Auto Law

By Joshua Romirowsky, Esq. (215-575-2742 or jhromirowsky@mdwcg.com)

Delaware

As A Matter Of First Impression, A Party May Be Compelled To Pay An Opposing Party's Expert's Fees For The Time The Expert Prepared For His Deposition; However, The Expert's Preparation Fees Must Be Capped At The Fee For The Corresponding Deposition.
Reid v. Johnston, 2009 Del. Super. LEXIS 443 (Del. Super. Dec. 3, 2009) (Slights, J.)

This case arose out of a rear-end automobile collision, allegedly causing personal injuries to the plaintiff. The defendant hired an expert neurologist to examine the plaintiff and offer an opinion at trial regarding the plaintiff's alleged injuries. The plaintiff sought to depose the expert. The issue presented is the maximum fee the defendant's expert may charge the plaintiff to prepare for his deposition. As a matter of first impression, the court cited to Delaware Superior Court Civil Procedure Rule 26(b)(4)(C)(i) and the underlying policy of fostering efficient discovery processes. The court noted that the defendant has little to gain from allowing the plaintiff an opportunity to depose its expert. Furthermore, taking time to prepare for a deposition will make the deposition more efficient. It is therefore reasonable to find that the plaintiff must reimburse the expert for his actual deposition preparation time at his deposition rate, up to the time taken to conduct the deposition itself. Charges incurred in "preparation" for a deposition, however, can only include time necessary to "refresh the expert's recollection of facts already reviewed and opinions already expressed[,]" and not "time to conduct new research or to review new facts" or time spent strategizing with counsel.

Florida

When A Plaintiff Seeks Compensation From Its Uninsured Motorist Carrier, The Party Is Not Waiving Its Right To Seek Compensation From A Defendant.
Bueno v. Workman, 20 So. 3d 993 (Fl. Dist. Ct. App. Oct. 28, 2009) (Gerber, J.)

This action arises out of a motor vehicle collision in which the plaintiff was rear-ended by the defendant's vehicle and filed a subsequent negligence claim. The defendant claims that the cause of the accident was by an unidentified "phantom" third-party who rear-ended the defendant and left the scene. According to the police report, both parties reported a "phantom" vehicle as causing the accident. The plaintiff later denied existence of the "phantom" vehicle. The plaintiff recovered $30,000 in uninsured motorist ("UM") benefits from her insurance carrier and subsequently commenced this action. The trial court dismissed the action based, in part, on the doctrine of waiver. The appellate court held that it was error to find waiver because the fact that the plaintiff sought compensation from her UM carrier did not imply that she intended to relinquish her right to seek compensation from the defendant. The decision was reversed and remanded to the lower court for further findings.

Ten Attempts At Service Within The Statute Of Limitations Constituted Good Cause For Exceeding The Deadline And Did Not Warrant Dismissal.
Roberts v. Stidham, 19 So. 3d 1155 (Fl. Dist. Ct. App. Oct. 16, 2009) (Singbush, J.)

The plaintiff-appellant commenced this action on July 23, 2007, claiming personal injury damages allegedly caused by a motor vehicle accident on October 20, 2003. The defendant-appellees were served on December 22, 2007. After being served, the defendant moved to dismiss the complaint based on the claimant's failure to comply with the service requirements of Florida Rule of Civil Procedure 1.070(j). The plaintiff claimed that she had good cause for failing to serve process within 120 days. Her argument was based on her sworn statement asserting that her process server made ten attempts to serve process. The appellate court found this to be good cause and found that the trial court abused its discretion in dismissing the lawsuit.

New Jersey

A Jury Is Permitted To Reject An Uncontested Expert's Opinion Regarding The Plaintiff's "Permanent" Injuries In Reaching The Verbal Threshold For Awarding Noneconomic Damages.
Ganguly v. Vitabile, 2009 N.J. Super. Unpub. LEXIS 3070 (N.J. Super. Ct. App. Div. December 18, 2009)

The plaintiff sued for damages resulting from an automobile rear-end collision. Under New Jersey's Automobile Insurance Cost Reduction Act, N.J.S.A. § 39:6A-8(a), a plaintiff cannot recover non-economic damages unless he overcomes the verbal threshold requirement of sustaining a "permanent" injury as defined by the statute. The plaintiff argued that the court should have granted his motion for a directed verdict because his expert opined that the plaintiff sustained a permanent injury to his right knee and the defendant's expert did not address the issue of permanency. The plaintiff argued that this presented undisputed evidence, no factual issue for a jury, and grounds for a directed verdict. The appellate panel found that a jury is free to reject expert testimony where facts in record permitted the jury to conclude that the injury to the plaintiff's right knee was not permanent because the knee "healed to function normally" after the automobile accident. Therefore, the motion for a directed verdict was properly denied.

A Verdict Is Not Excessive Because It Is Greater Than What An Experienced Judge Might Expect In Similar Circumstances.
He v. Miller, 2009 N.J. Super. LEXIS 258 (N.J. Super. Ct. App. Div. Dec. 15, 2009)

This action stemmed from a motor vehicle accident in which the plaintiff's vehicle was struck head-on by the defendant's. The jury found the defendant to have been negligent and awarded plaintiff $1 million for pain and suffering, $110,000 for past lost wages, $500,000 for future lost wages, and $100,000 to the plaintiff's husband for loss of consortium. The defendant filed a post-verdict motion seeking a new trial or, in the alternative, a remittitur. The trial judge granted the motion, in part, finding the awards excessive and shocking to the conscience. On appeal, the Supreme Court remanded the matter to the trial judge "for a complete and searching analysis" under Johnson v. Scaccetti, including an assessment of comparable jury verdicts. The trial judge thereafter considered verdicts from other trials and, referring to his "feel of the case," he adhered to his earlier ruling that the awards were excessive. On appeal, The Appellate Court held that the verdict was not excessive and shocking because it was greater than what an experienced judge might expect in similar circumstances. A judge's "feel of the case" is not an appropriate measure of excessiveness and insufficient to establish that the verdict constituted the manifest denial of justice required to set aside a jury's finding. The judge incorrectly relied on his observations of the plaintiff during the course of the four-day trial. A trial judge's "feel of the case" may not replace a jury's finding when the evidence indicates the jury possessed a different view of the facts. The trial judge's analysis of the verdicts in other cases was inadequate and inconsistent with New Jersey law. The award of $1 million for pain and suffering stemming from a permanent injury endured by a 46-year-old plaintiff, who sustained four herniated discs due to the defendant's negligence, did not constitute a manifest miscarriage of justice.

