Bits & Pieces

Emery v. AAF

Court of Appeals of Kentucky.



AAF-McQUAY, INC., d/b/a AAF International, Appellee.

Sept. 30, 2005.


TAYLOR, Judge.

Emery Worldwide, a subsidiary of CNF, Inc., (Emery) brings this appeal from a June 24, 2003, summary judgment of the Jefferson Circuit Court awarding $213,000.00 in damages for a lost shipment of electronic melter components. We affirm.

AAF-McQuay, Inc., d/b/a AAF International (AAF) desired to ship two pallets of electronic melter components from Arkansas to New Jersey. These components contained amounts of platinum and rhodium, which are undisputedly precious metals. The shipment was to be picked up in Fayetteville, Arkansas, and delivered to Carteret, New Jersey. To effectuate the transport, Lewis F. Sanders instructed his scheduling clerk, Barbara Norris, to find a carrier that would ship and insure the components. Norris then contacted John Maxwell, the general manager of Emery’s terminal in Tulsa, Oklahoma. Norris claims she informed Maxwell that the shipment contained components comprised of platinum and rhodium. Maxwell alleges he was never informed the shipment included precious metals because the shipment of precious metals is forbidden by Emery’s Service Guide.

Nevertheless, on March 13, 2000, Maxwell contacted Norris and informed her that the shipment would be insured for its full declared value of $213,000.00 and the shipping charge would be $1,591.98. Thereafter, Norris completed a Bill of Lading and an Emery Air Waybill (Waybill). On the Waybill, Norris described the shipment as “ELECT. MELTER COMPONENTS.” The components were then packaged for shipment, and the shipment was delivered to an Emery driver.

It is undisputed that the shipment never reached its intended destination. Thereafter, AAF submitted a formal claim of loss to Emery. Emery confirmed by letter, dated April 4, 2000, that it received the claim and would process it. Despite repeated demands, AAF received no denial or approval of its claim from Emery.

On August 28, 2001, AAF filed a complaint against Emery seeking to recover $213,000.00 in damages representing the value of the lost shipment. In the complaint, AAF alleged breach of contract, negligence, conversion, and violation of the Carmack Amendment to the Interstate Commerce Act (49 U.S.C. § 14706(a)(1)). On October 3, 2002, AAF moved for summary judgment; thereafter, Emery filed a cross-motion for summary judgment. While these motions were pending, Emery filed a motion to dismiss on the basis of forum non conveniens, but the circuit court denied Emery’s motion. Subsequently, on June 24, 2003, the circuit court granted AAF’s motion for summary judgment and awarded damages in the amount of $213,000.00, representing the declared value of the lost shipment. This appeal follows.

Emery contends the circuit court committed error by entering summary judgment in favor of AAF. Summary judgment is proper where there exist no material issues of fact and movant is entitled to judgment as a matter of law. Ky. R. Civ. P. 56; Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky.1991). Initially, Emery contends the circuit court erred by granting summary judgment upon AAF’s breach of contract claim. The breach of contract claim revolved around interpretation and construction of Emery’s Air Waybill. Emery essentially argues that federal law, not state law, controls the interpretation of the Waybill by operation of the Airline Deregulation Act (ADA) (49 U.S.C. § 41713(b)(4)(A)). We disagree.

In American Airlines v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995), the United States Supreme Court was faced with the issue of whether a claim for breach of contract under state law was preempted by the ADA. In answering this question in the negative, the Supreme Court held:

Nor is it plausible that Congress meant to channel into federal courts the business of resolving, pursuant to judicially fashioned federal common law, the range of contract claims relating to airline rates, routes, or services. The ADA contains no hint of such a role for the federal courts….

The conclusion that the ADA permits state-law-based court adjudication of routine breach-of-contract claims also makes sense of Congress’ retention of the FAA’s saving clause, § 1106, 49 U.S.C.App. § 1506 (preserving “the remedies now existing at common law or by statute”). The ADA’s preemption clause, § 1305(a)(1), read together with the FAA’s saving clause, stops States from imposing their own substantive standards with respect to rates, routes, or services, but not from affording relief to a party who claims and proves that an airline dishonored a term the airline itself stipulated. This distinction between what the State dictates and what the airline itself undertakes confines courts, in breach-of-contract actions, to the parties’ bargain, with no enlargement or enhancement based on state laws or policies external to the agreement.

