Preview
CAM-L-001693-19 01/25/2020 12:15:23 PM Pg 1 of 4 Trans ID: LCV2020172793
Russell Macnow, Esq. - 020571993
Russell Macnow Attorney At Law, LLC
265 Route 34, Suite E
Colts Neck, NJ 07722
T (732) 780-0040
F (732) 780-0090
rm@macnowlaw.com
Attorney for Defendant, Liberty Mutual Fire Insurance Company improperly
impleaded as Liberty Mutual Company
Our File No.: H1618
_____________________________________
LYNETTE JOHNSON, SUPERIOR COURT OF NEW JERSEY
LAW DIVISION:
Plaintiff, CAMDEN COUNTY
DOCKET NO. CAM-L-1693-19
v.
Civil Action
LIBERTY MUTUAL INSURANCE
COMPANY, PRETRIAL INFORMATION
EXCHANGE R. 4:25-7(b)
Defendant/third
party plaintiff,
v.
VERNON JOHNSON,
Third party defendant.
______________________________________
1. A list of all witnesses to be called in the party's case in chief.
Terry Fenimore
Liberty Mutual Insurance Company
Kaitlyn Bethel/Strahan
Liberty Mutual Insurance Company
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2. A list of all exhibits to be offered in the party's case in chief. All such exhibits shall
be premarked for identification and shall be described briefly. Each shall confer in
advance of trial to determine if any such exhibits can be admitted into evidence by
agreement or without objection.
D1 – Certified Liberty Mutual insurance policy
D2 – D35 – Photos
D36 – Liberty Mutual scope and estimate
D37 – February 3, 2019 correspondence from Liberty Mutual to Plaintiff
D38 – February 20, 2019 correspondence from Liberty Mutual to Plaintiff
3. A list of any proposed deposition or interrogatory reading(s) by page and line number
or by question number.
None anticipated at this time.
4. Any in limine or trial motions intended to be made at the commencement of trial,
with supporting memoranda. Such motions shall not go on the regular motion
calendar.
Any objections to the proposed admission into evidence of any exhibit or to any
reading by any other party, and any response to an in limine or trial motion shall be
served on all parties no later than two days prior to the trial.
Defendant may object to the introduction of plaintiff’s damages estimates.
5. A list of all anticipated problems with regard to the introduction of evidence in each
party's case in chief, especially, but without limitation, as to any hearsay problems,
and legal argument as to all such anticipated evidence problems.
None anticipated at this time.
In addition, prior to opening statements, each party, shall submit the following to the
trial judge:
(a)Copies of any Pretrial information Exchange materials that have been exchanges
pursuant to this rule, and any objections made thereto;
(b)Stipulations reached on contested procedural, evidentiary and substantive issues;
and in jury trials;
(c)Any special voir dire questions;
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(d)A list of proposed jury instructions with specific reference to the Model Civil Jury
Charges, if applicable;
(e)Any special jury instructions with applicable legal authority;
It is the insured’s burden “to bring the claim within the basic terms of the
policy”. Sears Roebuck & Co. v. National Union Fire Ins. Co., 340 N.J. Super. 223, 234
(App. Div. 2001), quoting, Reliance Ins. Co. v. Armstrong World Indus., Inc., 292 N.J.
Super. 365, 377 (App. Div. 1996). On the other hand, the insurer bears the burden of
establishing that any matter falls within the exclusionary provisions of the policy.
Hartford Acc. & Indem. Co. v. Aetna Life & Cas. Ins. Co., 98 N.J. 18, 26 (1984). If the
evidence presented by the insurer tends to prove that the loss falls within “an
expressly excepted cause, the burden is upon the plaintiffs to overcome that evidence”.
Newman v. Great American Ins., Co., 86 N.J. Super. 391, 403 (App. Div. 1965). In that
case
“. . . it is not enough to show that the plaintiff’s loss may have been due to
one or more causes for only one of which the insurer would be liable; he must
individuate as the cause the one for which the insurer would be liable . . . .”
