Garcia v. Kozlov, Seaton, Romanini

• Decision Date: 13 April 2004
• Citation: 845 A.2d 602,179 N.J. 343
• Parties: Karen GARCIA, Plaintiff-Appellant, v. KOZLOV, SEATON, ROMANINI & BROOKS, P.C., and Elizabeth L. Sylvester, Esq., Defendants-Respondents, and Hersh Kozlov, Esq., Philip B. Seaton, Esq., Dante J. Romanini, Esq., Gilbert L. Brooks, Esq., and Frank A. DiGiacomo, Esq., Defendants.
• Court: New Jersey Supreme Court

845 A.2d 602

179 N.J. 343

Karen GARCIA, Plaintiff-Appellant, v. KOZLOV, SEATON, ROMANINI & BROOKS, P.C., and Elizabeth L. Sylvester, Esq., Defendants-Respondents, and Hersh Kozlov, Esq., Philip B. Seaton, Esq., Dante J. Romanini, Esq., Gilbert L. Brooks, Esq., and Frank A. DiGiacomo, Esq., Defendants.

Supreme Court of New Jersey.

Argued February 2, 2004.

Decided April 13, 2004.

Martin K. Indik, Princeton, argued the cause for appellant (Indik & McNamara, attorneys; Mr. Indik and Steven K. Greene, on the brief).

Gilbert L. Brooks, Cherry Hill, argued the cause for respondents (Wolf, Block, Schorr and Solis-Cohen, attorneys). Justice LONG delivered the opinion of the Court.

The issue before us arises out of a legal malpractice case. Plaintiff sued her former lawyers for failing to join an arguably integral party in a personal injury lawsuit. In the subsequent legal malpractice action, plaintiff claimed that she was forced to settle the personal injury case with the named defendants for less than full value as a result of the absence of the negligently omitted party. Because defendant raised the settlement first as a bar and then as a defense in the malpractice case, plaintiff sought to present her case, in part, through expert testimony. The trial court acceded to that request in reliance on Lieberman v. Employers Insurance of Wausau, 84 N.J. 325, 419 A.2d 417 (1980), wherein we signaled that the traditional "suit within a suit" format is not the only way to proceed in a legal malpractice action. Plaintiff obtained a verdict and defendant appealed.

The Appellate Division reversed, advocating strict adherence to the "suit within a suit" format in the absence of the precise factors considered in Lieberman. The Appellate Division misreads that case. In Lieberman, we specifically recognized that a legal malpractice case may proceed in any number of ways depending on the issues. Included among those options are a "suit within a suit," any "reasonable modification thereof," and a suit based on "expert testimony." Lieberman, supra, 84 N.J. at 343-44, 419 A.2d 417. The ruling in Lieberman did not establish a hierarchy among those approaches nor did it suggest that there is a presumption in favor of the "suit within a suit" scheme. We hold today that the proper approach in each case will depend upon the facts, the legal theories, the impediments to one or more modes of trial, and, where two or more approaches are legitimate, to plaintiff's preference. Courts are not to become involved in determining how a legal malpractice case is tried unless the parties disagree, in which case the final determination of the court is a discretionary judgment that is entitled to deference.

I

Plaintiff, Karen Garcia, was injured in a multi-vehicle automobile accident on Route 130 in East Windsor, New Jersey on a rainy night in April 1992. The accident began with a collision between vehicles driven by Carol Ertel and Emily Forman. That accident cut power to the Forman car leaving it disabled and unlit in the roadway. Immediately following the crash, Ertel temporarily left the scene without taking steps to warn oncoming traffic about the Forman vehicle. Within minutes, another vehicle driven by Karen Marut struck the Forman vehicle. A chain-reaction crash followed in which a vehicle driven by Charlotte Ignall struck plaintiff's vehicle, which struck Marut's vehicle.

On November 1, 1993, the law firm of Kozlov, Seaton, Romanini & Brooks, filed a complaint prepared by its associate, Elizabeth Sylvester, Esq., on behalf of plaintiff against Forman, Marut, and Ignall for negligence. The complaint inexplicably omitted Ertel. The law firm then discovered a conflict of interest with an insurance company implicated in the case and referred the matter to Michael Gentlesk, Esq., who was then retained by plaintiff. Gentlesk moved to amend the complaint to include a claim against Ertel. After the court granted the motion, Ertel successfully moved for summary judgment based on the applicable statute of limitations. Plaintiff later settled her claims against the other drivers for $87,000. Thereafter, she filed a complaint for malpractice against the Kozlov firm and Sylvester (collectively, defendant) alleging that defendant's negligence in failing to name Ertel caused her to settle her case for less than its true value.

