October 2006, No.6

October 2006, Vol. V, No. 6

If a Case is Reinstated After the Discovery End Date, What Happens to Discovery? Depends on what party you are. In Sprankle v. Adamar of New Jersey, Inc., 388 N.J. Super. 216 (Law. Div. 2006), the defendant successfully moved to dismiss the plaintiff's personal injury case for failing to answer interrogatories. Following the expiration of the discovery end date and the production of the answers, the trial court reinstated the complaint. The question of what, if any, discovery to allow was one of first impression. The court ultimately found that the non-delinquent party had the right to conduct discovery upon a showing of good cause, but that the delinquent party could only obtain discovery upon a showing of exceptional circumstances. The court reasoned that to allow the delinquent party discovery under good cause would circumvent the purpose of discovery end dates and would allow for gamesmanship. In Sprankle, the plaintiff did not show exceptional circumstances because she did not show why the discovery was not produced timely or why the complaint was not reinstated before the discovery end date. The trial court's decision is rationally based, but a bit restrictive. What harm would be caused by permitting a 30 or 60-day window of discovery for both parties. We understand the need to move cases expeditiously, but the exceptional circumstances standard imposed on the delinquent party is unnecessary.

Is a Tortfeasor Responsible for Prejudgment Interest When a Jury Renders a Verdict in Excess of the Guaranty Association's Limit ($300,000)? For those of you who said no, you are only partly correct because it depends on who controls the defense and settlement negotiations. In Smith v. Moustiaste, -- N.J. Super. -- (Law Div. 2006), the trial court ruled that in cases where the tortfeasor controls the defense and settlement negotiations, he is responsible for prejudgment interest when a jury renders an excess verdict. In reaching this conclusion, the trial court relied heavily on Johnson v. Braddy, 376 N.J. Super. 215 (App. Div. 2005), aff'd 186 N.J. 40 (2006), which this column has previously discussed for the proposition that a tortfeasor is personally liable for any damages in excess of the Guaranty Association's $300,000 limit. The trial court also found that the Supremes' comment in Johnson that if the Association controls the defense and the tortfeasor has no control over the timing of the settlement negotiations, it would be unfair to impose the liability of prejudgment interest on the tortfeasor. Important case for those of you who are defending tortfeasors whose insurance companies have become insolvent – advise your clients of the additional level of exposure. This ruling is consistent with Johnson, and properly holds the tortfeasor responsible in situations where her delay caused the prejudgment interest to increase.

Can an Uninsured Motorist Recover Non-Economic Damages When He Is Involved in an Accident as a Pedestrian? Some of you may think that this is easy, and you would be correct – yes, he can. In Dzuiba v. Fletcher, 382 N.J. Super. 73 (App. Div. 2005), aff'd 2006 N.J. Lexis 1340 (2006), the Appellate Division found that N.J.S.A. 29:6A-4.5a, which precludes uninsured motorists from recovering non-economic damages, does not apply to instances where the uninsured motorist is a pedestrian. The Appellate division reasoned that the statute requires that an uninsured car be involved in the accident. Note, however, that the panel's reasoning does not apply to PIP benefits because the statutory scheme for PIP benefits does not require that the uninsured car be involved in the accident.

Contributions. If you have an interesting case, rule interpretation, ethics issue, or civil-related story, please contact me at (201) 918-3560, (f) (201) 845-5973, or e-mail mjepstein@epsteinbeirne.com.

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