the result of an electrical cause. This will further confirm that, . . . you indicated that you are of the opinion that the fire was accidental in nature, and that you could not eliminate smoking material or the use of candles as the cause of the fire. You further indicated that you believe the origin of the fire was near a beanbag chair located between the bed and the television set.

Reed signed the letter, signifying the statements in the letter "accurately confirm[ed]" his prior statements during the conversation.

Plaintiff, as Robins' subrogee, filed a complaint against Carol and Stephen, alleging the fire was caused by negligence for which recovery and reimbursement of the sums paid on the Robins' claim were sought. Ashlyn was later added as a defendant and Carol was dismissed from the litigation. Defendants moved for summary judgment. The motions were denied, however, the motion judge ordered a "104 Hearing" to examine the admissibility of Reed's opinions.*fn2

A different judge was assigned to conduct the evidential hearing. In presenting Reed as its expert, plaintiff sought to obtain an opinion on the fire's cause during this colloquy:

[PLAINTIFF'S COUNSEL]: Okay. And were you able to eliminate . . . electrical malfunction as a cause of the fire in your investigation?

[REED]: Based on my training and experience it appeared that all the electrical equipment was damaged as a result of the fire.

Q: Okay. And have you taken courses to make that type of assessment in part?

A: Yes.

Q: . . . And because it appeared that the electrical components had been attacked by the fire and were not the cause of the fire, did you eliminate the electrical as the cause of the fire?

A: [A]s I said before, it appeared that it was all damaged as a result of the fire.

Q: All right.

A: I'm not an electrical engineer.

Q: I understand that. But in your report[,] did you eliminate electrical as a cause of the fire.

A: I left it as undetermined.

Q: I understand that. But did you eliminate electrical as a cause of the fire?

A: [I]t appears that the fire damaged the ...


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