SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5990-95T2
TAMICA JONES AND KATRINA WIGGS,
Plaintiffs-Respondents/
Cross-Appellants,
V.
LASHARRA D. BENNETT, WILLIAM R.
HOOVER, CITICORP ACCEPTANCE CO.,
CHRISTOPHER P. FLYNN and ENERGY
SOLUTIONS, INC., HYUNDAI, INC.,
HYUNDAI MOTOR AMERICA, CIRCLE
CHEVROLET CO., INC., successor to
EATONTOWN HYUNDAI, INC., JOHN DOE
1-10 and ABC CORPORATION 1-10,
Defendants.
________________________________________
LASHARRA D. BENNETT,
Plaintiff-Respondent/
Cross-Appellant.
v.
WILLIAM R. HOOVER, ENERGY
SOLUTIONS, INC., CITICORP ACCEPTANCE
CO., CIRCLE CHEVROLET CO., INC.,
successor to EATONTOWN HYUNDAI, INC.,
JOHN DOE 1-10 and ABC CORPORATION 1-10
(fictitious individuals and corporate
entities) jointly and/or individually,
Defendants-Appellants.
________________________________________
PAUL BROWN,
Plaintiff-Respondent/
Cross-Appellant,
v.
LASHARRA D. BENNETT,
ENERGY SOLUTIONS, INC.,
WILLIAM HOOVER, CIRCLE
CHEVROLET COMPANY, INC.,
successor to EATONTOWN
HYUNDAI, INC., JOHN DOE
1-10 and ABC CORPORATION
1-10 (fictitious
individuals and corporate
entities), jointly and/or
individually,
Defendants.
________________________________________
CHRISTOPHER P. FLYNN,
Plaintiff,
v.
WILLIAM R. HOOVER,
CITICORP ACCEPTANCE
COMPANY and LASHARRA D.
BENNETT,
Defendants.
_______________________________________
WILLIAM R. HOOVER,
Plaintiff-Appellant/
Cross-Respondent,
v.
LASHARRA D. BENNETT,
CHRISTOPHER FLYNN, HYUNDAI,
INC., CIRCLE CHEVROLET CO.,
successor to EATONTOWN HYUNDAI,
INC., JOHN DOE 1-10 and ABC
CORPORATION 1-10 (fictitious
individuals and corporate entities),
Defendants.
_______________________________________
TAMIKA HOBBS, an infant by Renee
Hobbs and RENEE HOBBS, individually,
Plaintiff-Respondent/
Cross-Appellant,
v.
LASHARRA D. BENNETT, WILLIAM R.
HOOVER, CITICORP ACCEPTANCE CO.,
CHRISTOPHER P. FLYNN, ENERGY
SOLUTIONS, INC., HYUNDAI, INC,
HYUNDAI MOTOR AMERICA, INC.,
CIRCLE CHEVROLET CO., INC.,
successor to EATONTOWN HYUNDAI,
INC.,
Defendants.
_________________________________________________________________
Submitted November 18, 1997 - Decided January 8, 1998
Before Judges Long, Stern and Kleiner.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County.
Boglioli, O'Mara & Mirra, attorneys for
appellants/cross-respondents William R. Hoover and
Energy Solutions, Inc. (Richard J. Mirra, on the
briefs).
Karasic, Stone & Marvel and Kim A. Fellenz,
attorneys for respondent/cross-appellant Lasharra
D. Bennett (Richard D. Stone and Mr. Fellenz, on
the briefs).
Drazin & Warshaw, attorneys for respondent/cross-
appellant Paul Brown (Christopher R. Brown, on the
brief).
Wilentz, Goldman & Spitzer, attorneys for respondents/
cross-appellants Tamica Jones and Katrina Wiggs
(Randall J. Richards, of counsel; John Anzalone, on the
brief).
Ravich, Koster, Tobin, Oleckna, Reitman & Greenstein,
attorneys for respondent/cross-appellant Tamika Hobbs
(Howard N. Wiener, on the brief).
The opinion of the court was delivered by
STERN, J.A.D.