Id. at 232-233(citations omitted).

In American Airlines, the Supreme Court clearly concluded that a breach of contract claim was not preempted by the ADA. As a breach of contract claim is not preempted by the ADA, we think it logically follows that the breach of contract claim must be interpreted pursuant to state law. Based upon this reasoning, we reject Emery’s contention that federal law controls the interpretation of the Waybill. As AAF brought a breach of contract action against Emery, we believe that state law is applicable when interpreting the contract (Waybill) between the parties. Having so concluded, we shall now examine the Waybill at issue.

The Waybill contained provisions on the front and back of the document. On the front, it specifically stated:

I/we agree that Emery’s Terms and Conditions of Contract (“Terms”) as set forth on the front and reverse hereof apply to this shipment.

This provision, on the front of the Waybill, incorporated by reference the terms on its reverse side. A signature line appeared on the bottom front page, and there appeared a signature of an AAF representative. On the reverse side of the Waybill, there was no signature line. Also, the following provision was inserted on the reverse side:

The Shipper agrees that this shipment is subject to the TERMS stated herein and those TERMS AND CONDITIONS in the Service Guide in effect on the date of shipment, which are incorporated herein by reference, and made a part of this contract. In the case of conflict between the TERMS contained herein and those TERMS AND CONDITIONS in the Service Guide, the TERMS AND CONDITIONS in the Service Guide shall control. The Service Guide is available at all our offices or a copy can be obtained by writing to Emery Worldwide, One Lagoon Drive, Suite # 400, Redwood City, California 94065-1564. ALL TERMS, including, but not limited to, all the limitations of liability, shall apply to our agents and their contracting carriers. As used herein, the words “our,” “we,” and “us” shall refer to Emery Worldwide, a CNF company.

The above provision, on the reverse side of the Waybill, attempted to incorporate by reference the additional terms and conditions contained in Emery’s Service Guide. Relevant to this appeal is the following exclusion contained in Emery’s Service Guide:

The following shipments will not be acceptable for transportation by Emery:


C. Shipments of gold or other precious metals including but not limited to bronze, copper, gold or silver coins, coin collections, gems, and precious stones.

Pursuant to this provision of Emery’s Service Guide, Emery argues that it does not accept for shipment cargos of precious metals. Emery claims it is undisputed that AAF’s shipment contained precious metals. As such, Emery maintains that it is not liable for the loss of the shipment by operation of the Waybill and Emery’s Service Guide.

In a well-reasoned and erudite opinion, the circuit court rejected Emery’s argument. Relying upon state law, the circuit court concluded that the provision, on the reverse side of the Waybill, incorporating Emery’s Service Guide was unenforceable. Specifically, the circuit court reasoned:

KRS 446.060 provides that “[w]hen the law requires any writing to be signed by a party thereto, it shall not be deemed to be signed unless the signature is subscribed at the end or close of the writing.” This statute embodies the idea that when a signature is placed at the end of an agreement, there is created a logical inference that the document contains all of the terms by which the signer intends to be bound. Gentry’s Guardian v. Gentry, Ky., 293 S.W. 1094 (1927); R.C. Durr Co. v. Bennett Industries, Inc., Ky.App., 590 S.W.2d 338 (1979). However, Kentucky courts have also consistently held that this statute does not abolish the doctrine of incorporation by reference. See, e.g., Childers Venters, Inc. v. Sowards, Ky., 460 S.W.2d 343 (1970); Bartelt Aviation, Inc. v. Dry Lake Coal Co., Inc., Ky., 682 S.W.2d 796 (1985). Generally, this doctrine provides that

[w]when the signature is in the middle of a writing, it gives no assurance that the contracting parties intend to be bound by matters which do not appear above their signatures; however, when a signature is placed after clear language [that] has expressed the incorporation of other terms and conditions by reference, it is a logical inference that the signer agrees to be bound by everything incorporated.

Bartelt, 682 S.W.2d at 797, citing R.C. Durr Co., supra. In order for the incorporating language to be valid and enforceable, it must appear above the signature line. Consolidated Aluminum Corp. v. Krieger, Ky.App., 710 S.W.2d 869 (1986).

The present matter presents the unusual problem of a double incorporation. That is, a statement on the front page of Emery’s Waybill incorporates the terms and conditions on the reverse side. Among those terms on the reverse side is yet another incorporating provision, this one relating to the separate Emery Service Guide. When viewed in light of the authorities cited above, this double incorporation is not enforceable against AAF.