The trial of plaintiff's legal malpractice claim began on July 31, 2000. After jury selection, the trial court was presented with motions in limine from both parties. Plaintiff argued for the right to proffer expert testimony regarding the settlement in addition to direct evidence regarding her case. Defendant countered, among other things, that the matter should instead be tried solely as a "suit within a suit," that plaintiff should be precluded from presenting evidence indicating that she had not come to a stop prior to the first impact,¹ that Gentlesk should be barred from testifying, and that the settlement in the underlying case should operate as a bar to the legal malpractice action.

The court granted plaintiff's motion and denied that of defendant stating:

I think that because of the shifting positions by the plaintiff it will be necessary for the plaintiff [ ] to utilize and the defendants to utilize or may utilize if they wish expert testimony in presenting their case. This does not relieve the plaintiff of their obligation to prove the underlying case, but the case can be presented by the use of expert testimony.

The next issue concerning the net opinion of Mr. Gentlesk and his evaluation of the case at the time of settlement that would be admissible for a limited purpose, that is to show the reasonableness of the settlement that he entered into. The proof of the actual value of the case must come from the witness herself together with any expert testimony [that] [s]he finds.

As to point 3, the barring of the plaintiff from presenting evidence—any evidence indicating she failed to stop prior to the first impact, that is a misapplication of the doctrine. She is estopped from changing her testimony. Her legal position in this case may, of course, change.

The plaintiff, of course, will be permitted to testify to the extent of her present medical condition. I take it that there's no issue as to the time limits of or to the notice of those reports offered by her experts that you've received them within time.

....

[Mr. Gentlesk's] testimony, of course, is admissible. It goes to the reasons for the strategy that he adopted and his evaluation of the case and the way it was presented. That certainly is relevant and that is admissible.

....

And, of course, the settlement of the prior case doesn't bar her from proceeding in this case.

Plaintiff's case began with evidence of the underlying accident. In deposition testimony, Emily Forman recalled her collision with Ertel:

I was driving northbound on route 130, it was after sunset. I don't remember the exact time, maybe 8:00. It was dark out and a little bit rainy so the road was slick. I was in the left hand northbound lane driving about 45 to 50 miles per hour and a car pulled out in front of me. It was a matter of yards. I don't know exactly—the exact distance. I slammed on the brakes but I still struck the rear of the car. Then my car was stopped in the left hand lane, so I tried to turn on the hazard lights and they wouldn't go on. So I got out of the car and stepped onto the median. There was a grassy median that divides the north and southbound lanes. The— and the passenger who was with me we agreed he would try to turn the lights on. So while he was trying to turn on the lights we didn't have any interior lights or headlights or flasher hazard lights. While he was doing that I was on the grassy median and I didn't know what to do other than to try and warn the cars that were coming. So I started to walk southbound on the median. At that point no cars were coming and I saw, let me think about how far away that was, about a quarter of a mile south of where my car was there was a traffic light. I don't know if a quarter of a mile is really a good judgment of distance, but that's my best estimation.

....

And the light, I could see the light was red and it was turning green, so I knew that a wave of traffic would be coming. So I started to run up the median waiving my arms and trying to warn the cars from hitting my car that they couldn't see. But it didn't work because a car smashed into my car and then another car and then another car, and that's very blurry. I don't remember any specific— specifics about that, what the color of the cars were, what car hit what, which way they spun. I was just sort of trying not to get hit by a flying car. I think that's about it.

In response to being asked about the number of cars in the pile-up, Forman responded: "It was a total of five. The car that I hit and then three cars that hit me, one, two, three, four, five, yes." Meanwhile, according to Forman, Ertel "pulled over to the right hand shoulder and then sometime during when all the cars had hit my car and glided and spun around she drove away."

Plaintiff testified to her own recollection of the accident. She recalled seeing something dark in the roadway in front of her. That was apparently the Marut/Forman accident scene. She was not sure whether she came to a full stop before hitting Marut, although she believed, whether stopped or not, she was close enough to Marut that a person could not walk between the two cars. When Ignall hit her, she ended up "sandwiched" between Ignall and Marut. On cross-examination, plaintiff acknowledged that she had stated on several occasions, including depositions, that she stopped short of the car in front of her before she was hit. Ignall's deposition testimony indicated that she struck plaintiff's car.

Plaintiff testified that as a result of the accident, she could not walk and was taken by ambulance to the hospital. She stated that sh...