Opinion
DOCKET NO. A-6238-12T1
03-04-2015
MARILYN Y. DOMENA, Plaintiff-Appellant, v. NEW JERSEY RE-INSURANCE COMPANY, Defendant-Respondent.
John M. Amorison, attorney for appellant. McElroy, Deutsch, Mulvaney & Carpenter, attorneys for respondent (Joseph A. Campbell, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Sumners. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1822-11. John M. Amorison, attorney for appellant. McElroy, Deutsch, Mulvaney & Carpenter, attorneys for respondent (Joseph A. Campbell, on the brief). PER CURIAM
On March 15, 2008, plaintiff Marilyn Y. Domena's automobile was rear-ended while stopped at a red light. As a result, plaintiff alleges she suffered permanent injuries. After reaching a settlement with the other driver, plaintiff filed suit against defendant New Jersey Re-Insurance Company, her insurance provider, pursuant to the underinsured motorist provision of her policy.
Ten days prior to trial, the Law Division granted defendant's summary judgment motion dismissing the complaint on the ground that plaintiff did not comply with the verbal threshold requirements of N.J.S.A. 39:6A-8(a) by providing an expert report certifying that she sustained a permanent injury from the auto accident based upon objective evidence. The court rejected plaintiff's then-counsel's argument that the physician's certificate of permanency and MRI reports provided in discovery satisfied the verbal threshold requirements. There was no direct appeal of that decision.
However, six months later, through new counsel, plaintiff filed a Rule 4:50-1(f) motion to vacate the order dismissing her complaint. In support of the motion, plaintiff submitted expert reports from four of her treating doctors opining that she sustained permanent injuries from the auto accident. In addition, plaintiff certified that her prior counsel was not prepared at oral argument to oppose defendant's summary judgment motion, that prior counsel appeared intoxicated, and that she was not aware of him asking any of her doctors to author a report to comply with N.J.S.A. 39:6A-8(a). The same motion judge who granted defendant's summary judgment denied plaintiff's motion to vacate the order. The judge expressed appreciation of new counsel's effort and sympathy with plaintiff because her prior counsel did not obtain an expert report needed to defeat summary judgment. Nevertheless, he concluded that prior counsel's errors did not constitute exceptional circumstances under Rule 4:50-1(f) to vacate the summary judgment order dismissing her complaint.
On appeal, plaintiff contends that the motion court erred in denying her Rule 4:50-1(f) motion to vacate the order dismissing her complaint. We agree and reverse.
Rule 4:50-1 authorizes a court to relieve a party from a final judgment or order for reasons such as: mistake or inadvertence, certain newly discovered evidence, fraud, the judgment or order is void, or the judgment has been satisfied, R. 4:50-1(a)-(e). Rule 4:50-1(f) is a catch-all provision that authorizes a court to relieve a party from a judgment or order for "any other reason justifying relief from the operation of the judgment or order." The essence of subsection (f) is to achieve equity and justice in exceptional situations that cannot be easily categorized. DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 269-70 (2009) (citing Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)).
We review a court's determination of a Rule 4:50-1 motion under an abuse of discretion standard. U.S. Bank National Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). There is "an abuse of discretion when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Id. at 467-68 (internal quotation marks and citation omitted).
Plaintiff does not contend that the decision to grant summary judgment to dismiss her complaint for failure to provide an expert report was incorrect. It is clear that a plaintiff seeking pain and suffering damages based upon a permanent injury from an automobile accident must produce a physician's certified opinion substantiating that the injury is "based on 'objective clinical evidence' derived from accepted diagnostic tests and [which] cannot be 'dependent entirely upon subjective patient response.'" Davidson v. Slater, 189 N.J. 166, 181 (2007) (quoting N.J.S.A. 39:6A-8(a)). Rather, plaintiff contends that her attorney's malpractice in not satisfying a clear legal standard satisfies the exceptional circumstances required to vacate the dismissal of her complaint per Rule 4:50-1(f).
While there is no New Jersey case directly on point, several analogous decisions considering whether attorney error constituted exceptional circumstances under Rule 4:50-1(f) aid us in reaching our decision here. In Baumann v. Marinaro, 95 N.J. 380, 394-95 (1984), the Court found no exceptional circumstances where defendants sought to vacate a jury verdict due to their attorney's failure to call witnesses, object to a directed verdict, inform defendants of a hearing, and file timely motions. Yet, the Court acknowledged that there was disagreement "on when attorney error or neglect is a ground for relief under R. 4:50-1(f)." Id. at 397. The Court concluded that the attorney's lack of proper diligence was not truly exceptional circumstances to vacate a jury verdict where defendants had counsel for their trial and were free to move within time for a new trial. Id. at 395-97; cf. Perillo, supra, 48 N.J. at 347 (upholding trial court decision to vacate default judgment under R.R. 4:62-2(f), predecessor to Rule 4:50-1(f), where attorney under mist of disbarment proceedings abandoned suit by not filing answer to complaint and misled defendant into believing "matter had been taken care of satisfactorily").
