                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3866-18T3

TOYOTA LEASE TRUST,

          Plaintiff-Respondent,

v.

SEAN QUIGLEY,

     Defendant-Appellant.
________________________

                    Argued March 10, 2020 – Decided April 15, 2020

                    Before Judges Fisher and Accurso.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Camden County, Docket No. SC-000200-19.

                    Kari B. Samuels argued the cause for appellant
                    (Goldfein Attorneys At Law, attorneys; Kari B.
                    Samuels, on the brief).

                    Walter F. Kawalec, III, argued the cause for respondent
                    (Marshall Dennehey Warner Coleman & Goggin,
                    attorneys; Walter F. Kawalec, III, on the brief).

PER CURIAM
      In Financial Services Vehicle Trust v. Panter, 458 N.J. Super. 244 (App.

Div. 2019), we held that a claim for "the diminution in value because [a motor

vehicle] bear[s] the 'scarlet letter' of an accident history was cognizable" as an

element of damages. Id. at 252. Such a claim, we observed

             is no more speculative than it is presumable. It is
             merely susceptible to proof. The owner of the claim
             remains obligated to persuade the factfinder with
             competent and admissible evidence that the vehicle's
             value has been decreased by this stigma.

             [Id. at 251.]

We also described other wrinkles that might appear in such a case, id. at 252-

53, for the sake of providing guidance in numerous other similar cases pending

in our courts, id. at 249.

      Plaintiff Toyota Lease Trust brought this action against defendant Sean

Quigley to pursue the same type of damages recognized in Panter. Plaintiff

claimed defendant's negligence caused damage 1 to a 2015 Lexus CT200 Hybrid,

which plaintiff owned but leased out to another. The lessor's accident with

Quigley occurred on May 31, 2016, less than six months after the lease's

inception, when the vehicle had only been driven about 4000 miles.


1
   Defendant stipulated his negligence caused the accident and damage to the
vehicle; he did not stipulate to the amount of damage or plaintiff's entitlement
to the damages sought here.
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                                        2
      The trial took place only a few weeks after our Panter decision. Plaintiff

called only one witness; defendant, none. Plaintiff elicited through its witness

that the vehicle's rear bumper was damaged and replaced; defendant's negligence

also caused some minor paint damage. Those items, however, were not the

damages plaintiff sought. Instead, as in Panter, plaintiff sought to prove that the

vehicle had been devalued by the stigma of having been in an accident. Its

witness was offered and permitted to testify as an expert in vehicle evaluation

and to provide a basis by which the trier of fact could quantify the damage

caused by that stigma.

      Plaintiff's expert witness, who works as a buyer for what he said was the

country's largest wholesale dealer of vehicles, testified that the value of a vehicle

– all other things being equal – is reduced by an accident history. As for the

vehicle in question, the witness used something called Accu-Trade to estimate

the vehicle's value at the time of the accident. He testified that a buyer would

be expected to pay $22,306.56 on the date of the accident for the vehicle if it

had never been in an accident, but $20,573.35 because it was in an accident,

even when repaired to its pre-accident condition. The difference between these

two figures constituted the amount of damages sought by plaintiff.




                                                                             A-3866-18T3
                                         3
      Plaintiff's expert witness was cross-examined by defense counsel, and

then extensively examined by the trial judge. Defense counsel elicited from the

witness that the vehicle was sold at auction by plaintiff in May 2018 – after the

lease term expired and approximately two years after the accident – for $18,500.

Much of defense counsel's examination focused on how that resale may have

been impacted by the accident history. Some of the judge's examination dealt

with his view – as stated in one of his questions – that "the actual owner of this

vehicle would not suffer a loss until it incurred a monetary loss [i.e., on eventual

sale of the vehicle] for the vehicle." The witness continually responded –

correctly – that this question called for a legal conclusion that he was not

prepared to answer. Undeterred, the witness maintained his view that the vehicle

was devalued simply because it carried with it – thanks to defendant's negligence

– an accident history. But he was unable to provide any information about the

condition of the vehicle or whether its value had been reduced or enhanced after

the accident but before resale.

      Once both sides rested and summed up, the judge rendered an oral opinion

in which he described the reasons why he was unpersuaded by the witness's

testimony. For the reasons given, the judge found that plaintiff had not proven

its case and rendered a verdict in defendant's favor.


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                                         4
      Plaintiff appeals, arguing the trial judge: (1) committed "an error of law

when he refused to apply the well-established measure of damages and instead

held that damages should be determined at the time of sale"; (2) erred "when he

failed to . . . inquir[e] [or make a] finding as to whether auto valuation experts

rely upon certain types of data, and again when he ignored the presumption of

reasonable reliance on that data"; and (3) "abused his discretion by stepping into

the shoes of defense counsel and questioning plaintiff's expert as a hostile

witness." We find insufficient merit in these arguments to warrant further

discussion, R. 2:11-3(e)(1)(E), and affirm, adding the following few comments.

