Colucci by Colucci v. Thomas Nicol Asphalt Co.

• Decision Date: 20 June 1984
• Docket Number: E-S
• Citation: 194 N.J.Super. 510,477 A.2d 403
• Parties: Sharon COLUCCI, an infant, by her Guardian Ad Litem, Joan COLUCCI; et al. Plaintiffs, v. THOMAS NICOL ASPHALT CO., South Brunswick Asphalt Co., Henry J. King, Rob-on, and Bil-Jim Construction Co., Inc., Defendants-Respondents, James Opdyke and Leroy Opdyke, Defendants-Appellants. James OPDYKE, Leroy Opdyke and Carmela Opdyke, Plaintiffs-Appellants, v. THOMAS NICOL ASPHALT CO., South Brunswick Asphalt Co., Henry J. King, Rob-on, and Bil-Jim Construction Co., Inc., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 510

194 N.J.Super. 510

477 A.2d 403

Sharon COLUCCI, an infant, by her Guardian Ad Litem, Joan

COLUCCI; et al. Plaintiffs, v. THOMAS NICOL ASPHALT CO., South Brunswick Asphalt Co., Henry

J. King, Rob-E-Son, and Bil-Jim Construction Co.,

Inc., Defendants-Respondents,

James Opdyke and Leroy Opdyke, Defendants-Appellants.

James OPDYKE, Leroy Opdyke and Carmela Opdyke, Plaintiffs-Appellants, v. THOMAS NICOL ASPHALT CO., South Brunswick Asphalt Co., Henry

J. King, Rob-E-Son, and Bil-Jim Construction Co.,

Inc., Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Submitted May 30, 1984.

Decided June 20, 1984.

William J. Hill, Lakewood, defendants-appellants (William J. Hill, on the brief).

Britt & Riehl, Freehold, for defendants-respondents Henry J. King and ROB-E-SON (Dennis F. Wagenblast, Spring Lake, on the brief).

Before Judges KING and DREIER.

The opinion of the court was delivered by

DREIER, J.A.D.

James Opdyke has appealed in these two cases which on this court's motion have been consolidated for the purpose of this opinion. In his case as a plaintiff James Opdyke is joined by his parents in seeking affirmative relief for his injuries caused by a collision between the car he was driving (owned by his father) and a street sweeper operated by defendant King. In the companion case, his passenger, Sharon Colucci, made claims against the same defendants as well as against James and his father as the operator and owner of the vehicle in which she was riding. The Colucci matter was formerly consolidated with a third case involving the claim of another passenger, but a deconsolidation order was entered prior to trial.

These cases are unusual from a procedural standpoint. James Opdyke had retained the services of William J. Hill, Esq. to represent him on his affirmative claim, and his insurance company retained another law firm to defend him in the two actions brought by his passengers. The respective carriers for Opdyke and King negotiated a monetary settlement in the two passenger cases, leaving unresolved the issue of the apportionment of the settlement between the two drivers, which issue they agreed to try. Hill did not participate in this settlement discussion nor in the decision to proceed to trial on the unresolved issue of apportionment of liability. In fact, when he heard about the trial, he appeared in the office of the Assignment Judge at 7:45 in the morning and made an application for a stay. The Assignment Judge, in chambers, informed Hill that he would not stay the trial, although there is no record of that in-chambers application. ¹ Hill contended that he was informed by the attorney for the passenger Colucci that he was not prepared for trial on the date in question and that if forced to go to trial he would take a dismissal and reinstitute the action. It was only after leaving the judge's chambers on the day before the trial that Colucci's attorney and the two defense counsel agreed to settle the damage issues, whereupon the Colucci matter proceeded to trial on liability alone, to the surprise of Hill.

