TARA NOVEMBRE VS. NEW JERSEY NETS (L-0568-12, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3313-15T3
TARA NOVEMBRE and ANIELLO
NOVEMBRE,
Plaintiffs-Appellants/
Cross-Respondents,
v.
NEW JERSEY NETS, NEW JERSEY
SPORTS EXPOSITION AUTHORITY,
JAMES LOCKWOOD, ESQUIRE, and
CHUBB SERVICES CORPORATION, 1
Defendants-Respondents/
Cross-Appellants.
__________________________________
Argued October 3, 2018 – Decided July 18, 2019
Before Judges Koblitz, Ostrer and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-0568-12.
1
We have corrected the caption of the trial court's order to reflect the addition
of defendant Chubb Services Corporation in the amended complaint.
Angela M. Roper argued the cause for appellants/cross-
respondents (Roper & Thyne, LLC, attorneys; Kenneth
S. Thyne, on the briefs).
William J. Riina argued the cause for respondent/cross-
appellant New Jersey Basketball, LLC 2 (Wilson Elser
Moskowitz Edelman & Dicker LLP, attorneys; William
J. Riina, of counsel and on the briefs; Robert C. Neff,
on the briefs).
Kevin R. Reich argued the cause for respondents/cross-
appellants New Jersey Sports and Exposition Authority
and James Lockwood (Paul J. Soderman and Gibbons
PC, attorneys; Frederick William Alworth and Kevin R.
Reich, on the briefs).
Patrick A. Robinson argued the cause for respondent/
cross-appellant Chubb Services Corporation (Robinson
Burns Diantonio, attorneys; Patrick A. Robinson, of
counsel and on the briefs; Anthony Vincent Di Antonio,
Colin R. Gibson, and Lucas W. Morgan, on the briefs).
PER CURIAM
Plaintiffs Tara and Aniello Novembre appeal from the trial court's March
3, 2016 order granting summary judgment and dismissing their fraudulent
concealment claim against defendants: The New Jersey Sports and Exposition
Authority (the Authority), then-Authority-attorney James Lockwood, New
Jersey Basketball LLC (the Nets), and Chubb Services Corporation (Chubb).
Plaintiffs also appeal from trial court orders in June and July 2015 denying their
2
New Jersey Basketball, LLC, improperly pleaded as New Jersey Nets.
A-3313-15T3
2
motions for leave to file a second amended complaint and for reconsideration. 3
Defendants filed protective cross-appeals.
Reviewing Judge James J. DeLuca's order de novo, applying the same
summary judgment standard as he did, see Henry v. N.J. Dep't of Human Servs.,
204 N.J. 320, 330 (2010) (describing standard of review), we conclude the
evidence does not present "sufficient disagreement to require submission to a
jury" and "it is so one-sided that [defendants] must prevail as a matter of law."
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 533 (1995) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). Also, deferring
to Judge DeLuca's exercise of discretion, see Franklin Med. Assocs. v. Newark
Pub. Sch., 362 N.J. Super. 494, 506 (App. Div. 2003), we affirm the denial of
the motion to amend and for reconsideration. We dismiss the cross-appeals as
moot.
Plaintiffs filed their fraudulent concealment action the same day we
affirmed the no cause judgment in their personal injury action against the
Authority and Snyder High School (Snyder High). See Novembre v. Snyder
3
Although plaintiffs identified other orders in their notice of appeal, they do
not address them in their brief on the merits; we therefore consider them waived.
See Liebling v. Garden State Indem., 337 N.J. Super. 447, 465-66 (App. Div.
2001) (stating that "an issue not briefed . . . is deemed waived").
A-3313-15T3
3
High School, No. A-3426-09 (App. Div. January 17, 2012). We presume the
reader's familiarity with our prior opinion. In sum, plaintiffs alleged in their
prior action that, while attending a New Jersey Nets game at the Meadowlands,
Tara4 was injured when a member of a Snyder High student group fell onto her
from the next row up. Plaintiffs alleged that the Authority and Snyder High
negligently supervised the Snyder High students, who were rowdy and ill-
behaved. The trial court excluded the hearsay statement "Why did you push
her?" from an unidentified declarant, which suggested a person pushed the
spectator onto Tara. Plaintiffs lacked other proof of what propelled the spectator
– whether another person purposely pushed her, someone accidentally jostled
her, or she simply lost her footing on her own.