      We agree with plaintiff that the judge erred when he said in his oral

decision that the stigma damages recognized in Panter are not "cognizable [until]

the time of the [later] sale" of the vehicle. To be clear, the stigma is inflicted

and the right of the injured party 2 to sue for the resulting damage arises when

the accident history attaches to the vehicle. We would, however, agree with the

trial judge that when – as here – a claim for such damages is sought after the

vehicle has been sold, the factfinder has a right to expect that plaintiff will

provide evidence about that resale because that evidence may impact the



2
  We did not in Panter – and we do not now – decide whether the true owner of
the claim is the lessor or the lessee.
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                                        5
factfinder's view of the expert's assessment. Here, the expert provided only the

date of the sale and the price received; he was unable to inform the factfinder

about the vehicle's condition or provide any other information that might

enlighten the factfinder about the accuracy of the stigma damage the expert

assigned to the vehicle. Because the expert failed to correlate his estimate of

the stigma damage at the time of the accident with the price later paid for the

vehicle, the factfinder here was entitled to reject the expert's conclusions and

estimates.3

      We do not view as fatal the trial judge's incorrect statement suggesting

Panter is inapplicable in the absence of a resale. Indeed, in arguing that the

judge disregarded our prior holding, plaintiff misses the thrust of the trial judge's

ultimate decision, which was simply based on the fact that the judge was



3
   For example, an expert might testify that a vehicle had a value of $20,000
prior to an accident that would be reduced by $1000 because of its accident
history. If persuasive evidence is produced about those conclusions, the
factfinder could conclude that the plaintiff is entitled to $1000. But, if the claim
is not asserted until after the vehicle is sold and assuming the same vehicle sold
a year later for $21,000, can it truly be said that the stigma caused any damage
at all? Without a persuasive explanation for such an outcome, a factfinder would
be entitled to reject the claim of any diminution in value in that instance. To
recover in such a case, the plaintiff would have to offer persuasive evidence that
the stigma still diminished the vehicle's value by testifying – if such a contention
could be supported and maintained – that the vehicle would have sold for
$22,000 but for the accident history.
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                                         6
unpersuaded by plaintiff's expert. The judge stated at the outset of his oral

decision that he had "considered the weight and the persuasiveness of [the

expert's] testimony" and concluded he "d[id] not consider the witness's

testimony to be reliable and worthy of belief." The judge came back to this core

determination time and again throughout his opinion.

      Indeed, the judge was particularly skeptical of the witness's use of "Accu -

Trade" without a persuasive explanation for how this device or formula provided

accurate results or whether the results so produced were "generally relied upon

in the industry." And, as mentioned above, the judge was unwilling to rely on

what this witness had to say because the witness "did not know the history of

the car after May 31, 2016." This is a legitimate concern because, as we have

explained, the eventual resale of the vehicle, even years later, might shed light

on whether or to what extent the stigma impacted the property's value. We agree

with plaintiff – as we recognized in Panter – that the damage was done when an

accident history became attached to this vehicle. And that history attached when

defendant's negligence caused the accident. That damage – despite the judge's

mistaken comments – immediately ripened into a cognizable claim whether the




                                                                          A-3866-18T3
                                        7
owner of the claim made a choice to keep or sell the vehicle. 4 But, having said

that, we also agree with the trial judge that when a claim is asserted after a

vehicle's sale, the amount received, the condition of the vehicle when the sale

occurred, and other relevant circumstances about the vehicle's history after the

accident may illuminate for the factfinder the way toward fixing – or rejecting

– an award for the stigma damage.        Because the expert could not provide

sufficient evidence about the vehicle at the time of resale, the judge was entitled

to reject the testimony as unreliable. Indeed, in the very context in which the

judge made his erroneous statement about Panter's application in the absence of

a resale – which was irrelevant since here there was a resale – the judge

expressed his determination that the expert was unreliable:

            It seems to me, and the [c]ourt so finds that if there is
            any cognizable damage, it would be at the time of the
            sale, taking into account the entire history of the
            vehicle, normal depreciation, and the like. Therefore, I
            find that the offer of evidence in this case, I understand
            what the burden of proof is, and I find that the plaintiff
            has not met the burden of proof by a preponderance of
            the evidence. I find that the testimony given was not


4
  For example, the Supreme Court recently considered the manner in which a
landowner may prove damages caused by the loss of trees and foliage due to
another's trespass. Nowhere in either the majority or dissenting opinion was
there even the remotest suggestion that a diminution in the property's value
caused by the trespass could not be realized until the plaintiffs sold their
property. See Kornbleuth v. Westover, __ N.J. __ (2020).
                                                                           A-3866-18T3
                                        8
            persuasive, was not reliable, was not credible.      No
            cause for defendant.

      The judge's assessment of the reliability and credibility of the expert's

testimony is entitled to our deference. Rova Farms Resort, Inc. v. Inv'rs Ins.

Co., 65 N.J. 474, 484 (1974). And plaintiff has failed to present us with a

principled reason for intervening or second-guessing the trial judge's fact

findings.

      We lastly reject plaintiff's argument that, because he allowed the witness

to testify as an expert, the judge was obligated to rely on that testimony. See

Ryan v. KDI Sylvan Pools, Inc., 121 N.J. 276, 284-85 (1990) (recognizing the

difference between the admissibility and reliability of expert testimony). And

we reject the argument that the judge overstepped his role when questioning the

witness. Having closely examined the trial transcript, it is clear the judge was

simply attempting to elicit, as was his right, material facts from the witness so

as to properly understand and weigh the evidence being offered. See State v.

Medina, 349 N.J. Super. 108, 131 (App. Div. 2002).

      Affirmed.




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