Hirsch v. General Motors Corp.

Decision Date04 May 1993
Citation266 N.J.Super. 222,628 A.2d 1108
PartiesSonia HIRSCH and Irving Hirsch, Plaintiffs, v. GENERAL MOTORS CORPORATION, Cadillac Motor Car Division, Wells Cadillac, John Doe 1-20 (names fictitious, true names representing principals, partners and officers of Wells Cadillac, Inc.), Warnock Cadillac-Oldsmobile-Buick-Pontiac, Inc., Defendants. Essex County
CourtNew Jersey Superior Court

Vincent A. Vitiello, II, Rahway, for plaintiffs Hirsch (Vitiello, Seltzer, Terkowitz & Vitiello, attorneys; Vincent A. Vitiello, II, on the brief).

William R. Bumgardner and Charles T. McCook, Jr., Springfield, for defendant Warnock Cadillac Oldsmobile, Inc. (Bumgardner, Hardin & Ellis, attorneys; Charles T. McCook, Jr., on the brief).

Thomas V. Convery, Woodbridge, for defendant General Motors Corp. (Morley, Cramer, Tansey, Haggerty & Fanning, attorneys).


I. Introduction

This is a case of first impression. State Farm Mutual Automobile Insurance Company (State Farm) brought this subrogation action on behalf of plaintiffs Sonia Hirsch and Irving Hirsch (plaintiffs). The causes of action alleged in plaintiffs' complaint arose from a fire that severely damaged plaintiffs' vehicle. Prior to filing the complaint, State Farm had experts inspect plaintiffs' vehicle and prepare a report. The vehicle was subsequently discarded.

Defendant Warnock Cadillac Oldsmobile, Inc. (Warnock) moves to dismiss plaintiffs' complaint for spoliation of evidence. Defendant General Motors Corporation (General Motors) joins Warnock in its application, requesting that this court enter an order dismissing plaintiffs' complaint with prejudice against defendants General Motors and Warnock.

Plaintiffs object to defendants' motion. First, plaintiffs contend that New Jersey has not adopted California's independent spoliation tort approach. Second, plaintiffs contend that the loss of evidence was, at most, negligent. And under New Jersey law, civil litigants who negligently lose evidence are not barred from proceeding with their cases. Rather, upon completed discovery, and after the other party establishes substantial prejudice at an evidentiary hearing, the appropriate relief would be preclusion of the evidence. Third, plaintiffs contend that the out-of-state authorities cited in defendant Warnock's brief remedied spoliation by precluding evidence. Fourth, plaintiffs contend that spoliation of evidence is an affirmative defense, which was not specifically pleaded in defendants' respective answers. Fifth, plaintiffs contend that plaintiff Irving Hirsch notified defendants Warnock and General Motors of the fire involving their vehicle several weeks after its occurrence, and again by plaintiffs' insurer State Farm on April 3, 1991, and thus, defendants failed to timely request an inspection. Finally, plaintiffs contend that dismissal of the complaint, absent a court order to preserve the evidence, would be improper.

In reply, Warnock states that the evidence in this case was intentionally destroyed; the requisite intent level to establish intentional spoliation of evidence need not rise to a level of egregious conduct. In addition, General Motors states that, in light of the discovery already conducted, it is not premature to determine dismissal of plaintiffs' complaint (or preclusion of evidence).

II. Facts

Plaintiff Irving Hirsch purchased a 1988 Cadillac Sedan DeVille ("Cadillac") from Wells Cadillac on or about July 23, 1988. The Wells Cadillac dealership was later purchased by defendant Warnock. Plaintiff Sonia Hirsch, plaintiff Irving Hirsch's wife, was the principal driver of the Cadillac, which was driven locally around West Orange, New Jersey, except for one trip to Atlantic City, New Jersey.

On July 9, 1990, Irving Hirsch brought the Cadillac to Warnock for air conditioning repair. The Cadillac's odometer reading was 14,899 miles. Warnock replaced an air conditioning hose, and upon authorization, Warnock also replaced the front brakes and cleaned and adjusted the rear brakes. John Pawlyk, the mechanic who performed the repairs, stated that the brake reservoir and lines were also inspected. (Depositions of John Pawlyk and William Hellman, p. 36, lines 15-23). The Cadillac had no other malfunctions or problems; the only prior maintenance services performed on the Cadillac were routine oil changes.

On August 31, 1990, the Cadillac was parked in the driveway of plaintiffs' home in West Orange, New Jersey. Plaintiff Irving Hirsch noticed flames emanating from the Cadillac's engine compartment. The Fire Department was summoned and arrived at about 2:20 p.m.

The August 31, 1990 West Orange Fire Department Fire Incident Report stated the fire originated in the engine compartment, the form of heat ignition and ignition factor were undetermined and the type of material ignited was wire insulation and cable insulation.