In the present action, plaintiffs alleged that defendants concealed for
roughly seven months the name of the high school whose students were seated
behind them. In April 2005, in response to her request for the identity of the
student group seated behind Tara, the Authority – Lockwood in particular –
referred plaintiffs' attorney to the Nets. In turn, the Nets referred the attorney
to its insurer, Chubb. A Chubb claims examiner assured the attorney he would
4
As plaintiffs share a surname, we refer to Tara Novembre by her first name
for convenience and with no disrespect intended.
A-3313-15T3
4
notify her of the information when he received it. In early May 2005, the claims
examiner received the information, along with a number of other records. He
put the documents in a file and intended to review them later, but he never did.
He did not inform the plaintiffs' attorney either. The claims examiner was then
transferred to a different position shortly after receiving the files. When
plaintiffs' attorney followed up in November 2005, she was referred to the
claims examiner's successor, who looked through the file and promptly
disclosed that a Snyder High student group was seated behind plaintiffs.
The following month, plaintiffs sought permission to serve a late Tort
Claims Act notice upon Snyder High, which the court granted in early 2006.
However, plaintiffs did not file suit until January 2007, nor did they immediately
seek discovery from Snyder High. In 2009, Snyder High disclosed that it could
not locate the field trip file that would have contained permission slips
identifying the students who attended the game.
Plaintiffs allege that the delay from April to November 2005 in disclosing
Snyder High prevented them from discovering the identity of the student who
landed on Tara, and how she was propelled into the next row. Plaintiffs allege
that such evidence would have established proximate causation in her prior
action.
A-3313-15T3
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After a lengthy period of discovery, significant motion practice, and a
remand following an interlocutory appeal, Judge DeLuca granted defendants
summary judgment, concluding, in a thorough written opinion, that plaintiffs
would be unable to prove by clear and convincing evidence, see Fox v.
Mercedes-Benz Credit Corp., 281 N.J. Super. 476, 484 (App. Div. 1995)
(establishing standard of proof for fraud claims), all five elements of a
fraudulent concealment claim:
(1) That defendant in the fraudulent concealment action
had a legal obligation to disclose evidence in
connection with an existing or pending litigation;
(2) That the evidence was material to the litigation;
(3) That plaintiff could not reasonably have obtained
access to the evidence from another source;
(4) That defendant intentionally withheld, altered or
destroyed the evidence with purpose to disrupt the
litigation;
(5) That plaintiff was damaged in the underlying action
by having to rely on an evidential record that did not
contain the evidence defendant concealed.
[Rosenblit v. Zimmerman, 166 N.J. 391, 406-07
(2001).]
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In the trial court's view, plaintiffs satisfied some elements against some
defendants, but they did not, as required, satisfy all five elements against any
defendant.
On appeal, plaintiffs contend they satisfied all five elements. We
disagree, and affirm summary judgment.
Although we do not address the Rosenblit elements in numerical order,
we begin with the first, pertaining to duty. Plaintiffs provide no precedential
authority for the proposition that likely defendants in a prospective lawsuit –
such as the Authority or the Nets or their agent – have a duty to disclose evidence
to a prospective plaintiff, to assist her in developing her claim against them,
before she files suit. Whether such a duty existed is a legal question for the
court, determined in light of public policy considerations, based in part on the
relationship of the parties. See Hopkins v. Fox & Lazo Realtors, 132 N.J. 426,
439 (1993) (reviewing factors governing whether to recognize a duty of care).
The parties' likely adversarial relationship tends not to support imposition
of a duty. Furthermore, the design of our discovery rules reflects the policy that
post-filing discovery is broad, but pre-suit discovery is circumscribed. In
particular, a party may not utilize Rule 4:11-1, allowing limited pre-suit
discovery, solely to identify potentially liable defendants. See In re Petition of
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Hall, 147 N.J. 379, 391 (1997) (holding that the Rule "was not intended to
authorize pre-suit discovery for the sole purpose of assisting a prospective
plaintiff in acquiring facts necessary to frame a complaint"). It would be
inconsistent with the "holistic and comprehensive system" of discovery set forth
in our Rules, see Johnson v. Grayce Tighe, Inc., 365 N.J. Super. 237, 240 (App.
Div. 2003), to impose on the Nets, the Authority, or its attorney, a pre-suit duty
outside the Rules to disclose as plaintiffs contend.
Chubb challenges Judge DeLuca's finding that the insurer voluntarily
assumed a duty to disclose the identity of the high school whose students were
seated behind plaintiffs. 5 However, we need not address this point, as we are
persuaded that plaintiffs could not prove, by clear and convincing evidence, that
the Nets's insurer intentionally withheld the identity of the high school group –
the fourth Rosenblit element. We recognize that matters of intention are
5
Chubb does not address plaintiffs' argument that its duty to disclose arose out
of its obligations under the Unfair Claims Settlement Practices Act (the Act) and
implementing regulations, in particular, N.J.S.A. 17:29B-4(9)(b) and N.J.A.C.
