BRENDA HOPPER VS. LEXUS OF EDISON (L-3162-18, UNION COUNTY AND STATEWIDE), A-4436-19

Background

Hopper leased a 2014 Lexus titled to Toyota Lease Trust (TLT); Lexus of Edison (Penske) performed rear brake work days before an accident in which Hopper alleged brake failure and sudden acceleration.
Hopper had GEICO insurance; GEICO inspected the car, declared it a total loss, obtained Hopper’s power of attorney, removed the vehicle to Insurance Auto Auctions (IAA), and later acquired title from TLT.
Hopper’s counsel first notified Lexus of Edison of the accident and alleged brake failure on May 5, 2017; no inspection by defendant occurred before the vehicle was moved/sold.
Defendant requested inspection after suit; Hopper said the car had been sold at auction by third parties beyond her control.
Defendant moved to dismiss under R. 4:23-2(b)(3) for spoliation/failure to preserve evidence; the trial court dismissed the complaint with prejudice and denied reconsideration.
Appellate division affirmed, holding Hopper bore the preservation duty, dismissal was within the court’s discretion, and lesser sanctions would not cure defendant’s prejudice.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Who had the duty to preserve the vehicle?	Hopper: Lexus should have preserved/inspected the car after May 5 notice; TLT acted with defendant.	Lexus: Hopper (insured/lessee) retained ability to preserve, executed POA to GEICO, and TLT was the titled owner not controlled by defendant.	Court: Hopper had the preservation duty and failed to preserve; no evidence TLT acted as defendant’s agent.
Is dismissal motion procedurally improper because no disobedience of a court order?	Hopper: Sanctions under R. 4:23-2(b)(3) require an order violation; defendant’s motion was improper.	Lexus: Rule 4:23-2(b) applies to spoliation as discovery-equivalent misconduct; court may sanction.	Court: Rule 4:23-2(b) properly applies to spoliation; dismissal authority exists though not predicated on a prior discovery order.
Was defendant’s motion untimely under R. 4:24-2(a)?	Hopper: Motion to impose sanctions had to be filed before discovery closed.	Lexus: Spoliation motion can be treated akin to an in limine/dispositive motion on eve of trial when discovery cannot cure loss.	Court: While timing rules aim to allow cure, spoliation may be uncurable; late sanction motion was acceptable here.
Was dismissal with prejudice excessive; were lesser sanctions available?	Hopper: Court should impose lesser sanctions (e.g., adverse inference) or follow two-step Rule 4:23-5(a) process.	Lexus: No lesser sanction could remedy the inability to examine the vehicle or black box; defendant prejudiced.	Court: Dismissal with prejudice was within discretion; no lesser sanction could level the playing field given the lost vehicle and absent alternative evidence.

Key Cases Cited

Robertet Flavors, Inc. v. Tri-Form Constr., Inc., 203 N.J. 252 (2010) (spoliation analysis begins with identifying the spoliator and guides available remedies)
Aetna Life & Cas. Co. v. Imet Mason Contractors, 309 N.J. Super. 358 (App. Div. 1998) (a plaintiff’s destruction of evidence impairs defendant’s ability to defend and supports severe sanctions)
Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499 (1995) (standard of review for dismissal with prejudice for discovery misconduct is abuse of discretion)
Cockerline v. Menendez, 411 N.J. Super. 596 (App. Div. 2010) (court decides duty to preserve evidence; elements for preservation duty described)
Manorcare Health Servs., Inc. v. Osmose Wood Preserving, Inc., 336 N.J. Super. 218 (App. Div. 2001) (dismissal with prejudice appropriate only when no lesser sanction will erase prejudice)
Rosenblit v. Zimmerman, 166 N.J. 391 (2001) (trial court has inherent discretion to impose discovery sanctions)
Thabo v. Z Transp., 452 N.J. Super. 359 (App. Div. 2017) (strict compliance with two-step sanction process under Rule 4:23-5 is generally required)
Cho by Jo v. Trinitas Reg’l Med. Ctr., 443 N.J. Super. 461 (App. Div. 2015) (late motions in limine that are effectively dispositive can be unfair)
Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344 (2011) (abuse of discretion standard for discovery rulings)
C.A. by Applegrad v. Bentolila, 219 N.J. 449 (2014) (appellate deference to trial court on discovery matters unless abuse of discretion)