New York

The Defendant's Good-Faith Efforts To Obtain Additional Verification About The Offending Vehicle Being Uninsured Constituted Good Cause For Not Addressing Plaintiff's Claim.
Ave T MPC Corp. v. Motor vehicle Accident Indemnification Corp., CV-067114-05/BX (Bronx Cty. Civ. Ct. Nov. 13, 2009) (Tapia, J.)

The plaintiff moved for summary judgment in this no-fault action arising from a pedestrian "knockdown" accident. The defendant requested to respond to the plaintiff's discovery demands. The plaintiff submitted claims on behalf of its assignor, and the defendant requested that the plaintiff provide proof of lack of insurance and a "household affidavit" within 30 days. The court noted that as the defendant did not receive timely responses to its verification demands, the 30-day period in which it had to address the plaintiff's claim was never triggered. The court noted that, even though the plaintiff established it sent the defendant proof of claim, the defendant's good-faith efforts to obtain additional verification about the offending vehicle being uninsured constituted good cause for not addressing the claim. The defendant successfully raised a triable issue of fact as to whether the plaintiff provided relevant information needed to take action on the no-fault claim. The court also held that the defendant was precluded from responding to discovery demands having failed twice before to do so. Thus, the plaintiff and the defendant's cross-motions for summary judgment were denied.

Defendant Fails To Rebut Plaintiff's Prima Facie Evidence Of Negligence Where Defendant Rear-Ended A Stopped Vehicle In Heavy Traffic, Even Though Defendant Was Only Driving 5 Miles Per Hour.
Musharbash v. Duran, 22054/07 (N.Y. App. Div. Oct. 21, 2009) (Scheinkman, J.)

The plaintiffs sought to recover damages for personal injuries they allegedly sustained due to a motor vehicle accident where the defendant rear-ended the plaintiff's vehicle. The court ruled a rear-end collision with a stopped vehicle established prima face negligence by the driver of the following vehicle. At the time of the accident, the defendant's vehicle was moving approximately five miles per hour, and he had his foot on the brake. However, "[e]vidence of a 'sudden stop' in heavy traffic is insufficient to rebut the inference of defendant's negligence since defendant should have anticipated that cars ahead of her would come to a stop."

Ohio

Where Appellant Argues That The Weight Of The Evidence Requires A New Trial, An Appellate Court Cannot Address Appellant's Arguments Without Resorting To Complete Relevant Portions Of The Transcript Of The Trial Proceedings. Williams v. Williams, 2009 Ohio App. LEXIS 5159 (Nov. 18, 2009)

This action arises out of a motor vehicle accident where the defendant-driver's vehicle slid into the back of the victim's vehicle at an intersection. The parties stipulated that the driver's negligence caused the accident. The jury returned a verdict with no damages on the issues of proximate cause and damages. The trial court found that the verdict was not against the weight of the evidence due to the conflicting evidence that was apparently presented. On appeal, the appellate court found that the transcript was incomplete under Ohio Appellate Rule 9 because the weight of the evidence arguments presented by the victim were based upon even the non-testimonial portions of the trial such as jury instructions, closing argument, and presentation of the verdict forms. Ohio Appellate Rule 9(A) states that "a weight of the evidence argument requires the appellant to order a transcript of all evidence relevant to the finding or conclusion said to be contrary to the weight of the evidence." Since the appellant argues as to the weight of the evidence, the appellant should have filed an affidavit that the non-transcribed portions of the transcripts "were merely procedural portions that contained no factual matters." As a result, the appellate court affirmed the trial court's ruling "[b]ecause appellant's argument (that the weight of the evidence requires a new trial) cannot be addressed without resort to the transcript of proceedings before the jury[.]"

Pennsylvania

The Superior Court Upheld An Insurance Policy's Venue Clause Requiring A Consumer To File Suit In The County In Which He Or She Lives.
O'Hara v. First Liberty Ins. Corp., 2009 Pa. Super. 214 (Pa. Super. Nov. 9, 2009) (Kelly, J.)

The Superior Court upheld an insurance policy's venue clause requiring a consumer to file suit in the county in which he or she lives, addressing an issue of first impression created by the abolition of the Pennsylvania's Insurance Department's arbitration requirement for uninsured/underinsured motorist insurance policies. Prior to the Pennsylvania Supreme Court's 2005 Koken decision, insurance carriers were required to arbitrate UM/UIM claims. The Koken Court held that the state Insurance Department did not have the authority to mandate arbitration. The forum selection clause at issue provides that a suit "must be brought in a court of competent jurisdiction in the county and state of your legal domicile at the time of the accident." Upholding the clause, the court notes that the forum selection clause uses clear and unambiguous language and, therefore, is "required to give effect to that language[.]'" The court rejected the plaintiffs' argument that the clause is unenforceable because it conflicts with Rule of Civil Procedure 2179 and Pennsylvania's policy of allowing a plaintiff his choice of forum.