Opinion
DOCKET NO. A-1782-15T4
07-06-2016
TUYET M. TRAN, Plaintiff-Respondent, v. GIOVANNA GREGIN and ENCOMPASS INSURANCE COMPANY, Defendants-Respondents, and NEW JERSEY MANUFACTURER'S INSURANCE COMPANY, Defendant-Appellant.
Chad M. Moore argued the cause for appellant (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Malcolm McPherson, of counsel and on the brief). Michael D. Fitzgerald argued the cause for respondent Giovanna Gregin.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-65-12. Chad M. Moore argued the cause for appellant (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Malcolm McPherson, of counsel and on the brief). Michael D. Fitzgerald argued the cause for respondent Giovanna Gregin. PER CURIAM
By leave granted, New Jersey Manufacturers Insurance Company (NJM) appeals from the trial court's order granting defendant Giovanna Gregin summary judgment dismissal of its complaint, and that of its insured Tuyet M. Tran. We affirm.
I.
Tran alleged that on December 30, 2009, in Atlantic City, an unknown agent or servant of Gregin operated Gregin's vehicle, collided with the rear of Tran's vehicle, caused Tran injuries, and then fled the scene. As Gregin denied involvement, Tran alternatively sought relief from her insurer, NJM, which provided her uninsured motorist coverage. NJM filed an intervening complaint against Gregin.
NJM did so pursuant to Zirger v. General Acci. Ins. Co., 144 N.J. 327, 341 (1996), which held that subject to a trial court's discretion, "UM/UIM carriers ordinarily may intervene in their insured's action against the third-party tortfeasor." Tran, who has $300,000 of uninsured motorist protection, has not sought review of the summary judgment order.
NJM contends it presented sufficient competent evidence for a jury to conclude that Gregin's vehicle was involved in the collision, and that either Gregin or Gregin's agent was driving. As for the claim that Gregin's vehicle was involved, NJM relies principally on the fact that a responding Atlantic City police officer, Steven Cupani, included Gregin's Pennsylvania license plate number in his accident report. Cupani listed two witnesses as the apparent source of the number — Dep Pham and Maria Hankins. Based on the number they provided, Cupani identified Gregin as the owner of the involved vehicle. He included in his report Gregin's Pennsylvania address and vehicle information, including that it was a blue Dodge Ram. Tran's daughter Ann, a back-seat passenger who was fourteen at the time of the accident, testified that she could not recall the "parts of the license plates" she saw, but she recalled the plates were not New Jersey tags.
We note that Tran's complaint did not allege that Gregin was at the wheel. She alleged an agent or servant was driving. NJM's intervening complaint does not expressly allege who was driving.
After the word "WITNESS'S" [sic], Officer Steven Cupani wrote Hankins's name, her address and phone number, then Pham's name, address and phone number, and then wrote "(Provided License # of VEH 2)." Cupani testified in 2015 that he "assume[d] that they both gave [him] the license provided, not just Pham because it's in parentheses and it's after a period."
Gregin owned a 2001 Dodge Ram pick-up truck at the time of the collision. Ann Tran testified that a shiny, blue or black pick-up truck collided with her mother's vehicle. Photographs of Gregin's vehicle depicted slight damage on the front bumper, which NJM contends is additional, circumstantial evidence that Gregin's vehicle was involved in the collision. The vehicle appears to be black in the photographs.
In support of its claim that either Gregin or her agent was operating the vehicle, NJM contends there is a rebuttable presumption of agency between the owner of a vehicle and a non-owner operator. See Harvey v. Craw, 110 N.J. Super. 68, 73-74 (App. Div.), certif. denied, 56 N.J. 479 (1970). Ann Tran testified that a man in his twenties or thirties was driving the truck, and a second man was a passenger. Gregin admitted that her ex-husband and ex-step-son were "in her life" at the time.
Gregin denied that she permitted anyone to use her vehicle in Atlantic City on the day of the collision. She did not remember where she was on that date, but guessed that she was in Pennsylvania. However, she admitted that she occasionally drove to the Shore during the winter of 2009, and that her mother owned an investment property in Atlantic City at the time. She also stated that five or six years before her March 2015 deposition, she moved out of her Pennsylvania address, lived in Margate for a year, and then lived at her mother's Atlantic City property for four or five years. However, she asserted she sold the pickup truck before she moved to the Shore. Gregin stated her vehicle was not stolen and she never let her ex-husband, ex-step-son, or anyone else drive her truck. Gregin's ex-husband certified that he was separated from Gregin at the time of the accident and never operated her 2001 Dodge Ram while she owned it.
Gregin questioned the accuracy of the license plate report, admitting in her statement of material facts only that Hankins and Pham "allegedly provided a license plate number of the vehicle that left the scene." Dep Pham was never deposed.
At her deposition, Hankins testified she could not recall noticing a license plate number or giving it to police. She stated she was traveling in the same single lane as Tran when the collision ahead of her stopped traffic. There was a car between her and Tran, but it was not involved in the accident, and she could not recall what it looked like. She said she did not actually observe the accident, but remembered that "[t]he people were pointing that a car drove away." She got out of her vehicle and offered the use of her phone, and assisted Tran, who had difficulty speaking English, in calling the police.
The trial court held there was insufficient evidence to establish that Gregin or her agent operated the vehicle that struck Tran's. The court found it undisputed that the driver of the vehicle that struck Tran was a male, and that there was no evidence that the male driver was acting as Gregin's servant or agent. In response to a motion for reconsideration, the court reiterated its conclusion, and rejected NJM's argument that a jury could find that Gregin herself was driving the vehicle.
The court erroneously stated that two eyewitnesses, in addition to Ann Tran, identified the driver as male. Our review of the record indicates that only Ann Tran identified the driver as male.
On appeal, NJM contends that a reasonable jury could conclude that Gregin's vehicle was involved and that she, or her agent, was operating it. NJM again relies on the presumption that "use of an automobile upon a public highway by one who is not its owner raises a presumption of agency between the operator and the owner." Harvey, supra, 110 N.J. Super. at 73.
Gregin disputes that her vehicle was involved in the collision. She contends a male driver was seen operating the vehicle that struck Tran, and she denied authorizing any male agent to use her vehicle.
II.
We review de novo the trial court's summary judgment decision, applying the same standard that governs the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). We must determine whether the evidence presented, "when viewed in the light most favorable to the non-moving party, [is] sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The evidence must be "competent." Ibid.; see also Jeter v. Stevenson, 284 N.J. Super. 229, 233 (App. Div. 1995) ("[E]vidence submitted in support of a motion for summary judgment must be admissible."); R. 1:6-6.
We review evidentiary rulings preliminary to determinations of summary judgment motions for an abuse of discretion. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384-85 (2010). "However, '[w]hen the trial court fails to apply the proper test in analyzing the admissibility of proffered evidence,' our review is de novo." Konop v. Rosen, 425 N.J. Super. 391, 401 (App. Div. 2012) (quoting Pressler & Verniero, Current N.J. Court Rules, comment 4.6 on R. 2:10-2 (2012)).
Applying these standards, we conclude that summary judgment was properly granted, but on grounds other than those upon which the trial court relied. See State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011) ("We are free to affirm the trial court's decision on grounds different from those relied upon by the trial court."). The linchpin of NJM's claim that Gregin was responsible for Tran's injuries — by driving the vehicle herself or permitting an agent to drive it — is the evidence that a vehicle with her license plate number was observed leaving the scene. However, the only proposed evidence that Gregin's license plate number was viewed at the scene is inadmissible hearsay.
NJM relies on Cupani's police report, which included Gregin's Pennsylvania license plate number. However, Cupani did not observe the license plate himself. Pham and Hankins allegedly made out-of-court statements to Cupani that they observed a vehicle with a license plate bearing a certain number, issued by a certain state. Thus, the license plate report that Cupani weakly attributed to Pham and Hankins is embedded hearsay. Cupani's police report, even if admissible as a business or government record, is admissible only to establish that Cupani recorded what Hankins and Pham allegedly said. See N.J.R.E. 803(c)(6); N.J.R.E. 803(c)(8)(A). To introduce the out-of-court statements of Pham and Hankins for the truth of the matter they asserted, NJM must rely on a separate hearsay exception. See Manata v. Pereira, 436 N.J. Super. 330, 345 (App. Div. 2014); Konop, supra, 425 N.J. Super. at 405-06.
The only conceivable basis for admitting Pham and Hankins's statements would be N.J.R.E. 803(c)(5), covering past recollections recorded:
A statement concerning a matter about which the witness is unable to testify fully and accurately because of insufficient present recollection if the statement is contained in a writing or other record which (A) was made at a time when the fact recorded
actually occurred or was fresh in the memory of the witness, and (B) was made by the witness or under the witness' direction or by some other person for the purpose of recording the statement at the time it was made, and (C) the statement concerns a matter of which the witness had knowledge when it was made, unless the circumstances indicate the statement is not trustworthy; provided that when the witness does not remember part or all of the contents of a writing, the portion the witness does not remember may be read into evidence but shall not be introduced as an exhibit over objection.The proponent of hearsay, in this case NJM, bears the burden to establish its admissibility. State v. Stubbs, 433 N.J. Super. 273, 286 (App. Div. 2013), certif. denied, 217 N.J. 293 (2014).
