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Frivolous Lawsuit Sanctions Affirmed Against Pro Se Plaintiff in Auto Case
New Jersey Law Journal
August 21, 2009
A pro se litigant was properly sanctioned to the tune of $4,237 for pursuing court claims over a garden variety car accident rather than just having his carrier pay for repairs, a New Jersey state appeals court says.
Ruling in two consolidated cases on Wednesday, the Appellate Division said plaintiff Michael Bandler "inexplicably paid for the loss himself, and then embarked on a pro se campaign of litigation that has lasted nearly seven years [and] needlessly consumed a large amount of judicial resources."
The history of the litigation in Bandler v. Progressive Specialty Ins. Co., A-3953/0197-07, dates to Aug. 10, 2003, when Bandler's daughter Doree was involved in a car accident. There were no bodily injuries but Bandler's car sustained about $2,500 in damages.
The other driver, Bertha Klein, filed a claim with her own carrier, New Jersey Manufacturer's Ins. Co., to pay for her repairs. But Bandler, rather than filing a claim with his insurer, Progressive Specialty Ins. Co., paid to have his car repaired out of pocket.
In January 2004, Bandler and his daughter sued Klein and NJM in Essex County seeking reimbursement for the repairs and the cost of a car rental. Superior Court Judge Theodore Winard granted NJM's motion for summary judgment, finding there was no privity of contract between Bandler and NJM.
NJM then moved for inter-company arbitration, demanding that Progressive reimburse it for the $2,182 it spent getting Klein's car repaired. During this time, Bandler unsuccessfully sought to intervene and to prevent the case from being arbitrated. Judge Sebastian Lombardi denied that motion, saying that neither NJM nor Progressive were parties to the suit against Klein.
Klein died in November 2004, but Bandler continued his claim against the estate. A year after Klein died, though, he filed a separate claim in Hudson County Superior Court against Progressive, again demanding an injunction against the arbitration, alleging that NJM violated the entire controversy doctrine by filing the arbitration request, asking for an order requiring Progressive to defend him in the arbitration hearing and seeking indemnification from Progressive for any damages he might have to pay.
Judge Marie Simonelli, now an Appellate Division judge, dismissed that claim on summary judgment in 2006. Bandler then began the process of appealing Simonelli's ruling.
In 2007, Bandler's case against Klein went to trial in Essex County, with the jury finding Doree Bandler 75 percent negligent and Klein 25 percent at fault. Bandler said he should have had liability assigned to him as well because the jury would have found him to be less at fault than Klein and, because of comparative negligence, he would have been able to collect from her estate. Judge F. Michael Giles rejected that argument.
On April 2 and April 5, 2007, Progressive's attorney told Bandler he would seek sanctions under the Frivolous Lawsuit Statute, N.J.S.A. 2A:15-59.1, and R. 1:4-8 because of the complaint that had been filed in Hudson County and not withdrawn.
Giles ordered sanctions of $4,237.50, rejecting Bandler's claim that under the statute's "safe harbor" provision he had 28 days to withdraw the claim. Bandler had plenty of time to realize the frivolous nature of the claim before Progressive sought sanctions, Giles said.
On Wednesday, Appellate Division Judges Jose Fuentes, William Gilroy and Amy Piro Chambers said the sanctions were properly awarded.
Progressive's lawyer, Keith Murphy, says the ruling sends a clear signal to pro se litigants that they can and will be sanctioned for filing frivolous lawsuits. "That's the most salient point," says Murphy, of Edison, N.J.'s Methfessel & Werbel. "Here we had a plaintiff who was holding parties hostage for years."
The Klein estate's attorney, James Connell, of Fairfield, N.J.'s Dwyer Connell & Lisbona, did not return a reporter's call.
