Telma Moraes v. Didi Wesler & Simony Wesler

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5786-13T4
TELMA MORAES,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
February 23, 2015
v.
APPELLATE DIVISION
DIDI WESLER & SIMONY WESLER,
Defendants-Respondents.
_________________________________
TELMA MORAES,
Plaintiff-Appellant,
v.
WILLIAM TAYLOR and STATE FARM
INSURANCE COMPANY,
Defendants-Respondents.
__________________________________
Submitted February 3, 2015 – Decided February 23, 2015
Before Judges Fisher, Nugent, and Accurso.
On appeal from interlocutory orders of
Superior Court of New Jersey, Law Division,
Essex County, Docket No. L-8101-12.
Blume, Donnelly, Fried, Forte, Zerres, &
Molinari, P.C., attorneys for appellant
(John W. Gregorek, on the brief).
Respondents have not filed briefs.
The opinion of the court was delivered by
NUGENT, J.A.D.
On leave granted, plaintiff Telma Moraes appeals from the
Law Division orders that denied her motion to consolidate her
two personal injury actions and her motion for reconsideration,
both unopposed. The trial court denied plaintiff's
consolidation motion on a record that disclosed no significant
or complex liability issue in either action, overlooked that
trying the actions separately could result in inconsistent
verdicts, and provided no appropriate explanation for its
decision. For those reasons, we conclude the court misapplied
its discretion by denying the motion to consolidate the two
actions. Accordingly, we reverse and remand to the trial court
to consolidate the cases for discovery and trial.
Plaintiff was injured in a November 11, 2011 accident when
an oncoming car crossed the road's center line into plaintiff's
lane of travel and struck the car plaintiff was driving; facts
the defendant driver admitted in her interrogatory answers.
According to plaintiff's medical providers, the injuries
plaintiff sustained in the accident included bulging discs and a
herniated disc in her cervical spine, a bulging disc in her
lumbar spine, and an injury to her left knee. Seeking
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compensation for her injuries, plaintiff commenced a personal
injury action by filing a complaint on November 12, 2012.1
Less than a year later, on September 26, 2013, plaintiff
was injured in a second accident when a car struck the rear of
the car she was driving. According to her primary medical
provider, as a result of the September 2013 accident she
suffered, among other injuries, bulging discs and a herniated
disc in her cervical spine, bulging discs in her lumbar spine,
and aggravations of her previous cervical and lumbar injuries.
Seeking compensation for her injuries, plaintiff commenced a
personal injury action by filing a complaint on January 21,
2014.2
The following month, plaintiff filed a motion to
consolidate the actions. The motion was unopposed.3 At that
time, plaintiff did not have a medical report comparing the
1
Plaintiff has not included a copy of the complaint. The
pleadings that are included have a 2012 docket number and
plaintiff's brief states the complaint was filed on November 12,
2012.
2
Plaintiff has not included a copy of the complaint. The
pleadings that are included have a 2014 docket number and
plaintiff's brief states the complaint was filed on January 21,
2014.
3
The court stamped its order with a list of "Papers Considered,"
which included "opposed" and "unopposed," but did not check off
any of the lines next to the items included. Plaintiff
represents in her brief that the motion was unopposed.
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injuries plaintiff sustained in the two accidents. The court
denied the motion, explaining at the bottom of the order in a
note that states in its entirety:
[O]n the propriety of an order consolidating
two actions after separate trials on
liability, the court has taken this and
consolidation of the liability and damages
issue in one trial and given the lack of
closeness in time, separate accidents but
common issues of injury; confusion [of]
liability combined trials, and exercising
trial judge discretion in consolidation deny
the application.
Following the denial of the motion, plaintiff's medical
expert wrote a report in which he compared the injuries
plaintiff sustained in the two accidents and discussed how each
had contributed to the injuries. A medical expert retained by
the tortfeasor who caused the first accident also wrote a
report, opining that "any ongoing symptoms, to a reasonable
degree of medical probability, relate to the [second] accident."
Plaintiff filed a motion for reconsideration and submitted both
reports. The court denied the motion in an order it entered
without explanation.4 Plaintiff then filed a motion for leave to
file an interlocutory appeal. We granted the motion.
4
Once again the court stamped its order with a list of "Papers
Considered," which included "opposed" and "unopposed," but did
not check off any of the lines next to the items included; nor
does the order reference an oral or written explanation.
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The rule that authorizes consolidation of actions, Rule
4:38-1, states in subsection (a): "When actions involving a
common question of law or fact arising out of the same
transaction or series of transactions are pending in the
Superior Court, the court on a party's or its own motion may
order the actions consolidated." A trial court's decision to
grant or deny a party's motion to consolidate actions is
discretionary. Ibid.; see also Union Cnty. Imp. Auth. v.
Artaki, LLC, 392 N.J. Super. 141, 149 (App. Div. 2007).
We will not disturb a trial court's exercise of discretion
absent an abuse of such discretion. "Although the ordinary
'abuse of discretion' standard defies precise definition, it
arises when a decision is 'made without a rational explanation,
inexplicably departed from established policies, or rested on an
impermissible basis.'" Flagg v. Essex Co. Prosecutor, 171 N.J.
561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration &
Naturalization Service, 779 F.2d 1260, 1265 (7th Cir. 1985)).
An abuse of discretion also arises when "the discretionary act
was not premised upon consideration of all relevant factors, was
based upon consideration of irrelevant or inappropriate factors,
or amounts to a clear error in judgment." Masone v. Levine, 382
N.J. Super. 181, 193 (App. Div. 2005). Here, we are constrained
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to conclude that the trial court abused its discretion by
denying plaintiff's motion.
The trial court noted that the liability issues in the two
accidents involve separate questions of law and fact. However,
the liability of the respective defendants appears to be rather
straightforward. The defendant driver in the first accident
admitted in interrogatory answers that she swerved into the
oncoming lane of traffic. The defendant driver in the second
accident failed to maintain control of his vehicle, which
collided with the rear of the vehicle plaintiff was driving.
The defendant driver in the second accident and action was
negligent. Dolson v. Anastasia, 55 N.J. 2, 10 (1969). Of
course, the trial court did not have the benefit of depositions
or other discovery concerning liability when it made its ruling.
Nevertheless, on the record before it, it appeared that both
defendants were negligent and plaintiff was not.
The damage issues in plaintiff's actions involve common
questions of law and fact, a proposition that the trial court
acknowledged. In fact, absent consolidation, two juries could
reach inconsistent verdicts if the jury in the first action
attributes plaintiff's continuing symptoms to the injuries she
sustained in the second accident, and the jury in the second
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action attributes plaintiff's continuing symptoms to permanent
injuries she sustained in the first accident.
To the extent the court was concerned that the liability
issues would somehow confuse the jury if tried together, there
was no rational explanation for that concern, Flagg, supra, 171
N.J. at 571, and as the court overlooked the possibility of
inconsistent damage verdicts, its decision "was not premised
upon consideration of all relevant factors," Massone, supra,
382 N.J. Super. at 193. The court provided no other explanation
for its decision.
For those reasons, we conclude that the trial court
misapplied its discretion. Accordingly, we reverse and remand
for consolidation of the cases for discovery and trial.
Reversed and remanded.
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