The Supreme Court reviewed the prerequisites for admission of statements as past recollection recorded in State v. Gore, 205 N.J. 363, 376-77 (2011).
The threshold requirement is that the witness must be shown to have an "impaired memory." Once that is demonstrated and the court is satisfied that the witness is unable to testify fully and accurately about the subject of the written statement, then the hearsay exception permitted in Rule 803(c)(5) becomes applicable. That said, the witness does not have to be "utterly unable to remember anything in the document" in order to permit the witness to read, or to allow into evidence, that portion which the witness cannot recall.
[Id. at 376 (internal citations omitted).]
With respect to this initial hurdle, NJM cannot succeed as to Pham's statement. Pham was not deposed. There is no evidence that she would have been "unable to testify fully and accurately" about the license plate. Generally, where a past event is observed by one person, and recorded by the other, both persons must testify. See Weinstein's Federal Evidence § 803.07(d) (2016) (stating that "when a person perceives an event and reports it to another who records it . . . [b]oth participants must ordinarily testify . . . ."); see also United States v. Booz, 451 F.2d 719, 725 (3d Cir. 1971) (stating license plate report may be admitted if both observer and recorder testified to their roles); Swart v. United States, 394 F.2d 5, 6 (9th Cir. 1968) (admitting testimony of get-away car's license plate number, stating "when the observer testifies to the accuracy of his report to the recorder and the latter testifies to the accuracy of the recording," the written report may be admitted as recorded past recollection); People v. Velarde, 586 P.2d 6, 8 (Colo. 1978) (admitting license plate number report after observer and reporter testified about their respective roles).
Hankins testified that she had no present recollection of the license plate number. But, as we discuss below, her out-of- court statement to Cupani must satisfy three additional prerequisites.
Also, the proponent of the evidence must establish that the statement "was made at a time when the fact recorded actually occurred or was fresh in the memory of the witness." The statement must have been made "by the witness or under the witness' direction." Section (C) of N.J.R.E. 803(c)(5) also requires that the statement concern "a matter of which the witness had knowledge when it was made."
[Gore, supra, 207 N.J. at 377 (internal citations omitted).]
Neither Cupani nor Hankins satisfied the first element. Hankins did not recall noting the license plate at all, let alone confirm that she provided the information when it was fresh in her memory. Although Cupani confirmed that he prepared the police report, he did not say when he prepared it in reference to the collision. He may have prepared it at the scene, or sometime later.
As for the second element, Cupani could not recall speaking to Hankins or Pham. Nor did he assert that, based on his general practice, if two witnesses were listed in his report, then he must have spoken to them, as opposed to a possible third party who gave Cupani the witnesses' names and license plate number.
The third element requires proof that the witness actually had knowledge of the matter when the statement was made. See Konop, supra, 425 N.J. Super. at 405-06 (rejecting admission of embedded hearsay in hospital record as past recollection recorded). NJM had to establish that Hankins knew the license plate number when she told it to Cupani, even if she could not recall it thereafter. However, Hankins testified that she did not recall taking note of a license plate or providing it to a police officer. Furthermore, she said she did not see the accident; and that the vehicle between her car and Tran's was not involved in the accident.
N.J.R.E. 803(c)(5)(C) does not require a proponent to establish that the writing accurately or correctly recorded the witness's recollection. Cf. Fed. R. Evid. 803(c)(5)(C) (requiring that recording "accurately reflects the witness's knowledge"); former Evid. R. 63(a)(b)(iii) (requiring the witness to testify "that the statement he made was a true statement of such fact"). "These conditions cannot be realistically satisfied since the witness must also testify that he has insufficient recollection of the matter." 1991 Supreme Court Committee Comment to N.J.R.E. 803(c)(5).
Even if a proponent satisfies all three elements, a court may bar admission of a recorded recollection if "the circumstances indicate that the statement is not trustworthy." N.J.R.E. 803(c)(5). Notwithstanding the significant questions affecting the trustworthiness of the hearsay license plate reports, we need not reach the trustworthiness issue, given the failure to satisfy the other requirements of the rule. --------
Without admissible evidence of the license plate number that Hankins or Pham allegedly observed, NJM is unable to tie Gregin's vehicle to the collision that caused Tran's alleged injuries. Gregin's admission that she sometimes drove to Atlantic City during the winter of 2009 falls far short of placing her vehicle at the scene. Therefore, summary judgment was appropriate.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION