On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1301-09.
The opinion of the court was delivered by: Ashrafi, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 27, 2012 -
Before Judges Sabatino, Ashrafi and Fasciale.
The opinion of the court was delivered by ASHRAFI, J.A.D.
The precise and limited issue we decide is whether a claimant must present expert testimony to support her causes of action against several defendants in the automotive business for damages sustained when the engine of her leased automobile seized. Third-party plaintiff Patricia Mendola appeals from orders granting summary judgment to third-party defendants because she did not produce a report of an expert witness by the close of discovery. We affirm in part and reverse in part.
Viewed most favorably to appellant Mendola, see R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the evidence presented in the summary judgment record establishes the following facts.
Mendola leased a 2005 Jaguar S-Type from third-party defendant Ray Catena Jaguar of Edison on July 25, 2005. The three-year lease agreement required that she make payments of $765 per month to plaintiff Ford Motor Credit Company, LLC, which was operating as Jaguar Credit in this transaction.
In January 2007, Mendola's car was in an accident that caused extensive front end damage, including to the radiator. Third-party defendant Modern Auto Body of South Orange, Inc. repaired the car over a two-month period at a cost of nearly $15,000. The car was then inspected and the repairs approved on behalf of the lessor by third-party defendant Main Auto Sales, Inc., a dealership doing business as Madison Jaguar.
In March 2007, while the car was still being repaired, a safety recall letter was issued to owners and lessees of 2005 S-Types on the letterhead of "Jaguar Cars."*fn1 The recall letter pertained to specific fuel components located on the gasoline tank, and it warned that "[i]f the fuel tank is fully filled with fuel or the vehicle is parked on a hill with a leak path present, the driver may notice fuel odor or fuel leakage."
After completion and approval of the repairs related to the accident, the car was returned to Mendola on April 5, 2007. Within days, Mendola noticed that the "check engine" warning light flickered. The following weekend, Mendola drove 240 miles from Short Hills to Atlantic City and back. Either the low coolant warning light or the check engine light illuminated during the trip. Mendola stopped at a service station on the Garden State Parkway and told an attendant about the warning light. The attendant looked under the hood, and he may have added a fluid. Mendola did not see what the attendant did, and he told her nothing except that the car was "all set." She believes he added something to the engine because he charged her $9 in addition to the cost of gasoline. After the stop at the service area, Mendola's drive to and from Atlantic City was without further incident or illumination of warning lights.
Several days after the Atlantic City trip and about eleven days after the car was returned to her, Mendola saw the dashboard backlight dimming and smoke coming from under the hood. She stopped on the side of the road. The car was towed to Modern Auto Body, where it was determined that the engine had seized.
Subsequently, the car was towed to Madison Jaguar. On April 16, 2007, Madison Jaguar's mechanic noted in a service report that overheating had caused severe engine damage. The service report also stated: "Non Jaguar coolant was found in radiator. Coolant and oil mixed. Needs engine." A number of "diagnostic trouble codes" were listed in the report: "STO red indicating malfunction warning lamp did illuminate . . . engine coolant temperature high . . . intake air temperature circuit low input . . . thermostat performance . . . engine oil temperature circuit high input."
Bob Orozco, the service manager at Madison Jaguar, told Mendola that she was responsible for the engine seizure because of improper operation and maintenance of the car, and that Madison Jaguar would not repair the engine without charging her the full cost. The odometer reading on the service report indicated the car had been driven 17,959 miles.
Mendola and the third-party defendants did not come to an agreement as to responsibility for repairing the engine. In November 2007, Mendola stopped making lease payments, and the car was later repossessed by the lessor. In April 2009, Ford Motor Credit Company sued Mendola for breach of the lease agreement, demanding a total of more than $23,000 as the balance due under the terms of the lease. In her answer to the complaint, Mendola asserted a counterclaim against Ford Motor Credit Company and third-party claims against the other parties.*fn2
Mendola alleged breach of unspecified express and implied warranties, negligent repair, negligent inspection, and other causes of action that are not at issue on this appeal.
At the conclusion of the discovery period, no party had produced an expert report. Those third-party defendants that remained in the case moved for summary judgment based on the lack of an expert report supporting Mendola's claims.*fn3 Mendola argued that third-party defendants had the initial burden of producing an expert witness and ...