Brindley v. Firemen’s Ins. Co., 35 N.J. Super. 1, 11 (App. Div. 1955), quoting,
Marks v. Lumberman’s Ins. Co. of Philadelphia, 49 A.2d 855, 856 (Pa. Super.
Ct. 1946).
“In such a case the plaintiff’s proofs must be such as to enable the factfinder to
find without resort to shear conjecture the amount of the particular loss ascribed to
the hazard assumed by the carrier.” Id. at 8.
When the precise cause of a happening is left to conjecture and may be as
reasonably attributed to a condition for which no liability attaches as to one
for which it does, then plaintiff is not entitled to recover and the evidence
should not be submitted to the jury. Id. at 12, quoting, Perito v. Northern
Ins. Co. of New York, 69 N.Y.S. 2d 611, 613 (Sup. Ct. 1947).
It is generally plaintiffs’ burden to prove damages. Caldwell v. Haynes, 136 N.J. 422,
436 (1994). “It is . . . sufficient that the plaintiff prove damages with such certainty as the
nature of the case may permit, laying a foundation which will enable a trier of fact to make
a fair and reasonable estimate.” Id., quoting, Lane v. Oil Delivery, Inc., 216 N.J. Super. 413,
420 (1987). “The plaintiff . . . bears the burden of proof and it is the responsibility of the
plaintiff to prove to the jury some evidentiary and logical basis for calculating or, at least,
factually estimating a compensatory award.” Id., quoting, Huddell v. Levin, 537 F2d. 736,
743 (3rd Cir. 1976).
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Expert testimony is generally required “where the fact [-finder] is not expected to
have sufficient knowledge or experience or have to speculate without the aid of expert
testimony.” Torres v. Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001). Expert
testimony is necessary to prove the scope of damage and cost to repair the property. See, St.
Louis, LLC v. Final Touch Glass & Mirror, Inc., 386 N.J. Super. 117, 187 (App. Div. 2006).
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Preview
CAM-L-001693-19 01/25/2020 12:15:23 PM Pg 1 of 4 Trans ID: LCV2020172793 Russell Macnow, Esq. - 020571993 Russell Macnow Attorney At Law, LLC 265 Route 34, Suite E Colts Neck, NJ 07722 T (732) 780-0040 F (732) 780-0090 rm@macnowlaw.com Attorney for Defendant, Liberty Mutual Fire Insurance Company improperly impleaded as Liberty Mutual Company Our File No.: H1618 _____________________________________ LYNETTE JOHNSON, SUPERIOR COURT OF NEW JERSEY LAW DIVISION: Plaintiff, CAMDEN COUNTY DOCKET NO. CAM-L-1693-19 v. Civil Action LIBERTY MUTUAL INSURANCE COMPANY, PRETRIAL INFORMATION EXCHANGE R. 4:25-7(b) Defendant/third party plaintiff, v. VERNON JOHNSON, Third party defendant. ______________________________________ 1. A list of all witnesses to be called in the party's case in chief. Terry Fenimore Liberty Mutual Insurance Company Kaitlyn Bethel/Strahan Liberty Mutual Insurance Company 1 CAM-L-001693-19 01/25/2020 12:15:23 PM Pg 2 of 4 Trans ID: LCV2020172793 2. A list of all exhibits to be offered in the party's case in chief. All such exhibits shall be premarked for identification and shall be described briefly. Each shall confer in advance of trial to determine if any such exhibits can be admitted into evidence by agreement or without objection. D1 – Certified Liberty Mutual insurance policy D2 – D35 – Photos D36 – Liberty Mutual scope and estimate D37 – February 3, 2019 correspondence from Liberty Mutual to Plaintiff D38 – February 20, 2019 correspondence from Liberty Mutual to Plaintiff 3. A list of any proposed deposition or interrogatory reading(s) by page and line number or by question number. None anticipated at this time. 4. Any in limine or trial motions intended to be made at the commencement of trial, with supporting memoranda. Such motions shall not go on the regular motion calendar. Any objections to the proposed admission into evidence of any exhibit or to any reading by any other party, and any response to an in limine or trial motion shall be served on all parties no later than two days prior to the trial. Defendant may object to the introduction of plaintiff’s damages estimates. 