Summary
affirming entry of summary judgment in breach of insurance contract case where plaintiffs failed to produce competent expert testimony on the issue of liability or damages
Summary of this case from 151 E. Leaming Ave. Condo Ass'n v. QBE Speciality Ins. Co.Opinion
DOCKET NO. A-0335-13T3
05-27-2015
VINCENT BORDFELD and LESLIE BORDFELD, Plaintiffs-Appellants, v. THE PHILADELPHIA CONTRIBUTIONSHIP, Defendant-Respondent.
Richard N. Zuvich, attorney for appellants. Stephen E. Gertler, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Maven and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-889-12. Richard N. Zuvich, attorney for appellants. Stephen E. Gertler, attorney for respondent. PER CURIAM
Plaintiffs Vincent and Leslie Bordfeld appeal from an August 9, 2013 order granting summary judgment in favor of defendant The Philadelphia Contributionship. On the same date, the court entered a companion order denying plaintiffs' cross- motion to vacate an earlier order that barred the testimony of plaintiffs' expert witness. We affirm.
The notice of appeal recites that plaintiffs appeal from an order entered on August 9, 2013. The accompanying case information statement specifies that the appeal is taken from the "[o]rder for summary judgment dated August 9, 2013. See attached copy." No reference is made to the companion order, nor is it attached.
I.
We summarize the most pertinent undisputed facts. Plaintiffs are the owners of a home that they allege sustained substantial wind damage in August 2011 during Hurricane Irene, rendering it uninhabitable. The home was originally built in the 1780s, with an addition constructed around 1815 and another in the 1970s.
Defendant is an insurance carrier authorized to transact business in New Jersey. Defendant had issued a homeowners insurance policy to plaintiffs that was in effect at the time of the claimed loss. Following an investigation, defendant denied plaintiffs' property damage claim, relying on reports from its expert engineers who concluded that the damages were due to a combination of age, wear and tear over the life of the structure and not from the winds of Hurricane Irene.
Plaintiffs sued defendant in February 2012, seeking damages associated with the repair and/or demolition and reconstruction of the home. Originally, discovery was scheduled to end on September 10, 2012. On August 3, the court granted defendant's motion to dismiss plaintiffs' complaint for failure to answer interrogatories and two demands for production of documents. After plaintiffs had the case restored, the court entered a scheduling order on December 31, 2012. Among other things, the order extended discovery until April 10, 2013, required that defendant's expert reports be served by March 6, 2013, and compelled the deposition of plaintiffs' expert, Robert F. Wickel II, P.E., for March 19, 2013.
Wickel had issued reports on September 6 and November 23, 2011, concluding that the original 1780s portion of the home had sustained wind damage caused by gusts that exceeded the structural limits of its post and beam construction. Wickel further opined that the 1815 addition was damaged by the movement in the original structure, but the 1970s addition had been unaffected.
On February 20, 2013, the court sent a notice to the parties scheduling the case for trial on May 20, 2013. On March 8, 2013, the court entered an order granting defendant's motion to bar plaintiffs from introducing Wickel's expert reports and testimony at trial, based on plaintiffs' failure to provide Wickel's underlying file. The order noted that the motion was unopposed.
The May 20, 2013 trial date was adjourned to May 28 due to the unavailability of one of defendant's expert witnesses. The May 28 trial date was again adjourned due to plaintiffs' counsel's attendance at a funeral. On June 17, the court sent notice rescheduling the trial for September 9.
In the interim, defendant filed a motion for summary judgment on the grounds that, without expert testimony, plaintiffs could not establish the cause of the property damage to their home, and that they lacked competent proof of damages. On July 23, plaintiffs filed a cross-motion to vacate the March 8 order barring Wickel's testimony. In a supporting certification, plaintiffs' counsel averred that he had been unable to attend to his matters from January 28 until late April due to high blood pressure and stress.
Defendant opposed the cross-motion, pointing out that plaintiffs' counsel failed to submit any medical documentation substantiating his disability. Defendant also submitted correspondence exchanged during the period of counsel's claimed incapacity which failed to reference any illness, including a January 30, 2013 letter in which counsel stated:
Please note that I will be out of state on the date of Mr. Wickel's deposition of March
19, 2013. Please contact me to schedule another date for same. I am available any date on the week before or after the week of March 18, 2013. Please advise as to acceptable dates and I will arrange with Mr. Wickel.Defendant further argued that it would be unduly prejudiced if the March 8 order was vacated, citing the imminent September 9 trial date, and the need to conduct additional discovery and obtain supplemental expert reports.