This appeal and the cross-appeals are from judgments for
plaintiffs (including Lasharra D. Bennett ("Bennett")) following
a multiple vehicle accident that occurred on the Garden State
Parkway ("Parkway") at approximately 1:15 a.m. on November 10,
1990. Defendant William R. Hoover ("Hoover" or "defendant") was
operating a 1988 Ford Ranger leased by defendant Energy
Solutions, Inc. ("Solutions") when it struck a 1990 Hyundai
automobile owned and operated by Bennett after the Bennett
vehicle broke down on the local lanes of the Parkway. Hoover's
vehicle then crossed over the median into the express lane where
it collided with a second vehicle operated by Christopher P.
Flynn ("Flynn"). Bennett and her passengers, Tamika Hobbs
("Hobbs"), Katrina Wiggs ("Wiggs"), Tamica Jones ("Jones") and
Paul Brown ("Brown"), filed separate actions for the injuries
caused by the accident. Flynn also brought an action.See footnote 1
The complaints were consolidated for trial on the issue of
liability. Damages were stipulated at $560,000 because Hoover
had filed for bankruptcy protection and the automatic bankruptcy
stay was released to the extent Solutions' carrier provided
$500,000 liability insurance coverage for him as an additional
insured. In a separate declaratory judgment action, Providence
Washington Insurance Co., the carrier for the automobile's
lessor, was ordered to provide an additional $30,000. Bennett's
carrier also provided $30,000 of coverage. The plaintiffs
stipulated to a percentage division of the proceeds.
After the trial judge directed a verdict of liability
against Hoover and ruled that the passengers' comparative
negligence was not to be an issue for its consideration, the jury
unanimously found no negligence on the part of Bennett. Judgment
was entered against defendant in favor of all plaintiffs
including Bennett. Prejudgment interest was denied as was a
motion for a new trial.See footnote 2
Bennett was the owner and operator of an automobile that "broke down" or "slow[ed] down rapidly" and "shut off" unexpectedly and "coasted" to "a complete stop" in the center lane of the three "local lanes" of the Parkway. Shortly after Bennett's vehicle came to a stop, it was struck in the rear by a pick-up truck driven by Hoover which had been leased by his employer, Solutions. Plaintiffs Jones, Wiggs, Brown and Hobbs were passengers in Bennett's vehicle. After striking the Bennett vehicle from behind, Hoover's truck careened to the left, crossed a grass median, entered the parallel southbound "express lanes" of the Parkway, and struck a vehicle being driven by Flynn. Hoover could not recall the accident nor the events that led up to the accident due to the amnesia he sustained from his injuries as a result of the accident.
Plaintiffs in the Bennett vehicle recalled the accident and
the events leading up to it in varying details. They decided to
go to the Amboy Cinemas to watch the last showing of "Child's
Play II" on the evening of November 9, 1990. According to the
Asbury Park Press movie table introduced into evidence, the
movie's last showing for that evening was scheduled to start at
12:30 a.m. When they arrived, plaintiffs were turned away
because "the tickets were sold out." Hobbs utilized the
theater's restroom for a few minutes while the others waited.
The group then went to a restaurant next door, but it was closed.
In total, they "remained at the scene" or in the area of the
theater for fifteen to twenty minutes. They then decided to "go
back home."
As she was driving south on the Parkway, Bennett testified
that she heard a "grinding sound coming from the front of [her]
car." Upon hearing the noise, she moved from the left lane to
the center lane in an effort to eventually get to the right
shoulder. However, because traffic in the right lane was heavy,
Bennett remained in the center lane when the vehicle came to a
complete stop. Bennett testified that she "noticed that the car
was having some difficulty. So, immediately I put the flashers
on so that I could get all the way over to ... the shoulder."
Other passengers corroborated that the flashers or hazard lights
were turned on.
Brown estimated that about "five seconds" passed between the
time the Bennett vehicle came to a complete stop and when it was
hit from behind by the Hoover vehicle. Hobbs estimated the time
between the stop and accident "wasn't even a minute."
New Jersey State Trooper Richard Hogan was dispatched to the
scene at 1:15 a.m. He indicated that the weather was "clear,"
traffic was "light," and that this particular area where this
accident occurred was "dark" due to an absence of highway lights.
Hogan further testified that he found Bennett's vehicle disabled
in the southbound left local lane and found the Hoover vehicle in
the left express lane adjacent to Flynn's vehicle which was
positioned "against the guardrail." He also said that none of
the vehicles appeared to have been moved before he arrived.