The August 31, 1990 West Orange Fire Department Fire Incident Report Supplement stated the fire engulfing the engine compartment and the underside of the dashboard was extinguished and there were no signs of fluid leaks.

On the same day, shortly after the incident, plaintiffs reported the fire to their automobile insurer, State Farm.

On September 5, 1990, a State Farm appraiser declared the Cadillac a "total loss." The Cadillac's odometer reading was approximately 16,000 miles. Thereafter, on September 6, 1990, Tech-Cor, Inc. (Tech-Cor), a salvage company, in Carteret, New Jersey, took possession of the Cadillac.

On September 21, 1990, State Farm entered into an acknowledged agreement with Sonia Hirsch for $17,267.13, in settlement of the insurance claim.

On October 10, 1990, Peter Vallas Associates, Inc. (Vallas), inspected the Cadillac at State Farm's request. The October 12, 1990 Vallas Report concluded that a ruptured brake fluid line, emitting atomized brake fluid onto the exhaust manifold, caused the fire in the Cadillac's engine compartment. The Vallas inspectors eliminated other possible competing causes such as malfunctions of the oil, fuel and electrical systems. The Vallas inspectors found low fire patterns at the base of the Cadillac's firewall where the brake fluid lines were located and "severe discoloration [of] and direct flame impingement" on the left brake line.

On November 1, 1990, Tech-Cor received title to the Cadillac. Tech-Cor sold the Cadillac to King George Auto Sales in Rahway, New Jersey, on December 10, 1990. This is the Cadillac's last known whereabouts.

In the meantime, on or about September 17, 1990, plaintiff Irving Hirsch contacted General Motors Cadillac Motor Division and reported the fire incident. Subsequently, William Hellman, Warnock's parts and service director, referred plaintiff Irving Hirsch to Cadillac District Service Manager Larry Swift. Mr. Swift and plaintiff Irving Hirsch met at Warnock's premises in South Orange, New Jersey, on or about October 15, 1990, and discussed the fire incident.

There was no further contact between plaintiffs and defendants until April 1991. Two identical State Farm letters, dated April 3, 1991, addressed to Warnock and to General Motors, stated that "[o]ur investigation indicates that you are responsible for this damage, and we are looking to you for reimbursement."

A letter from the Cadillac Motor Car Division of General Motors to State Farm, dated April 11, 1991, acknowledged receipt of the April 3, 1991 letter and informed State Farm that General Motors' insurance carrier was Royal Globe Insurance Company, and requested that further correspondence be directed to them.

State Farm then addressed a letter, dated May 1, 1991, to Royal Globe Insurance Company, stating that "[w]e would appreciate hearing from you at your earliest opportunity in order to avoid placing this matter in the hands of our attorneys."

Crawford & Company addressed a letter to State Farm, dated June 21, 1991, stating that they were an independent adjusting firm assigned to handle the Hirsch claim on behalf of Warnock; and that they were denying State Farm's subrogation claim because the brake pads were replaced two months before the fire, there was no proof that Warnock's negligence caused the fire, and "anything could have severed the [Cadillac's] brake line...."

III. Procedural History and Discovery

Plaintiffs filed suit on October 25, 1991. Their complaint states claims for breach of a sales contract and breach of a service contract; careless, reckless and negligent design, manufacture, service, etc. of a 1988 Cadillac; strict products liability for placing a defective Cadillac into the stream of commerce; and vicarious liability of General Motors for the breach of contract, negligence and strict products liability of defendants Cadillac Motor Car Division, Wells Cadillac, and John Does 1-20.

On December 26, 1991, the office of Richard A. Merkt, Esquire, filed an answer on behalf of Warnock. On June 3, 1992, the firm of Bumgardner, Hardin & Ellis filed a Substitution of Attorney on behalf of Warnock, and filed an amended answer on July 8, 1992.

After a January 2, 1992 Stipulation Extending Time For Answer, General Motors filed an answer on January 9, 1992. Although Warnock's answer and amended answer as well as General Motors' answer state various separate defenses, spoliation of evidence was not raised until this motion.

On January 9, 1992, General Motors inquired as to the Cadillac's location. Plaintiffs (State Farm as subrogee) furnished that information via an April 13, 1992 reply letter, stating that "the vehicle in question was sold to King George Auto Sales ... on or about December 10, 1990."

On May 18, 1992, plaintiffs duly served General Motors with answers to interrogatories.

On June 9, 1992, Warnock made a Demand For Production of Documents on plaintiffs. Plaintiffs' June 12, 1992 reply letter provided information as to the Cadillac's location.

On June 17, 1992, plaintiffs' oral...

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