The judge held oral argument on the competing motions on August 9, 2013. During argument, plaintiffs' counsel candidly conceded that his office was staffed and that he was in the office "occasionally" during the period of his illness. He further stated:
I'm aware of the fact that the motion [to bar plaintiffs' expert] came in. I'm aware of the fact that my secretary signed for it. I didn't manage the file at that point. I'm not . . . denying that.Counsel also conceded that his neglect of the matter did not establish excusable neglect sufficient to warrant relief from judgment. R. 4:50-1(a). Instead, counsel, referencing Rule 4:50-1(f), argued that plaintiffs would sustain undue prejudice should the order barring their expert's testimony not be vacated.
In denying plaintiffs' cross-motion to vacate the March 8 order, the court found that they failed to satisfy the standards for reconsideration, Rule 4:49-2, and relief from judgment or order, Rule 4:50-1. The judge observed that plaintiffs' counsel failed to provide medical proof corroborating his claimed illness, and that defendant had provided letters contradicting that claim. Moreover, even conceding counsel's illness, the court found that after he reportedly returned to work he took no action to vacate the order until the summary judgment motion was filed. The judge noted that the case was one month from trial and that to vacate the order would "send[] us back to the drawing board in terms of discovery." The court then granted defendant's summary judgment motion, since "without the expert . . . plaintiffs cannot prove how a 230-year-old house sustained damage from a tropical storm under this circumstance."
II.
On appeal of an order granting summary judgment, our review is de novo, using the same standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). A motion for summary judgment should be granted if there are no material facts in dispute and if the undisputed evidence, viewed most favorably to the non-moving party, entitles the moving party to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
On the other hand, we owe deference to a trial court's discretionary determination to grant or deny a motion to strike expert testimony. Townsend v. Pierre, 221 N.J. 36, 52-53 (2015). Additionally, a party seeking to vacate a judgment or order must satisfy Rule 4:50-1, which states in pertinent part that
[o]n motion, with briefs and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; . . . or (f) any other reason justifying relief from the operation of the judgment or order.We afford "substantial deference" to the trial judge and reverse only if the judge's determination on a motion to vacate amounts to a clear abuse of discretion. US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). An abuse of discretion is when a decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Ibid. (citation and internal quotation marks omitted).
Initially, we note that plaintiffs have not appealed the March 8, 2013 order barring Wickel's expert report and testimony, which in any event is entitled to deference. Nor do plaintiffs seek to vacate that order on the grounds of excusable neglect under Rule 4:50-1(a). Rather, on appeal, plaintiffs argue that they are entitled to relief under subsection (f), and that "the trial court failed to properly balance the inequity of the dismissal of . . . plaintiffs' complaint and the prejudice occasioned to . . . defendant by the vacating of [the March 8, 2013] [o]rder."
We disagree that Rule 4:50-1(f) justifies vacation of the order barring Wickel's expert testimony. Relief under subsection (f) "is available only when truly exceptional circumstances are present." Guillaume, supra, 209 N.J. at 484 (citation and internal quotation marks omitted). The applicability of this subsection is limited to "situations in which, were it not applied, a grave injustice would occur." Ibid. (citation and internal quotation marks omitted). Despite the harsh result, given our standard of "substantial deference," on this record we are unable to conclude that the judge clearly abused his discretion in failing to find that plaintiffs established such "exceptional circumstances."
We are also satisfied that the court was correct in entering summary judgment in favor of defendant in the absence of any competent expert testimony on liability or damages. "In general, expert testimony is required when 'a subject is so esoteric that jurors of common judgment and experience cannot form a valid conclusion.'" Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 450 (1993) (quoting Wyatt ex rel. Caldwell v. Wyatt, 217 N.J. Super. 580, 591 (App. Div. 1987)); accord Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982); see N.J.R.E. 702. Here, plaintiffs in their brief concede that expert evidence was needed to show that the home sustained wind damage during the storm in order to establish coverage under the policy. Accordingly, in the absence of such expert testimony, summary judgment was properly granted.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION