Court: New Jersey Superior Court Appellate Division; March 14, 1979; New Jersey; State Appellate Court
The court opinion, delivered by King, J. A. D., addresses the admissibility of a deposition from an unavailable party-defendant under B. 4:16-1(c). The case involves a December 1, 1973, automobile collision between plaintiff Eleanor J. Giannetti and defendant Anna Fenwick. At trial on January 30, 1978, Reliance Insurance Company sought to use Fenwick’s pretrial deposition as evidence, prompting the trial judge, Judge Bedford, to examine the efforts made to secure her attendance. The judge determined that Reliance's counsel and investigators had made reasonable efforts to procure Fenwick’s presence and that her absence was not due to their actions. These findings were supported by the record and deemed unassailable on appeal. The trial concluded with a defendant’s verdict, attributing 60% negligence to the plaintiff and 40% to the defendant. Key factors influencing the jury's decision included the plaintiff’s stop sign violation and Fenwick’s deposition testimony. The plaintiff's appeal, challenging the use of the deposition, was denied, affirming the trial judge's decision based on the provisions of R. 4:16-1(c), which permits deposition use when a witness is unavailable due to circumstances beyond the offering party's control.
The witness was found to be out of state and could not be compelled to appear in court, with her absence not caused by her insurance company, which was not a party to the litigation. Despite this, the offering of Anna Fenwick's deposition testimony met the criteria set out in subsection (c), although technically it was her, not the insurance company, who was the offering party. The court determined that the second sentence of subsection (c) allows for the use of a deposition in exceptional circumstances that serve the interest of justice, which applies to this case. The trial judge noted that if the deposition were not admitted, the insurance company might disclaim coverage due to non-cooperation, potentially limiting claimants' recovery to minimal amounts under the Unsatisfied Claim and Judgment Fund Law or nothing at all.
Fenwick's deposition, taken a year prior to trial, was thoroughly cross-examined by the plaintiff’s counsel without any questions from her own attorney. The court found no unfairness in the process and concluded that the plaintiff’s counsel had adequate opportunity to challenge Fenwick's testimony. The trial court’s decision to allow the deposition was justified, as it ensured that all relevant evidence was presented to the jury, leading to a well-supported conclusion. The court affirmed that the circumstances warranted the use of the deposition in the interest of justice, aligning with the provisions of R. 4:16-1(e).