11:2-17.6, which makes it an unfair claims settlement practice to fail to promptly
respond to communications regarding claims. However, because the Act does
not create a private right of action, Pierzga v. Ohio Cas. Grp. of Ins. Cos., 208
N.J. Super. 40, 47 (App. Div. 1986), it is questionable whether it would be
appropriate to derive a duty from the Act, actionable in a private fraudulent
concealment claim.
A-3313-15T3
8
generally not susceptible to summary judgment. See Auto Lenders Acceptance
Corp. v. Gentilini Ford, Inc., 181 N.J. 245, 271-72 (2004). However, where
there is no genuine issue of material fact, particularly in view of the standard of
proof and the one-sidedness of the evidence, summary judgment is appropriate.
See Fielder v. Stonack, 141 N.J. 101, 127 (1995) (stating a state of mind question
"does not preclude summary judgment, but requires the most careful analysis
before granting it"); Allis-Chalmers Corp. Prod. Liab. Trust v. Liberty Mut. Ins.
Co., 305 N.J. Super. 550, 556-57 (App. Div. 1997) (affirming summary
judgment dismissal of fraudulent concealment action, concluding that evidence
did not support a finding of intentional destruction).
Here, the evidence indicates that the claims examiner's failure to impart
information to plaintiffs' attorney was an unintentional oversight. He put the
information in a file, to review later, but he never did. Neither the claims
examiner nor Chubb had any self-interest in withholding information about a
potentially liable party other than its insured, the Nets. However, the Nets were
dismissed from the prior action because it had no control over fan behavior. No
reasonable jury would find, particularly by clear and convincing evidence, that
Chubb intentionally withheld Snyder High's identity to impede plaintiffs'
lawsuit. For the same reason, no reasonable jury would find that the Nets, even
A-3313-15T3
9
if the team had a duty to disclose, intentionally withheld the identity of the
school group.
Plaintiffs also fail to present a genuine issue of material fact that the
Authority intentionally withheld the name of the high school. Had the Authority
intended to delay or impede plaintiffs' pre-trial investigation, it would not have
referred plaintiffs' counsel to the Nets, which had access to the information and
no incentive to withhold it. The Authority would have had no reason to belie ve
that its referral to the Nets would have delayed plaintiffs' discovery of the high
school, as opposed to hastening it.
Returning to the second element, we assume for argument's sake that the
name of the high school, and the identity of the student who fell on Tara and of
the students standing nearby, were material to the litigation. Testimony from
the student who fell, and the witnesses who observed her, could have affected
the outcome of the litigation. See Liberty Lobby, 477 U.S. at 248 (describing
"genuine issues as to material facts" as "disputes over facts that might affect the
outcome of the suit under the governing law"); Mellet v. Aquasid, LLC, 452 N.J.
Super. 23, 27 (App. Div. 2017) (stating "[a] fact is material if it is substantial in
nature"). However, it is pure speculation that the testimony of such witnesses
would have favored plaintiffs. The girl who fell on Tara may have testified that
A-3313-15T3
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she fell accidentally. If called as a trial witness, the person who asked, "Why
did you push her?" may have testified that he just assumed the girl was pushed;
or he may have testified that he posed the question in jest, to put another student
on the spot. In other words, it is not evident that the testimony sought by
plaintiffs, even if material, would have benefited their case.
We turn to the third Rosenblit element. Focusing on the name of the high
school, plaintiffs contend they could not reasonably have obtained access to the
evidence from a source other than defendants. However, the defendants must
be treated individually. With respect to their claim against the Authority,
plaintiffs could and did obtain access to the high school's name from a source
other than the Authority; plaintiffs obtained the information from the insurer of
the Nets, which gave the tickets to Snyder High in the first place.
Furthermore, the crux of plaintiffs' complaint is that the delayed
disclosure of Snyder High prevented them from discovering the student who fell
and the students who witnessed the fall. Although it obviously would have been
easier to discover the names by obtaining the field trip file – if it was then extant
and accessible – plaintiffs could have demanded that the high school leadership
canvass all students, to ask them whether they attended the game and whether
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they remembered anyone else who did.6 That may have enabled plaintiffs to
reconstruct a list of students who attended the game. To establish that the
evidence could not be obtained from another source, plaintiffs were obliged to
pursue reasonable alternative means of discovery. See Estate of Cordero v.
