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Randall Kidd v. Pedersen Building Systems

May 8, 2012

RANDALL KIDD, PLAINTIFF-APPELLANT,
v.
PEDERSEN BUILDING SYSTEMS, LLC, AND MARCH ASSOCIATES CONSTRUCTION, INC., DEFENDANTS-RESPONDENTS, AND NUCOR BUILDING SYSTEMS, BUTLER BUILDING SYSTEMS, E.I. DUPONT DE NEMOURS AND COMPANY CORPORATION, AND SCANNELL PROPERTIES, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3768-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 24, 2012 -

Before Judges Baxter, Nugent and Carchman.

Plaintiff Randall Kidd appeals from two Law Division orders entered on September 17, 2010, which, in combination, resulted in the dismissal of his complaint against defendants Pedersen Building Systems, LLC (Pedersen), and March Associates Construction, Inc. (March). As to defendant Pedersen, the judge refused to reconsider his earlier July 23, 2010 order that had barred plaintiff from calling Vincent Gallagher as an expert witness because plaintiff had not demonstrated exceptional circumstances justifying the reopening of discovery ten days before trial. As to defendant March, the judge held that plaintiff was not entitled to the tolling of the statute of limitations, as March's role in the incident leading to plaintiff's injuries could have been discovered with the exercise of due diligence within the applicable two-year limitations period. We affirm.

I.

On May 1, 2006, plaintiff, an ironworker employed by Pravco, Inc. (Pravco), was installing safety netting on a Federal Express building under construction in Dover when a strong gust of wind blew him to the ground twenty-five feet below. Plaintiff sustained injuries from the fall. March was the general contractor on the project, and Pedersen was the subcontractor hired by March to supply and erect the pre-engineered building. Pedersen hired Pravco to unload and erect the building at the site.

A detective who arrived at the scene to investigate the accident prepared a police report listing the following individuals as "foremen and supervisors that were on the scene" when the accident occurred: Pete Topping, who was identified as "ironworkers foreman"; Kevin M. Perrier, who was identified as "construction super"; and Daniel R. Merlonghi, who was identified as a "witness." The police report listed the address, cell phone number and date of birth for each of these three individuals.

On March 10, 2008, plaintiff filed a complaint naming as defendants only Pedersen and Nucor Building Systems, in addition to various fictitious parties. Plaintiff did not name March as a defendant. Although plaintiff filed an amended complaint some six months later, he again did not name March as a defendant.

In its answer to plaintiff's complaint, Pedersen denied that it had been the general contractor on the job, but did not indicate the business entity that served in that capacity. Pedersen asserted crossclaims for contribution and indemnification against the defendants named in plaintiff's amended complaint.

Along with his complaint, plaintiff propounded interrogatories on Pedersen, which Pedersen answered ten months later on January 9, 2009. In its interrogatory answers, Pedersen provided plaintiff with a copy of the police report listing the three individuals who were present when the accident occurred, and also provided the following answers to plaintiff's interrogatories:

7. Do you, or does any person, have any reports concerning the occurrence of plaintiff's injury? [Answer]: None other than the police report and OSHA report.

13. Pursuant to R. 4:10-2(b), state whether there are any insurance agreements . . . under which any person or firm . . . may be liable to satisfy part or all of a judgment that may be entered in this action[.] . . .

[A]ttach a copy of each insurance agreement or policy[.] [Answer]: At the time of the accident, this defendant had a liability insurance policy with Selective Insurance . . . coverage is being provided by QBE Insurance Corp. through policy #HBG01360 issued to Pravco, Inc. See Certificate of Insurance. [(Emphasis added).]

The one-page certificate of insurance, which Pedersen provided to plaintiff in its January 9, 2009 answers to plaintiff's interrogatories, identified Pravco as the primary insured, and named March as an additional insured:

March Associates Construction. Inc., Scannell Properties #39. LLC. SW Dover I. L.P., U.S. Bank National Association. Town of Dover, Morris County NJ. Fed-Ex Distribution Center, Dover NJ. Pedersen Building System are all named as additional insured[s] as per the written contract. [(Emphasis added).]

The discovery end date lapsed on March 16, 2009. Ten months later, on January 18, 2010, plaintiff moved to extend discovery and to adjourn the scheduled February 16, 2010 trial. In a supporting certification, plaintiff's counsel stated that he "has retained a safety expert, [named] Vincent Gallagher" who "will need additional time to review the deposition transcripts," and will thereafter issue a report. Counsel did not allude to the marital difficulties upon which he later relied in opposing Pedersen's motions to bar Gallagher's report and for summary judgment.

On February 10, 2010, the judge denied plaintiff's motion to extend the discovery end date and adjourn the trial, noting that the relief plaintiff sought required a showing of "'exceptional circumstances' . . . , as a trial date has [already] been set." The judge noted that plaintiff's "certification merely relates that the parties have not completed . . . discovery" and that the discovery end date had lapsed ten months prior. The judge concluded that "[n]o grounds have been shown to permit the court to reasonably exercise its discretion to [extend the discovery end-date and adjourn the trial]."

After the discovery end date had passed, the parties continued to engage in discovery. Plaintiff was deposed on January 28, 2010, and Pedersen's owner, Ernest Pedersen, was deposed on April 13, 2010. Pedersen testified to the contractual relationships between the parties, stating that March was the general contractor on the project; Pedersen was the subcontractor hired by March; and Pedersen had hired Pravco. During the deposition, Pedersen produced two contractor/subcontractor agreements identifying Pedersen and Pravco as the contractor and subcontractor on the project, respectively, and listing the owner of the property as: "Scannell Properties c/o March Associates."

In April 2010, Pedersen moved for summary judgment, asserting that plaintiff had not identified any acts or omissions on the part of Pedersen that caused, or contributed to, the injuries plaintiff sustained on May 1, 2006. On May 5, 2010, plaintiff opposed Pedersen's motion, and requested leave to file a second amended complaint naming March as a defendant. In a supporting certification, plaintiff's counsel maintained that he had been experiencing significant marital difficulties that interfered with "completing work on [his] ...


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