We relied upon Baumann in Hendricks v. A.J. Ross Co., 232 N.J. Super. 243, 248-49 (App. Div. 1989), where we found no Rule 4:50-1(f) exceptional circumstances existed where there was an apparent mistake, noting there was no explanation as to why defendant's counsel failed to submit a timely claim seeking credit for compensation benefits, and plaintiffs would suffer a hardship by having to return judgment money they expended. Then, in Posta v. Chung-Loy, 306 N.J. Super. 182 (App. Div. 1997), certif. denied, 154 N.J. 609 (1997), we found support in Hendricks to conclude that an attorney's failure to present an expert opinion at trial did not relieve a plaintiff from involuntary dismissal of his medical malpractice claim, noting "an attorney's error of law is not sufficient to relieve a party from a final judgment or order." Id. at 206.
However, in Jansson v. Fairleigh Dickinson University, 198 N.J. Super. 190 (App. Div. 1985), we employed Rule 4:50-1(f) to vacate a dismissal based upon the attorney's failure to provide timely interrogatory answers. We recognized the need "to reconcile the strong interests in the finality of litigation and judicial economy with the equitable notion that justice should be done in every case," and decided that absent demonstrable prejudice, "the sins or faults of an errant attorney should not be visited upon his client." Id. at 193-94. We set forth four factors to be considered in determining whether exceptional circumstances exist due to attorney error or misconduct warranting relief from judgment: "(1) the extent of the delay [between dismissal of case and motion to reopen], (2) the underlying reason or cause, (3) the fault or blamelessness of the litigant, and (4) the prejudice, that would accrue to the other party." Id. at 195. As to the last factor, we said: "We believe that in the absence of demonstrable prejudice to the other party it is neither necessary nor proper to visit the sins of the attorney upon his blameless client." Id. at 196.
Defendant argues that Jansson does not apply here because it involved discovery rules that were modified in 1990 and again in 2000 with the adoption of the "Best Practice" rules. See Albarran v. Lukas, 276 N.J. Super. 91, 95 (1994) (noting "we perceive no reason why our approach in Jansson should continue to govern this [R. 4:23-5] discovery default problem.")
However, the Jansson factors have since been applied to situations involving attorney malpractice unrelated to a discovery-rule violation. In Parker v. Marcus, 281 N.J. Super. 589, 591 (App. Div. 1995), certif. denied, 143 N.J. 324 (1996), we applied the Jansson factors to reverse the trial court ruling and granted the plaintiff's motion to vacate the dismissal of a lawsuit pursuant to Rule 4:50-1(f) due to an attorney's failure to appear at an arbitration hearing and tell the plaintiff about the dismissal. We allowed plaintiff to seek relief for his injuries despite a two-and-a-half-year delay in filing the motion to vacate as the delay was due to the attorney's cover-up and was not plaintiff's fault. Id. at 594-95.
Likewise, and more recently, in Ridge at Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 101 (App. Div. 2014), we vacated a summary judgment order and remanded the matter for the trial court to apply the Jansson/Parker factors in further consideration of a defendant's motion to be relieved of the consequences of his failure to adequately represent himself prior to entry of judgment. In doing so, we also recognized that "[h]ad defendant been represented by an attorney whose same acts or omissions led to the same result, the guidelines provided in cases such as Parker would have authorized the granting of Rule 4:50 relief." Id. at 99. Further, we reiterated the position taken almost half a century ago that with regard to Rule 4:50-1, "[o]ur courts have long adhered to the view that subsection (f)'s boundaries 'are as expansive as the need to achieve equity and justice.'" Id. at 98 (quoting Court Invest. Co. v. Perillo, supra, 48 N.J. at 341) (emphasis in original).
In this case, we are constrained to conclude that the motion judge abused his discretion, and should have applied the Jansson/Parker factors to vacate the summary judgment order dismissing plaintiff's complaint. Approximately six months following the dismissal, plaintiff's new counsel filed a motion to vacate summary judgment. Although plaintiff did not explain why her prior counsel did not submit an expert report to establish she sustained a permanent injury pursuant to N.J.S.A. 39:6A-8(a), it is apparent from prior counsel's opposition brief and oral argument that he did not understand a clear legal standard. Plaintiff's certification that to her knowledge prior counsel did not request reports from her doctors demonstrates her blamelessness for the dismissal. The fact that new counsel promptly obtained and submitted expert reports from four of plaintiff's treating physicians with the motion to vacate summary judgment, further evidences that it was prior counsel's failure alone that the complaint was dismissed. Lastly, outside of the expenses incurred in the motions below and this appeal, we are unaware of any prejudice to defendant. The trial court has discretion to condition the vacation of a judgment against plaintiff by reimbursing defendant for those reasonable fees and costs. Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92, 102 (App. Div. 1998), certif. denied, 158 N.J. 686 (1999); R. 2:11-4(c).
We do not believe that Baumann or any of the other aforementioned decisions finding no exceptional circumstances per Rule 4:50-1(f) due to attorney error or negligence require the same result here. Alleged attorney negligence is the sole cause of the dismissal of plaintiff's complaint. The hallmark of Rule 4:50-1(f) is to accomplish equity and justice. We are satisfied that the motion judge abused his discretion by imposing the former attorney's failure in not obtaining an expert report to oppose the defendant's summary judgment motion onto plaintiff. The fact that new counsel promptly addressed the prior deficiency speaks volumes to the injustice that would occur if plaintiff is not allowed to have her day in court.
Accordingly, we vacate summary judgment and remand for further proceedings. On remand, defendants may move for reimbursement of reasonable attorneys' fees and costs, including those incurred in connection with this appeal.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION