Defendant Appealed the Denial of His Motion for Attorney Fees and Sanctions in Action Arising from An Automobile Accident

Liberty Mutual v. David Doivilus

Docket No.: A-4635-19

Decided December 7, 2021

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark

In a recent unpublished decision, the Appellate Division reviewed a trial court’s denial of sanctions sought by defendant after plaintiff unsuccessfully sought presuit preservation of discovery following a crash.

In Doivilus, on the morning of November 1, 2019, Ms. Braxton, a ninety-one-year-old woman, crashed her car into the back of defendant’s car parked on Mitchell Street in Orange Township. Defendant stated he was in the vehicle at the time. Plaintiff claimed the vehicle was unoccupied. Defendant sent plaintiff’s insurance company notice of suit for personal injury claim.

In May 2020, Liberty Mutual filed a complaint and a proposed order to show cause against defendant, pursuant to Rule 4:11-1, seeking “to preserve [] discovery in the likely event that [defendant] files a bodily injury lawsuit in the future.” Liberty Mutual asserted that its insured, Ms. Braxton, “has indicated that [defendant] was not inside the subject vehicle when it was struck,” contrary to defendant’s potential claim he sustained bodily injuries from the accident. Accordingly, Liberty Mutual demanded defendant “submit to a virtual deposition . . . [,] provide responses to discovery, including the last known location of his [car], any treatment records, and answer[s] to . . . Interrogatories” and that the trial court grant Liberty Mutual authority to subpoena third parties as necessary.

Upon receipt of the complaint, defendant’s attorney sent Liberty a letter asserting that the petition did not satisfy Rule 4:11-1 and was frivolous, under Rule 1:4-8, because the allegations underlining the petition were not supported by any credible factual basis and were hearsay. In response, Liberty Mutual amended its complaint to add Ms. Braxton as a plaintiff and include an additional exhibit concerning the EDR.

Plaintiff’s R. 4:11-1 petition was denied. Defendant continued to pursue sanctions, arguing it was frivolous because of the procedural deficiencies. The trial court denied the application, finding that although there were procedural deficiencies, the court did not find grounds to approve sanctions.

Defendant appealed, and the Appellate Division affirmed, finding no abuse of discretion of the trial court’s denial of sanctions under the circumstances.

This case is important to understand that a litigant can make an application prior to a lawsuit, pursuant to Rule 4:11-1 to preserve evidence in light of a potential lawsuit.  To prevail, there must be a genuine risk that testimony would be lost or evidence would be destroyed before a suit could be filed. In the case above, the plaintiff was 91 and the insurance company was concerned, because of her health issues, that her testimony could be lost in defense of the protentional claim. What’s more, they sought information regarding plaintiff’s car. Although this application was denied, there is always a possibility that this petition could be granted.

If you or someone you know has been sexually assaulted, injured in a car accident, truck crash, or slip and fall, call the experienced personal injury attorneys at Hark & Hark today. For personal injury matters, no money is paid up front, and fees are only collected if a recovery is made. At Hark & Hark, we represent clients for any case in any county in New Jersey Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Newark, Jersey City, Paterson, Elizabeth, Edison, Woodbridge, Lakewood, Toms River, Hamilton, Trenton, Clifton, Camden, Brick, Cherry Hill, Passaic, Middletown, Union City, Old Bridge, Gloucester Township, East Orange, Bayonne, Franklin Township, North Bergen, Vineland, and Union.


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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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