NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1398-05T51398-05T5

MICHIKO TRACY MUKASA,

Plaintiff-Appellant,

v.

ISE FARMS, INC., a New Jersey

corporation; DUTCHLAND FARMS; ISE

FARMS, t/a DUTCHLAND FARMS, or

WILLIAM DOE and/or WILLIAM DOE, INC.,

t/a DUTCHLAND FARMS, DENTON CAROLINA

CORPORATION, a Maryland Corporation

doing business in the State of New

Jersey; ALFUS W. DIXON, INC.; HUGO'S,

INC., a corporation doing business

in the State of New Jersey; PENSKE

TRUCK LEASING CORPORATION, a Delaware

corporation doing business in the

State of New Jersey, HONDA, INC.;

HONDA USA, INC.; JOHN DOE, INC.,

t/a HONDA; B.F. GOODRICH TIRE AND

RUBBER CO., INC., and/or RICHARD ROE,

INC., t/a B.F. GOODRICH TIRE

MANUFACTURING CO., INC., and/or

B.F. GOODRICH; FREIGHTLINER, INC.

and/or SAMUEL DOE, INC., t/a

FREIGHTLINER TRUCK MANUFACTURING

CORPORATION and/or FREIGHT LINER,

INC.; PAUL DOE, JANE DOE and MARY DOE,

Defendants,

and

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY,

Defendant-Respondent.

_____________________________________________________________

Argued September 26, 2006 - Decided

Before Judges Axelrad and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-3656-00.

Bernard A. Campbell, Jr. argued the cause for appellant Michiko Tracy Mukasa (Destribats, Campbell, DeSantis, Magee & Staub, attorneys; Mr. Campbell, on the brief).

Donald R. Chierici, Jr. argued the cause for respondent State Farm Mutual Automobile Insurance Company (Chierici, Chierici & Smith, attorneys; Donald R. Chierici, Jr., on the brief).

PER CURIAM

Plaintiff, Michiko Tracy Mukasa, appeals from an order dated July 18, 2003, granting summary judgment in favor of defendant State Farm Mutual Automobile Insurance Company (State Farm) and dismissing all claims and cross claims against it. More particularly, the court determined as a matter of law that State Farm did not owe a duty or breach such a duty to plaintiff when, after State Farm paid plaintiff's father, Yasushi Mukasa, for his total loss of the vehicle, it took title to the damaged vehicle and sold it for salvage at an auto auction. We affirm.

On December 14, 1998, plaintiff, a resident of Delaware, was driving a 1998 Honda CRV owned by her parents, Yasushi and Fumiko Mukasa, and insured under a policy issued by State Farm in which they were the named insureds and plaintiff was listed as a permissive user. While traveling southbound in the lane nearest the median, on Route 95 in Hopewell Township, a tractor trailer crossed into her lane, causing plaintiff to swerve to avoid a collision. The tractor trailer then sideswiped plaintiff's vehicle, causing her vehicle to flip and roll across the median and three northbound lanes of traffic. As a result of the injuries plaintiff suffered in the accident, she is now paralyzed from the waist down.

The State Farm policy provided coverage for property damage and personal injury protection (PIP) and plaintiff promptly informed State Farm of the accident. PIP benefits were paid and are not a subject of this appeal. Eight days after the accident, on December 22, 1998, defendant dispatched an estimator who inspected the damaged vehicle and determined that it was a total loss. The estimator photographed the vehicle and prepared a report which indicated "obvious total loss/rolled completely destroyed." The vehicle was also photographed by Yasushi Mukasa, who went with his wife and son to view the vehicle approximately a week to ten days after the accident. Thereafter, by letter dated January 15, 1999, State Farm requested that plaintiff's parents deliver to it the certificate of title for the vehicle. The Mukasas complied with that requested by authorizing their lien holder to deliver the certificate of title to State Farm upon payment of their account by State Farm. Around that same time, the insurance carrier of the lessee/driver of the tractor trailer involved in the accident requested, and received, permission from State Farm to inspect the damaged plaintiff's vehicle. Representatives of those potential defendants inspected the vehicle on February 2, 1999.

At a meeting on January 28, 1999, between Brett Hayman of State Farm and plaintiff's parents, the Mukasas gave a power of attorney to defendant to transfer title and to settle their damage claim. State Farm paid $16,375 in exchange for a release for the loss of property under the policy. Regarding a question from plaintiff's parents as to whether plaintiff should keep the vehicle, Hayman replied that they and State Farm had taken photographs of the vehicle and therefore there should be no concern about keeping it.

Plaintiff had no direct communications with State Farm about retaining the vehicle or any of its component parts. All communications concerning the vehicle were through her parents. Plaintiff first obtained legal representation in February 1999. State Farm was advised of such representation on February 15, 1999. On March 11, 1999, State Farm received the certificate of title for the vehicle from the lien holder, and on March 24, 1999, in accordance with its usual course of business, State Farm sold the car at auction.

Plaintiff filed a complaint in the Law Division, Mercer County, against the named parties in this matter on October 25, 2000. Among other things, that complaint included a claim against State Farm for spoliation of evidence, referring to the loss and destruction of the vehicle. The complaint alleges that State Farm knew or had reason to know that plaintiff intended to investigate claims against all parties potentially responsible for her injuries and that State Farm had a duty to preserve evidence which might be useful in the case she was about to bring and to permit her adequate time and opportunity to investigate her claims against all parties, including defendants American Honda Motor Company, Inc. (Honda), the manufacturer of the vehicle she had been driving at the time of the accident; and B.F. Goodrich Tire and Rubber Co., Inc. (B.F. Goodrich), the manufacturer of the vehicle's tires. Plaintiff alleges that her parents surrendered title to the vehicle as a result of State Farm's incorrect, improper and inaccurate advice regarding the disposition of the vehicle and that State Farm negligently and carelessly disposed of the vehicle when it knew or should have known of her need to investigate and prove her cause of action against the responsible parties.

Although a series of summary judgment motions were filed by the various defendants, this appeal concerns only the grant of summary judgment in favor of defendant State Farm. In challenging the grant of summary judgment, plaintiff argues that there existed a fiduciary relationship between plaintiff and State Farm and that State Farm breached that duty by not maintaining possession of the vehicle. Further, plaintiff alleges spoliation of the evidence and that State Farm acted in bad faith.

In matters of summary judgment, the court must determine whether, giving the benefit of all reasonable inferences to the party opposing the motion, there are any genuine issues as to material facts challenged and whether the moving party is entitled to a judgment, R. 4:46-2(c), or whether the evidence "is so one-sided that one party must prevail as a matter of law." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed.2d 202, 214 (1986)). On appeal from an order granting summary judgment, we apply the same standard that governs the analysis by the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Plaintiff alleges that defendant breached a duty by failing to preserve evidence for a future litigation. We agree with the motion judge, who found no such breach of duty because there is nothing in the record to indicate that State Farm voluntarily or contractually undertook any obligation to preserve any evidence for future litigation. Gilleski v. Cmty. Med. Ctr., 336 N.J. Super. 646, 654-55 (App. Div. 2001). Furthermore, there is nothing in the record that necessarily placed State Farm on notice that the condition of the vehicle or of any particular component of the vehicle would play a crucial role in pending litigation. Id. at 654.

There was no suggestion that this case would develop into a lawsuit stemming from a malfunction or defect in the vehicle plaintiff was driving. The circumstances of the case, as State Farm knew it, all indicated that the negligence of the driver of the tractor trailer was the alleged cause of the accident. Though plaintiff was represented by counsel prior to the sale of the vehicle at auction, and although there was a request to inspect the vehicle made on behalf of the operator of the tractor trailer and his employer, there was never any explicit request made on behalf of plaintiff that defendant should maintain possession of the vehicle. Under such circumstances, plaintiff failed to show that there was any dispute as to any issue of material fact tending to support the charge that the destruction of the evidence was designed to disrupt her case, that it actually disrupted her case or that damages were proximately caused by the disposition of the vehicle. Viviano v. CBS, Inc., 251 N.J. Super. 113, 126 (App. Div.), certif. denied, 127 N.J. 565 (1992).

Here, plaintiff settled her claim with Honda, the manufacturer of the car, and is thus unable to show harm from defendant's actions. State Farm never assumed a duty to preserve the vehicle and never indicated it would preserve it. No one requested that State Farm preserve the vehicle and no one on behalf of plaintiff or plaintiff's father ever requested that they be permitted to pay the salvage value and retain the vehicle. As the court found, the interests of the tractor trailer's insurance carrier in its inspection was consistent with the interests of plaintiff, in terms of looking for a mechanical defect in plaintiff's car that might show that the manufacturer or someone else was responsible. Even in the absence of such an alignment of consistent interest, the motion judge correctly concluded "there's nothing in the record to indicate that [State Farm] undertook [or owed] a duty to preserve evidence." Consequently, plaintiff failed, as a matter of law, to establish claim of spoliation. Summary judgment was properly granted.

Plaintiff's remaining arguments - that State Farm acted in bad faith or that it owed a fiduciary duty - are without sufficient merit to warrant discussion in a written opinion. R. 2:11-(e)(1)(A) & (E).

Affirmed.

Earlier, on June 30, 1999, a personal injury action had been filed on behalf of plaintiff Michiko Tracy Mukasa against Penske Truck Leasing Corporation, ISE Farms, Inc., Denton Carolina Corp., Hugo's Inc. and Alfus W. Dixon, in the Philadelphia County Court of Common Pleas. The complaint alleged that Penske owned and leased the tractor to Denton and that ISE owned the utility refrigeration trailer leased to Denton. Defendant Alfus W. Dixon was allegedly employed by Hugo's Inc. and/or Denton Carolina Corp.

When emergency personnel first arrived on the scene of the accident, they found plaintiff was not in her seatbelt. Plaintiff stated that she was always in the habit of wearing her seatbelt, therefore, she contends there must have been a defect in the passenger restraint system. Her claim against B.F. Goodrich was based on reports of witnesses indicating that a tire may have blown out.

An order, dated April 4, 2003, was entered in favor of Michelin North America (incorrectly pled as B.F. Goodrich Tire and Rubber Co. Inc.), and no appeal has been taken from that order.

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A-1398-05T5

February 1, 2007