Christ Hosp., 403 N.J. Super. 306, 320-21 (App. Div. 2008) (affirming summary
judgment dismissal of claim that hospital fraudulently concealed a "code sheet,"
where plaintiffs did not depose a member of the code team to secure the desired
evidence).
Finally, as for the fifth element, plaintiffs failed to present sufficient
evidence that they were damaged in the prior personal injury suit "by having to
rely on an evidential record that did not contain the evidence defendant
concealed." Rosenblit, 166 N.J. at 407. As noted, long before plaintiffs even
filed their initial personal injury complaint, they had the information they claim
was concealed – the name of the high school. They claim they were ultimately
damaged at trial because they did not have the names of the particular Snyder
6
We recognize that by the time plaintiffs identified Snyder High, one class of
students had graduated. But, students still attending Snyder High would likely
recall some of their upper-classmates who were at the Nets game.
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High student who fell and those who saw her fall, including the person who
allegedly said, "Why did you push her?"
Plaintiffs contend that by delaying disclosure of Snyder High, defendants
impeded plaintiffs from identifying the students. Thus, in order for plaintiffs to
prevail on the fifth Rosenblit element, the element must be revised to provide:
"plaintiff was damaged in the underlying action by having to rely on an
evidential record that did not contain evidence that plaintiff would have
discovered but for the evidence defendant concealed."
Even applying this revised element, plaintiffs have not established that the
delayed disclosure of the high school's name prevented them from identifying
the student who fell and the students who witnessed the fall. It is mere
speculation that plaintiffs could have discovered the field trip file had one of the
defendants disclosed Snyder High in the Spring of 2005. The field trip file was
lost or destroyed, but there is no clear and convincing evidence showing when
that happened. Conceivably, the file was misplaced immediately after the game,
in which case, the delay in disclosing the high school was inconsequential.
Alternatively, the file may have been available until at least the end of 2006.
According to Ellen Ruane, who was Snyder High's principal until December 31,
2006, field trip files remained in her office, and were not destroyed, throughout
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her tenure. Thus, plaintiffs may have had almost a year to discover the file had
it commenced the personal injury action after it received leave to file a late Tort
Claims Act notice. We recognize that the high school's attorney in the prior
action gave conflicting statements that the field trip file would have been kept
only until the end of the 2005 school year. However, that attorney lacked
personal knowledge of the contents of the high school's files.
Plaintiffs also misunderstand the nature of damages recoverable in their
fraudulent concealment action. They apparently seek to argue to a jury that
defendants' alleged concealment caused Tara "to lose her personal injury action"
and, presumably, plaintiffs seek recovery of the personal injury damages she
sought in the prior act. However, based on their discovery that the field trip file
was lost or missing, plaintiffs timely requested and were granted an adverse
inference charge. The Supreme Court has called an adverse inference charge a
"complete substantive remedy" for the impact of the alleged concealment on the
substantive claim.
In the context of a claim of spoliation by a defendant,
the use of an adverse inference should create a complete
substantive remedy because the jury will decide, as part
of the case in chief, whether the missing evidence
existed and was destroyed by defendant. If so, the jury
will decide the substantive issue as if that evidence
assisted the plaintiff.
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[Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 120
(2008).]
If the adverse inference charge is delivered, then the plaintiff in the fraudulent
concealment action may seek "additional compensatory damages limited to the
further costs of proceeding with the spoliated evidence, or costs incurred in an
effort to replace that evidence, together with, if appropriate a punitive award."
Ibid. Plaintiffs have presented no argument for such compensatory damages.
In sum, we are convinced that summary judgment was properly granted,
as plaintiffs have failed to present sufficient evidence to create a jury question
as to all five Rosenblit elements regarding any defendant.
We shall not comment at length regarding plaintiffs' appeal from the trial
court's order denying their motion for leave to file a second amended complaint.
As noted above, our review is deferential. Franklin Med Assocs., 362 N.J.
Super. at 506. We discern no clear abuse of discretion in Judge DeLuca's order,
and affirm substantially for the reasons set forth in his cogent written opinion
denying the motion for leave to amend.
Given our disposition of plaintiffs' appeal, the protective cross-appeals are
dismissed as moot. See Boardwalk Regency Corp. v. Square Brighton Corp.,
Inc., 288 N.J. Super. 494, 504 (App. Div. 1996) ("The summary judgments
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entered . . . in the consolidated actions under appeal are affirmed. Therefore,
the cross-appeal is moot.").
Affirmed.
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