5. A list of all anticipated problems with regard to the introduction of evidence in each party's case in chief, especially, but without limitation, as to any hearsay problems, and legal argument as to all such anticipated evidence problems. None anticipated at this time. In addition, prior to opening statements, each party, shall submit the following to the trial judge: (a)Copies of any Pretrial information Exchange materials that have been exchanges pursuant to this rule, and any objections made thereto; (b)Stipulations reached on contested procedural, evidentiary and substantive issues; and in jury trials; (c)Any special voir dire questions; 2 CAM-L-001693-19 01/25/2020 12:15:23 PM Pg 3 of 4 Trans ID: LCV2020172793 (d)A list of proposed jury instructions with specific reference to the Model Civil Jury Charges, if applicable; (e)Any special jury instructions with applicable legal authority; It is the insured’s burden “to bring the claim within the basic terms of the policy”. Sears Roebuck & Co. v. National Union Fire Ins. Co., 340 N.J. Super. 223, 234 (App. Div. 2001), quoting, Reliance Ins. Co. v. Armstrong World Indus., Inc., 292 N.J. Super. 365, 377 (App. Div. 1996). On the other hand, the insurer bears the burden of establishing that any matter falls within the exclusionary provisions of the policy. Hartford Acc. & Indem. Co. v. Aetna Life & Cas. Ins. Co., 98 N.J. 18, 26 (1984). If the evidence presented by the insurer tends to prove that the loss falls within “an expressly excepted cause, the burden is upon the plaintiffs to overcome that evidence”. Newman v. Great American Ins., Co., 86 N.J. Super. 391, 403 (App. Div. 1965). In that case “. . . it is not enough to show that the plaintiff’s loss may have been due to one or more causes for only one of which the insurer would be liable; he must individuate as the cause the one for which the insurer would be liable . . . .” Brindley v. Firemen’s Ins. Co., 35 N.J. Super. 1, 11 (App. Div. 1955), quoting, Marks v. Lumberman’s Ins. Co. of Philadelphia, 49 A.2d 855, 856 (Pa. Super. Ct. 1946). “In such a case the plaintiff’s proofs must be such as to enable the factfinder to find without resort to shear conjecture the amount of the particular loss ascribed to the hazard assumed by the carrier.” Id. at 8. When the precise cause of a happening is left to conjecture and may be as reasonably attributed to a condition for which no liability attaches as to one for which it does, then plaintiff is not entitled to recover and the evidence should not be submitted to the jury. Id. at 12, quoting, Perito v. Northern Ins. Co. of New York, 69 N.Y.S. 2d 611, 613 (Sup. Ct. 1947). It is generally plaintiffs’ burden to prove damages. Caldwell v. Haynes, 136 N.J. 422, 436 (1994). “It is . . . sufficient that the plaintiff prove damages with such certainty as the nature of the case may permit, laying a foundation which will enable a trier of fact to make a fair and reasonable estimate.” Id., quoting, Lane v. Oil Delivery, Inc., 216 N.J. Super. 413, 420 (1987). “The plaintiff . . . bears the burden of proof and it is the responsibility of the plaintiff to prove to the jury some evidentiary and logical basis for calculating or, at least, factually estimating a compensatory award.” Id., quoting, Huddell v. Levin, 537 F2d. 736, 743 (3rd Cir. 1976). 3 CAM-L-001693-19 01/25/2020 12:15:23 PM Pg 4 of 4 Trans ID: LCV2020172793 Expert testimony is generally required “where the fact [-finder] is not expected to have sufficient knowledge or experience or have to speculate without the aid of expert testimony.” Torres v. Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001). Expert testimony is necessary to prove the scope of damage and cost to repair the property. See, St. Louis, LLC v. Final Touch Glass & Mirror, Inc., 386 N.J. Super. 117, 187 (App. Div. 2006). 4