Initially, there is no doubt that the terms and conditions on the reverse side of the Waybill appear after the signature line designated for AAF’s agent. However, there is a statement above the signature of AAF’s representative that states “I/we agree that Emery’s Terms and Conditions of Contract (“Terms”) as set forth on the front and reverse hereof apply to this shipment.” Pursuant to Kentucky law as cited above, this provision on the front of the Waybill is enforceable. Nonetheless, the second incorporation provision on the reverse of the Waybill is not enforceable since the Service Guide was not provided to AAF and Kentucky law does not recognize a double incorporation.

Traditionally, the doctrine of incorporation by reference has been applied in situations where a party to a contract signs a document that includes a provision that incorporates various terms on the reverse side of the same document. The doctrine is also applicable in situations where the terms being incorporated are embodied in a separate document that is provided to the party charged with knowledge of the terms therein prior to execution of the contract. See, e.g., Buck Run Baptist Church, Inc. v. Cumberland Surety Ins. Co., Ky., 983 S.W.2d 501 (1998). Under these traditional circumstances, the single key factor is that all of the terms of the contract are available to the signer at the time the document is executed. Conversely, in Twin City Fire Ins. Co. v. Terry, Ky., 472 S.W.2d 248 (1971), the court refused to uphold an exclusionary term in an insurance contract that was located in a separate document incorporated by reference into the policy because the secondary document was not provided to the insured. In the present action, the precious metal exclusion, found in Emery’s Service Guide, a separate document referenced on the reverse side of the Waybill after the signature line, was never provided to AAF. Emery has presented no evidence to refute this. This alone warrants non-enforcement of the exclusion.

Further this Court can find no precedent in Kentucky for an extension of the doctrine of incorporation by reference to encompass a situation involving a double incorporation. The facts in this matter are illustrative of why such an extension of the doctrine is unreasonable. While the provision on the front of the Waybill references the terms and conditions on the back, it does not notify AAF that there is yet another distinct incorporating provision on the reverse side. Similarly, the provision on the front of the Waybill provides no notice to AAF that there is another document other than the Waybill itself that contains important terms and conditions of the contract. Rather, the first and only reference to the Service Guide is found on the back of the Waybill, after the signature line. It is simply not conceivable that a party to a shipping contract, such as AAF, would or should anticipate that the provision on the front of Emery’s Waybill portends yet another incorporating provision to be found on the reverse side referencing a nearly twenty page document distinct from the Waybill containing a large number of detailed contract provisions. This is especially true in light of the fact that the incorporating term on the back of the Waybill, the only one referencing the Service Guide, cannot be read unless the top page of the Waybill is separated from the copies below it (footnote omitted). Taken into conjunction with the fact that AAF was never provided a copy of the Service Guide, the circumstances of this action do not warrant an extension of the doctrine of incorporation by reference so as to enforce the precious metal exclusion.

We agree with the circuit court’s interpretation of the Waybill and particularly with the court’s conclusion that the incorporation provision on the reverse side of the Waybill was unenforceable. As pointed out by the circuit court, it is undisputed that if the electronic melter components did not contain precious metals, Emery would be liable to AAF for breach of contract to deliver the components. Accordingly, we conclude the circuit court properly interpreted the Waybill and concluded that Emery breached its duties thereunder. We also believe the circuit court correctly entered summary judgment against Emery for $213,000.00, the value of the lost shipment of electronic melter components.

Emery also argues that AAF’s complaint is time-barred by Section BIII, Subpart A(5) of its Service Guide. As hereinbefore concluded, we do not believe Emery’s Service Guide was properly incorporated by reference into the Waybill. Thus, any reliance upon its provision is clearly misplaced. Consequently, AAF’s complaint is not time-barred.

Emery further asserts the circuit court committed error by denying its motion to dismiss pursuant to the doctrine of forum non conveniens. We disagree.

Under the doctrine of forum non conveniens, it is recognized:

[T]here are certain instances in which a court properly vested with jurisdiction and venue may, nonetheless, dismiss an action if it determines that it is more convenient for the litigants and witnesses that the action be tried in a different forum.

Roos v. Kentucky Educ. Ass’n, 580 S.W.2d 508 (Ky.App.1979). It is within the sound discretion of the trial court to dismiss an action upon the basis of forum non conveniens, and that discretion will not be disturbed on appeal absent a clear abuse.

