NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 23, 2013
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1516-10.
Joseph M. Pinto argued the cause for appellant (Polino and Pinto, attorneys; Mr. Pinto, on the brief).
Gregg A. Ilardi argued the cause for respondent (Harwood Lloyd, LLC, attorneys; Mr. Ilardi, of counsel and on the brief).
Before Judges Hayden and Hoffman.
Following a bench trial, defendant/third-party plaintiff Carmen Roman appeals from the trial court's dismissal of her third-party complaint, with prejudice, at the conclusion of her case against third-party defendant Budget Rent-A-Car System, Inc. (BRAC). For reasons that follow, we reverse and remand.
Roman traveled to Puerto Rico on July 8, 2006. Upon arrival, she rented a car from a BRAC franchise, Budget Aguadilla, at the airport in Aguadilla, Puerto Rico. On July 14, 2006, Roman allowed her brother Israel Roman (Israel) to drive the rental car, even though he was not an authorized driver under the rental agreement. While driving, he had an accident which caused significant damage to the vehicle. Israel did not have auto insurance, and Roman's own auto insurer would not pay for the damage because she was not driving the car when the accident occurred. On the rental agreement, the box declining insurance was checked.
Following the accident, at Budget Aguadilla's direction, Roman obtained an estimate for the cost to repair the damage. Roman arranged for the return of the damaged vehicle to Budget Aguadilla, and rented a vehicle from another car rental agency for the remainder of her trip. Budget Aguadilla thereafter sought reimbursement for the damage to its vehicle, and Roman agreed, in numerous letters introduced into evidence, to pay for the damage.
Budget Aguadilla proceeded to charge over $1, 300 on a Commerce Bank card Roman had provided, and then charged almost $12, 000 on Roman's Capital One Bank (Capital One) credit card for the balance of the damage to the rental vehicle. Roman worked out an agreement with Capital One to pay $200 per month and paid this amount for over two years, until she could no longer afford the payments. Capital One then sued Roman, who counterclaimed, alleging violation of federal truth-in-lending laws; Roman also filed a third party-complaint against BRAC, alleging conversion, consumer fraud, and breach of contract, claiming that her Capital One credit card was wrongfully charged without her permission.
Two months before trial, Roman settled her disputes with Capital One when the bank agreed to pay her $2, 500 and forgive her then unpaid credit card balance of approximately $17, 000.
At trial, Roman testified that she initially provided the clerk at Budget Aguadilla with her Capital One credit card; however, this card was not accepted, as Roman's credit limit on the card was only $500. At that point, Roman gave the clerk her Commerce Bank card, which had a higher credit limit and was accepted. Roman testified that she did not read the rental agreement because she was rushed by the clerk, as there was a line of people behind her. Roman stated that she had not authorized Budget Aguadilla to charge her credit card and claimed that she had not ...