Nov 21, 2018

Trial Court Refuses Insurer's Pre-Suit Application Under R. 4:11-1 to Preserve Evidence

In a case involving a pre-suit application brought pursuant to Court Rule 4:11-1, a trial court recently denied the petitioner’s request to obtain video surveillance and security reports from a casino, when its insured received a letter that a claim would be filed against him stemming from an incident in the casino.  Liberty Mutual Ins. Co. v. Borgata Hotel, - N.J. Super. – (Law Div. 2018).

Evan Sophias was insured by Liberty Mutual.  He received a letter from the Borgata advising him that an individual would be filing a claim against him stemming from an incident in which she was knocked to the ground by Mr. Sophias and his companions.  Liberty Mutual, on its insured’s behalf, sought to obtain video surveillance and security reports from the incident at issue pursuant to R, 4:11-1 because it anticipated that this matter would lead to litigation and the security footage and reports would be needed to determine the facts of the accident.  The trial court denied the petition. 

R. 4:11-1 allows persons to perpetuate their testimony or someone else’s or to inspect documents or property by filing a verified petition pre-suit.  The Rule contemplates a very narrow range of circumstances by which a party can perpetuate testimony or preserve evidence under the Rule and does not allow for a party to obtain advanced discovery simply to assist a party in preparing a complaint or defending against a potential claim.

The trial court held that Liberty Mutual’s assertion was insufficient to support a petition under the Rule.  The court noted that the Rule was not intended to authorize pre-suit discovery for the sole purpose of assisting a perspective plaintiff in acquiring facts necessary to frame a complaint or to do the same for a defendant.  The court thus denied the petition.