In this case, the complaint was filed on August 28, 2001, and Emery’s motion to dismiss upon forum non conveniens grounds was not filed until February 28, 2003. Emery waited some seventeen months before filing the motion. While there exist no proscribed time limitations upon the filing of such motion, we, nevertheless, think it incumbent upon Emery to file the motion within a reasonable time. In any event, we cannot say the circuit court abused its discretion by denying Emery’s motion. The record indicates that Emery is a global corporation and transacts business in the Commonwealth. Emery has a place of business in Jefferson County, and Emery contracted with an AAF office located in Jefferson County to deliver the shipment at issue. Considering the factors listed in Roos, we believe this Commonwealth is not an inconvenient forum.

We view Emery’s remaining contentions as moot.

For the foregoing reasons, the summary judgment of the Jefferson Circuit Court is affirmed.



Standard Funding v. Universal Roadmaster

Superior Court of New Jersey,

Appellate Division.

STANDARD FUNDING CORP., Plaintiff-Respondent,


UNIVERSAL ROADMASTER, INC., John Catania, Global Underwriters Agency, Inc.,



Lancer Insurance Company, Defendant-Appellant.

Argued Sept. 13, 2005.

Decided Oct. 12, 2005.



Defendant, Lancer Insurance Company (Lancer), appeals from a judgment in the amount of $100,270.08 in favor of plaintiff, Standard Funding Corp. (Standard), entered after a bench trial. Standard’s claim against Lancer was for a return of unearned insurance premium that Standard had paid on behalf of its borrower, the insured, Universal Roadmaster Inc. (Universal), which owned a fleet of trucks used in interstate commerce. As part of its loan arrangement with Universal, Standard retained a security interest in any return on unearned premiums up to the amount of the unpaid balance on the loan. The premium paid to secure the policy was $171,494.00, and the policy period was from November 12, 2000 to November 12, 2001. The policy was cancelled effective April 9, 2001. Therefore, the policy was in effect for 149 days. Thus, on a prorated basis the return premium would be $101,486.86. As a result of an adjustment to reflect credit for a sum collected by Standard from a settling party, the judgment was entered for a slightly different amount, $100,270.08.

At trial, Lancer attempted to establish that Universal had misrepresented the number of vehicles in its fleet and that Lancer was entitled to recalculate the premium. By its methodology, Lancer asserted that the premium should have been $459,658.00, resulting in a net prorated return of premium owed to Standard of only $6,290.58. Judge D’Italia rejected Lancer’s contentions in this regard based upon the terms of the insurance contract and because Lancer failed to adduce competent evidence to establish the identity, dates of acquisition, and other required information regarding vehicles owned by Universal during the policy period.

When the two-day bench trial on July 14 and 15, 2003 concluded, the judge reserved decision. Before he issued his decision, Lancer filed a motion to “supplement the record” on September 24, 2003, seeking to furnish additional information regarding vehicles purportedly owned by Universal during the policy period. On October 25, 2003, Judge D’Italia heard argument and denied Standard’s motion. On January 27, 2004, the judge issued a written opinion. Final judgment in favor of Standard against Lancer for $100,270.08 was ordered on February 24, 2004. This appeal followed.

On appeal, Lancer argues:









We reject these arguments and affirm substantially for the reasons expressed by Judge D’Italia in his comprehensive and well-reasoned written decision of January 27, 2004.

In need of insurance coverage for its fleet of vehicles, Roadmaster contacted its retail insurance broker, Global Underwriters, which in turn contacted a wholesale insurance broker, New Century Global, in an effort to place coverage. In a September 18, 2000 letter, New Century wrote to the D.C. White Agency, the underwriting arm of Lancer that focuses on trucking policies, soliciting a quote for a truckers’ liability policy for Roadmaster. The letter noted that Roadmaster’s current policy was issued on a gross receipts basis and that Roadmaster would prefer to remain on a gross receipts basis if possible. With a gross receipts policy, the premium is based upon the gross revenue of the insured during the policy period. The premium paid at the inception of the policy is an estimated amount, and at the end of the policy period an audit determines the actual premium with an appropriate adjustment.