The Assignment Judge also asked Hill why he did not "take over and try the case." Hill responded that he was not so requested by the insurance company and did not request it himself because "[t]hey did not know me from Adam and they had hired a law firm ... to represent the defense.... They know nothing about me, my background or experience. I thought it would be a total waste of time, your Honor, and I still think it would have been. There is no way they would have allowed me to try the case." Parenthetically, we note that a letter from Opdyke's carrier's attorneys in opposition to the summary judgment motion noted that had there been a request plaintiff's personal counsel would have been permitted to try the case. ²

The parties and all eye witnesses testified at the trial. From James Opdyke's own testimony it appeared that he had been operating his vehicle with the cruise control engaged at approximately 50 miles per hour. He came around a curve at approximately 35 miles per hour (the speed limit) when he saw a cloud of dust. He had no time to put on his brakes or sound his horn or do anything to avoid the accident. Since the accident he was able to measure the distance from which one would have visibility of the driveway to the construction site which the sweeper was leaving and he agreed that it was approximately 250 feet. He also knew that there was heavy equipment at the site which exited the driveway at slow speeds, and therefore, was aware that he might have to slow down when he came around the curve. Apparently, the cloud of dust was caused by the failure of the co-defendants to utilize a sprinkler system to hold down the dust when the sweeper was in operation.

The issues before us are the application of res judicata or collateral estoppel and the jury instructions given in the Colucci trial.

I

Hill has noted in this appeal that he would have utilized depositions that had been taken of defendant King to show certain discrepancies in his testimony and that the motivation of the carrier's attorney was not the same as his would have been in representing Opdyke as a plaintiff. He takes issue with the concession made by the carrier's attorney in summation when he said: "We are not saying that Jimmy [Opdyke] was totally without fault, but was Jimmy totally at fault?" In urging these points the Opdykes are attempting to equate this case with Reardon v. Allen, 88 N.J.Super. 560, 213 A.2d 26 (Law Div.1965), where a judgment in a District Court property damage subrogation action was held not to preclude a separate trial on liability brought by the insured. Since Opdyke was a party to both actions, we do not have to reach the question of mutuality of estoppel discussed in Desmond v. Kramer, 96 N.J.Super. 96, 232 A.2d 470 (Cty. Ct.1967), and Continental Can Co. v. Hudson Foam Latex Prod., 129 N.J.Super. 426, 324 A.2d 60 (App.Div.1974). We will, however, apply a similar analysis since we recognize that different interests were litigated in the Colucci case from those advanced by Opdyke in his own suit. As the court stated in Continental Can Co.:

... [W]e say only that in our judgment policy consideration inherent in the doctrine of collateral estoppel forbid that its dependency rely on any one test, including the test of mutuality. Whether collateral estoppel should apply depends--as the cases cited in both Reardon and Desmond acknowledge--on many factors, all of which are considered because they contribute to the greatest good for the greatest number so long as fairness is not sacrificed on that alter. We see no reason why 'mutuality of estoppel,' sanctified only by antiquity, should dictate from a preemptive position. It must be considered, along with all the other pros and cons. But the final result must be a sum of all the integers, and not a product of zero simply because one of the many numbers multiplied together is zero. [129 N.J.Super. at 430, 324 A.2d 60]

As succinctly stated in McAndrew v. Mularchuk, 38 N.J. 156, 161, 183 A.2d 74 (1962):

... Generally the question to be decided is whether a party has had his day in court on an issue, rather than whether he has had his day in court on that issue against a particular litigant.

1 Restatement, Judgments 2d, (1980) § 27 at 250 uses the term "Issue Preclusion":

Issue Preclusion--General Rule

When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.

Section 28 governs exceptions to the general rule of issue preclusion and reads in part as follows:

Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances:

* * *

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(3) A new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts or by factors relating to the allocation of jurisdiction between them; or

* * *

* * *

(5) There is a clear and convincing need for a new determination of the issue (a) because of the potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the initial action, (b) because it was not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subsequent action, or (c) because the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action.

Exception 3 is, in effect, Reardon v....