Trooper Hogan's investigation of the accident scene, which
included observations of the debris in the roadway, skid marks
and statements of the parties, led him to conclude that Bennett's
vehicle was stopped when it was hit by Hoover's vehicle. Hoover
was unable to explain what had happened due to his injuries.
Trooper Hogan measured 105 feet of skid marks on the road leading
from where Bennett's vehicle was initially struck to where he
observed it. He observed no skid marks prior to the point of
impact. He also identified an additional 44 feet of skid marks
across the grassy median to the point of Hoover's collision with
the Flynn vehicle.
Nicholas Bellizzi, a professional engineer, testified for
plaintiffs as a motor vehicle accident reconstruction expert.
Bellizzi calculated Hoover's speed to be approximately 87.46
miles per hour.
After all the evidence was presented, the trial judge took
the issue of the passengers' comparative negligence from the jury
and found that Hoover was negligent as a matter of law. The
judge instructed the jury:
that there is at least some negligence and
proximate causation attributable to Mr.
Hoover. That under the facts in the case,
that that is a finding of the Court.
So you need not worry about the issue of
whether he was negligent or not. The only
issue that you may reach is to what degree he
[was] negligent compared with [Ms. Bennett].
The Court has also ruled that there has
been no evidence of negligence by any of the
passengers of the vehicle ... [and] no
evidence of negligence on their part.
So the only issues you will be
considering is whether Ms. Bennett was
negligent and if she was negligent what was
the relative negligence of the two parties,
as between her and Mr. Hoover.
In his final instructions, the judge charged the jury on its
responsibility to decide whether Bennett was negligent and, if
so, the "relative percentage of negligence" of Bennett and
Hoover.See footnote 3 By a vote of 6-0, the jury responded "no" to the
question "[w]as the defendant, LaSharra Bennett negligent, which
negligence was a proximate cause of the accident."
Hoover and Solutions argue that the trial court inappropriately removed from the jury the issue of comparative negligence as it related to the passengers in the Bennett
vehicle. They further claim that the issue of proximate cause
was also a jury question "in that plaintiffs would not have been
injured `but for' their failure to alight from the disabled
vehicle." They cite Polistina v. Polistina,
183 N.J. Super. 291
(App. Div. 1982), for the proposition that "[t]he passengers'
duty to attend to their own safety translates into a duty to
alight from a vehicle disabled in a location that exposes its
occupants to extreme danger."
The applicable standard in deciding a motion for directed
verdict requires that the trial judge "evaluate all the evidence
in the light most favorable to the non-moving party."
Caterinicchio v. Pittsburgh Corning Corp.,
127 N.J. 428, 437
(1992) (citing Dolson v. Anastasia,
55 N.J. 2, 5-6 (1969)); see
also Brill v. Guardian Life Ins. Co. of America,
142 N.J. 520,
536 (1995).
Here, defendants argue that the trial judge's determination
that there was no testimony that the Bennett vehicle was stopped
long enough to raise a jury issue as to comparative negligence
pertaining to the passengers (excluding Bennett) overlooked the
fact that plaintiffs gave varying testimony giving rise to
different inferences regarding how long the car was stopped on
the highway and how long the passengers remained therein before
the accident. Defendants point to "[t]he undisputed fact" that
places of "safe haven" were close at hand, and that plaintiffs
"easily could have alighted from the disabled vehicle and removed
themselves to a place of safety."
We agree with the trial judge that the evidence did not
present a genuine issue of comparative negligence as applied to
the passengers, substantially for the reasons given by the judge.
Irrespective of the differences in the testimony as to when the
movie was scheduled to start and when the group left the theater
area, there was no evidence by which the jury could reasonably
conclude that the Bennett vehicle was stranded for any longer
than a short period before getting hit by Hoover. Hoover's
amnesia prevented him from testifying and he presented no
evidence to the contrary. Moreover, given the fact that
Bennett's vehicle was at a complete stop in the middle of the
Garden State Parkway, it seems unreasonable to expect the
passengers to exit the vehicle to get to a "safe haven" in the
middle of the night in the time they had. Cf. Polistina, supra,
183 N.J. Super. 291 (where the vehicle may have been stopped
partially on the shoulder of the highway, the driver exited the
vehicle, and the passengers remained therein at least for "a few
minutes" on a rainy or "misty" night). In any event,
[i]t is elementary that a following car in
the same lane of traffic is obligated to
maintain a reasonably safe distance behind
the car ahead ... [and] [f]ailure to do so
resulting in a collision, is negligence, and
a jury should be so instructed.
[Dolson, supra, 55 N.J. at 10.]
As in Dolson, here "there was no sufficient evidence of contributory negligence on the part of [the passenger plaintiffs] which proximately contributed to the collision." Id. at 11. Like the plaintiff in Dolson, the passengers here did not in any
way either contribute to the accident or contribute to their
injuries by merely remaining in the vehicle for a short period
after the car broke down. Hence, the issue of the comparative
negligence of the passengers in the Bennett vehicle was properly
removed from the jury's consideration.
Defendants also argue that the trial court erroneously
directed a verdict against Hoover as to the passengers and
improperly charged the jury on Bennett's claim because there was
ample evidence to support the inference that Bennett's negligence
contributed to the accident and because Hoover was confronted
with a "sudden emergency" caused by Bennett.
It is well established that "the violation of motor vehicles
statutes is evidence of negligence." Paiva v. Pfeiffer,
229 N.J.
Super. 276, 280 (App. Div. 1988). "However, where a motor
vehicle statute codifies the common law standard, the violation
of the statute is not evidence of negligence, it is negligence."
Ibid. (citing Dolson, supra, 55 N.J. at 10). Thus, the failure
to maintain a reasonably safe distance behind the vehicle ahead
resulting in a collision is negligence as a matter of law, and a
jury should be so instructed. Dolson, supra, at 10; see also
Eaton v. Eaton,
119 N.J. 628, 642-43 (1990); Paiva, supra, 229
N.J. Super. at 279-80. In Paiva we stated that "[i]t is beyond
dispute that had [defendant] rear-ended the [vehicle] he was
following the Dolson charge would have been totally appropriate."
Id. at 282.
We thus agree with the trial judge's conclusion in this
case:
if this isn't a case that fits within Dolson
versus Anastasia, I don't know what is. ...
If [they] were sitting there on the highway,
stopped when he came along, flashers or no
flashers, he had plenty of time to see them.
Even if they stopped in front of him, Dolson
... covers that. You're supposed to maintain
a safe following distance so that even if
someone does do a sudden stop, you're able to
avoid them. ...
Even two to five seconds for a fully
stopped vehicle ... is plenty of time to
avoid the vehicle. ...
Under Dolson ... there is more than
enough time for a following vehicle to avoid
them there, especially when there is no
traffic in either other lane.
I can't see any scenario under which a
reasonable jury could not find Mr. Hoover to
be negligent. So, therefore, I would have to
enter a directed verdict of negligence as to
Mr. Hoover and no comparative negligence as
to the passengers.
Defendants' argument that Hoover was confronted with a "sudden emergency" caused by Bennett is also unpersuasive. See Finley v. Wiley, 103 N.J. Super. 95, 103 (App.Div. 1968) ("defendant was faced with no more than an everyday traffic problem for which he should have been prepared"). Defendants' reliance upon La Mandri v. Carr, 148 N.J. Super. 566 (App. Div. 1977), is misplaced. There we found "no evidence of any `tailgating' by plaintiff prior to defendant's loss of control of his vehicle" and therefore concluded that the trial court improperly instructed the jury about the tailgating statute. Id. 572-73. Here, however, there was evidence Hoover was driving
well above the posted speed limit on the Garden State Parkway
when he hit a car that broke down in his lane of traffic. "To
invoke the sudden emergency doctrine and to be entitled to that
charge to the jury, a party must have been confronted by a sudden
emergency over which he had no control, without fault on his
part." Roberts v. Hooper,
181 N.J. Super. 474, 478 (App. Div.
1981). Accordingly, failure to maintain a reasonable following
distance warranted a Dolson charge.
On their cross-appeal, plaintiffs argue that defendants' insurance carrier should have been required to pay prejudgment interest under R. 4:42-11(b). The trial judge denied the application, holding that "this court cannot use policy considerations to override the clear mandate of the Supreme Court decision" in Kotzian v. Barr, 81 N.J. 360 (1979).See footnote 4 While defendant's policy provided that "Our payment of the LIABILITY INSURANCE limit ends our duty to defend or settle," plaintiffs contend that the factual circumstances in this case are "clearly distinguishable" from Kotzian, supra, which held that the payment of prejudgment interest was not required in a case involving payment of the policy limits.