Although the application requested issuance of a policy on a gross receipts basis, the policy was issued on the basis of scheduled vehicles. The policy specifically enumerated thirty-four vehicles with a premium ascribed to each. The total premium was $171,494.00. Standard advanced that sum and paid it in full to Lancer. Standard notified Lancer of its premium finance agreement, resulting in Standard’s security interest in any return of premiums. The finance agreement also afforded Standard the right to cancel the policy if Universal defaulted in its loan payment obligations to Standard.

In January 2001, Lancer began receiving claims for accidents involving Universal’s vehicles, some of which pertained to vehicles that were not scheduled on the policy. Because of Universal’s alleged misrepresentation in its application for insurance in failing to identify all of its owned vehicles, Lancer cancelled the policy effective April 9, 2001. Simultaneously and independently, Standard exercised its right at about the same time to cancel the policy because of Universal’s default in payments to it. Standard’s cancellation date was April 20, 2001. Thus, the earlier cancellation date, April 9, 2001, controls, and the parties do not dispute that the policy was therefore in effect for 149 days.

Based upon his analysis of the policy language and his consideration of the testimony presented, including expert testimony presented by Standard, Judge D’Italia concluded that the policy was indeed issued on a scheduled vehicles basis, not a gross receipts basis. That finding is well supported by the evidence in the record, and we have no occasion to interfere with it. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Lancer attempted to establish Universal’s ownership during the policy period of vehicles other than those listed in its application and scheduled on the policy. It proffered two exhibits, D-6 and D-7, which were faxes from New Century to D.C. White dated February 6, 2001 and February 27, 2001, respectively. Each contained a list of vehicles purportedly owned by Universal. The only witness called by Lancer at trial was the President of D.C. White. He was neither the author nor the recipient of the letters and he had no knowledge of the business practices and records of Universal. Lancer urged the admissibility of the documents under the Business Records Exception to the Hearsay Rule, N.J.R.E. 803(c)(6). Judge D’Italia rejected the proffer and excluded the documents as inadmissible hearsay. He wrote:

D6 and D7 are inadmissible hearsay. Defendant’s contention that they are admissible under Rule 803(c)6 is unavailing. That Rule provides that a statement contained in a writing made at or near the time of observation by a person with actual knowledge or from information supplied by such a person is admissible if the writing was made in the regular course of business and it was the regular practice of that business to make it unless the sources of the information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.

D6 is a fax from New Century enclosing a fax from Global which contains VIN numbers. The New Century fax is, at best, a business record of both New Century and D.C. White. The Global fax is an included hearsay document. The substantive information sought to be conveyed is that the numbers listed on the Global fax are VIN numbers for trailers owned by Universal. The Global fax indicates that it is from “Audra Severiani x38”. No foundation has been laid with respect to whether Audra Severiani had any actual knowledge or had been supplied information by a person with actual knowledge of the trailers owned by Universal or their VIN numbers. There was no foundational testimony that it is the regular practice of insurance underwriters to accept a fax from a subagent of an insurance agent as the basis for accepting a risk.

The same analysis hold for D7. In this case, the fax comes directly from Universal’s agent but the document attached has no form of identification. There is no independent evidence that Global’s statement was made with actual knowledge or from information supplied by a person with actual knowledge or that the underlying list was made in the regular course of business.

We agree with the judge’s analysis and find no error or mistaken exercise of discretion in his exclusion of this evidence. Thus, Lancer failed to provide competent evidence establishing ownership by Universal during the policy period of additional vehicles.

Lancer also argued before the trial court, and it continues to argue before us, that it was entitled to assess additional premiums because it was required by federal law to provide coverage for all vehicles owned by Universal. Because of its interstate trucking activities, Universal was subject to the Federal Motor Carrier Act, 49 U.S.C.A. § 13501. Any vehicle operated by an interstate motor carrier must maintain at least $750,000 of insurance coverage. 49 U.S.C.A. § 31139. To comply with the minimum financial responsibility requirements of the Act, motor carriers must file with the Department of Transportation an insurance policy with the minimum required coverage limits. 49 U.S.C.A. § 13906. The Secretary of Transportation has promulgated regulations requiring that insurance policies covering motor carriers subject to the Act must include in their policy an endorsement, known as Form MCS-90, which states in pertinent part:

