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Melissa Werthmann and Joseph Werthmann, H/W v. New Jersey Manufacturers Insurance Company

October 5, 2012

MELISSA WERTHMANN AND JOSEPH WERTHMANN, H/W, PLAINTIFFS-APPELLANTS,
v.
NEW JERSEY MANUFACTURERS INSURANCE COMPANY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6163-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 10, 2012

Before Judges Fasciale and Maven.

Plaintiffs Melissa and Joseph Werthmann appeal the dismissal with prejudice of their personal injury action.*fn1 We affirm.

This matter arises out of an automobile accident that occurred on July 18, 2006. Plaintiffs filed an uninsured motorist claim with their insurance carrier, defendant New Jersey Manufacturers Insurance Company. The matter proceeded to uninsured motorist arbitration, which resulted in an award against defendant. Defendant rejected the award and demanded a trial by jury. Plaintiff filed a complaint in Superior Court on December 9, 2009. Following discovery, the case was scheduled for mandatory, non-binding arbitration; the award was rejected by defendant and a trial de novo was requested.

The case was listed for trial on April 18, 2011, a settlement conference on May 31, 2011, and then relisted for trial on June 20, 2011, August 2, 2011, September 12, 2011, and October 3, 2011. Defendant's attorney concedes that on each of those trial dates he requested the case be placed on ready hold. On the next scheduled trial date, October 17, 2011, plaintiffs' attorney could not appear due to a conflict in his schedule but sent his law partner to answer the trial call. Trial did not begin, but the matter was conferenced with the judge. The parties were notified later that day to appear the following day to begin the trial. On October 18, 2011, plaintiffs' counsel informed the judge for the first time that he was not prepared to proceed due to his expert witnesses' unavailability. Particularly, counsel advised that the physiatrist's testimony regarding the results of an independent EMG was necessary to meet plaintiffs' burden of proof regarding objective evidence of permanent injury. The trial judge rejected plaintiffs' counsel's stated belief that he would now have an opportunity to secure the witnesses' de bene esse depositions. The judge noted that plaintiffs had notice that the case was going to be tried and stated:

I see no choice here, it was listed for trial, it's the sixth trial listing, it's had a conference where the parties were told - - or advised that there would be no money, there was a no pay case, or verbal threshold. So everyone was aware of it. The doctor should have been on notice or in the can before this.

The judge entered an order of dismissal with prejudice on the grounds that plaintiffs were not prepared to proceed.

Plaintiffs filed a motion for reconsideration and to vacate the dismissal. Counsel certified that on October 11, 2011, he received a telephone call from defendant's attorney advising him to appear on October 17, 2011. Counsel acknowledged that he "did not prepare to have plaintiffs' medical experts appear because the defendant's attorney again wrote the court requesting that he be [placed] on telephone standby because he had older cases listed for trial." Counsel averred that upon receiving confirmation to appear on October 18, he only had two hours to arrange for his medical experts to appear. Counsel argued that the dismissal with prejudice was contrary to Rule 4:37-2, was not meritorious, and denied his clients due process.

The judge denied the motion on November 18, 2011. In addition to incorporating his prior decision by reference, he explained his reasons, in part, as follows:

The court will only say the plaintiff's indication that he had only approximately two hours to arrange for medical experts to appear is a blatant misrepresentation. The case was listed for trial. What plaintiff chose to do is he chose to be unprepared.

He didn't believe he would be reached. He was fully aware of the [c]court's trial listing. It was not the first trial listed in the matter and then when called in for trial by the court tried to stonewall the court and profess that he was unprepared . . . .

The trial judge determined the plaintiff's certification to be inaccurate and misleading and denied the ...


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