In Kotzian, supra, the plaintiffs made unreasonable
settlement demands because they demanded prejudgment interest of
about $100,000 while the defendant's carrier offered a settlement
of the $15,000 policy limits. See 81 N.J. at 360-61, 364-65.
The Court found that prejudgment interest was not warranted,
stating:
Were policy limits not involved, we would
have little difficulty in concluding that
prejudgment interest should be assessed in
this case. Surely ... [the insurance
company] could have immediately deposited the
policy limits into court, as it eventually
did. However, we are not prepared to say
that [the insurance company's] failure to
have made earlier deposit of its full policy
limits, having sought early in the
proceedings to make the money available to
plaintiffs by its offer, should result in the
company's being required to pay over and
above the amount contracted for with its
assured. This is not to say that the
insurance contract is so sacrosanct that
misconduct or bad faith on the part of the
carrier would protect it against a claim for
prejudgment interest over its policy limits;
but that is not the case here ....
[Id. at 367 (internal citations omitted).]
Thus, the Supreme Court majority held that there was "no mistaken
exercise of the trial court's discretion" by denying prejudgment
interest under the circumstances. Ibid.
Here, we are told the policy limits were ultimately offered
in settlement by Hoover's carrier, but the record before us
reveals little regarding what was offered, and when, before the
matter was tried as to liability. Apparently, no policy proceeds
were paid into court. In fact, it is unclear from what is before
us whether the policy limits were offered to settle the case or
that the parties merely agreed to stipulate damages and a
division of the policy proceeds contingent on the jury's findings
as to liability. Moreover, we have no record as to the impact
the bankruptcy proceedings involving Hoover,See footnote 5 and the
declaratory judgment action regarding which carrier had primary
liability, may have had on the timing of a settlement offer. In
any event, we do not read the Supreme Court majority in Kotzian
as barring prejudgment interest no matter when the policy limits
are offered or how late that offer may be made before trial
irrespective of the merits of the defense - merely because the
verdict exceeded the "amount [the carrier] contracted with its
assured." 81 N.J. at 367.See footnote 6 Cf. Heim v. Wolpaw,
271 N.J. Super. 538, 542-44 (App. Div.), ("prejudgment interest should not have
been awarded except for the period from the commencement of the
action until appellant deposited the limit of its policy in court
and offered it to plaintiffs in settlement of their claims
against the insureds"), certif. denied,
137 N.J. 316 (1994).
R. 4:42-11(b) provides that prejudgment interest shall be
awarded in tort actions except "that in exceptional cases the
court may suspend the running of such prejudgment interest." On
the other hand, the impact of the policy limits, the stay of the
bankruptcy court and the declaratory judgment proceedings must be
considered in this context. The judge's ruling on prejudgment
interest must be reconsidered under the facts of the case.
Accordingly, we remand for reconsideration and a statement of the reasons on plaintiff's application for prejudgment interest.
The judgment is affirmed on defendant's appeal, and we remand for reconsideration of the issue of prejudgment interest raised on plaintiffs' cross-appeal. We do not retain jurisdiction.
Footnote: 1There is no issue raised as to Flynn. Footnote: 2A transcript of the new trial motion has not been presented to us. The record reflects an order denying plaintiff's application for prejudgment interest "on moving papers." Footnote: 3The judge also charged as to the impact of Bennett's knowledge of any defects with her car. Footnote: 4Although the papers submitted on the motion for prejudgment interest are not before us, plaintiffs suggest that unless prejudgment interest is awarded there would be no incentive for carriers to offer policy limits before the date of trial, while they make interest on their money, and that R. 4:42-11(b) is designed to encourage early settlement. Footnote: 5The order of the bankruptcy court in the record before us is undated and refers to this case as involving a "pre-petition personal injury" claim. Footnote: 6Defendant points to Pressler, Current N.J. Court Rules, comment 2 on R. 4:42-11(b), as stating that the rule of Kotzian absolutely prohibits the award of prejudgment interest "to the extent that such interest would increase its maximum contractual obligation under the policy." We do not so read the comment which states: "[d]espite the interest requirement of the rule, a carrier has been held not to be under obligation to pay prejudgment interest to the extent that such interest would increase its maximum contractual obligation under the policy," citing Kotzian (emphasis added).