In consideration of the premium stated in the policy to which this endorsement is attached, the insurer (the company) agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or not each motor vehicle is specifically described in the policy and whether or not such negligence occurs on any route or in any territory authorized to be served by the insured or elsewhere. Such insurance as is afforded, for public liability, does not apply to injury to or death of the insured’s employees while engaged in the course of their employment, or property transported by the insured, designated as cargo. It is understood and agreed that no condition, provision, stipulation, or limitation contained in the policy, this endorsement, or any other endorsement thereon, or violation thereof, shall relieve the company from liability or from the payment of any final judgment, within the limits of liability herein described, irrespective of the financial condition, insolvency or bankruptcy of the insured. However, all terms, conditions, and limitations in the policy to which the endorsement is attached shall remain in full force and effect as binding between the insured and the company. The insured agrees to reimburse the company for any payment made by the company on account of any accident, claim, or suit involving a breach of the terms of the policy, and for any payment that the company would not have been obligated to make under the provisions of the policy except for the agreement contained in this endorsement.

[49 C.F.R. § 387.15 (2005).]

Lancer argues that because this legally-required endorsement obligated it to provide coverage for all of Universal’s vehicles, it was entitled to recalculate the premium charged to Universal to include all vehicles Universal owned. Judge D’Italia rejected that argument. He stated:

This endorsement requires the insurance company to cover all claims, even for vehicles not listed on the insurance policy, and gives the insurance company a right of reimbursement from the insured for claims paid on unscheduled vehicles. The purpose of the regulation is to insure that a financially responsible party will be available to compensate third parties injured in a collision with an ICC carrier. The endorsement attaches to all policies issued to interstate carriers regardless of whether it is physically appended to the policy and regardless of whether the insurer has charged a premium commensurate with the risk of covering all of the carrier’s vehicles and not just those listed on a specified vehicle policy. The mandated endorsement does not authorize the insurer to recalculate its premium in the event that the insurer fails to take its requirements into account. The insurer’s remedy is to seek reimbursement from its insured for any claims paid and is in the nature of indemnification. This remedy is clearly more favorable to the insurer than merely adjusting the premium to reflect an undisclosed vehicle. Where the insured fails to disclose and cover all of the vehicles in its fleet, it makes far more sense to require the insured to indemnify the insurer than to seek an after-accident adjustment of the premium.

We agree with the judge’s analysis. In any event, as we have stated, Lancer failed to prove by competent evidence the ownership by Universal of additional vehicles during the policy period.

Finally, we address the denial of Lancer’s post-trial motion to “supplement the record.” Standard correctly points out that the rules relied upon by Lancer as authority for its motion are inapplicable. Rule 1:7-4(b) authorizes a motion to amend findings, amend a final order or judgment, or grant a rehearing after a final order or judgment has been entered following a bench trial. When Lancer filed its motion, no final decision had been made and no final judgment had been entered. Rule 2:5-5 is likewise inapplicable; that rule authorizes supplementation of a record on appeal.

Judge D’Italia correctly characterized Lancer’s motion as one to reopen the case and, in effect, resume the trial by introducing additional evidence. The judge noted that the proffered evidence was plainly available to Lancer and could have been produced during the trial. The judge stated:

So what this amounts to is after a party has rested, and after in effect closing arguments have been made, the party is saying I think I detect in the judge’s reaction some slight deficiency, at least potentially, in my case and I would like to shore it up by introducing additional evidence. In my view that’s not a practice to be countenanced. I do not ascribe any bad motives to counsel in this case. This was not a case where evidence was held back intentionally and as a tactical matter, and now counsel has second thoughts about it. It’s– it’s just some additional evidence that was always available that counsel in retrospect decides that he wished he would have presented at an earlier time in the case.

You know, rules of court merely provide for only one bite at the apple, that we follow an orderly procedure with the plaintiff’s case, defendant’s case, rebuttal and sur-rebuttal, make your closing arguments, the case is over. It might be a rare circumstance where evidence comes to light which was not previously discoverable which might warrant opening of the record, but this is not such a case. Moreover, it’s not clear that this evidence is dispositive or that it is so self-evident that it doesn’t require additional clarification by testimony or that the plaintiff should not then be entitled itself to adduce additional evidence. For all those reasons I will exercise my discretion under KEEVIT VS. LOYAL PROTECTIVE (phonetic), 64 Super. 537, and MASSACHUSETTS MUTUAL VS. MANSO, 234 N.J.Super. at 266, to exclude this evidence. So the motion is denied.

The judge did not abuse his discretion by refusing to reopen the case and, in effect, resume the trial.


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