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Schwartz v. U.S. Rubber Corp.

Decided: January 7, 1971.

RYAN SCHWARTZ, LINDA SCHWARTZ, RANDY SCHWARTZ, ROGER SCHWARTZ, JR., INFANTS BY THEIR GUARDIAN AD LITEM, ROGER SCHWARTZ, CATHERINE SCHWARTZ, AND ROGER SCHWARTZ, INDIVIDUALLY, PLAINTIFFS,
v.
U.S. RUBBER CORP., A CORPORATION; U.S. ROYAL TIRE; GENERAL MOTORS CORP., A CORPORATION; A. C. CHEVROLET DISTRIBUTORS; CATHERINE SCHWARTZ AND ROGER SCHWARTZ (AS TO CLAIMS ARISING OUT OF INFANT'S INJURIES ONLY), DEFENDANTS



Meanor, J.c.c. (temporarily assigned).

Meanor

This case presents questions ancillary to France v. A.P.A. Transport Corp. , 56 N.J. 500 (1970) which, for automobile cases, overruled parent-child tort immunity.

On April 1, 1967 the Schwartz family was traveling through Iowa in a 1966 Chevrolet purchased by plaintiff

Roger Schwartz from defendant A. C. Chevrolet Distributors and registered in his name. His wife Catherine was driving, and Roger and their four children were passengers. The vehicle had been manufactured by defendant General Motors and was equipped with tires made by defendant Uniroyal, Inc. Assertedly because a defectively manufactured tire blew, the car went off the road, injuring all occupants. Prior to the decision in France the four injured Schwartz children and their parents brought suit against A. C. Chevrolet Distributors, General Motors and Uniroyal seeking damages arising out of their personal injuries.

Following France the pleadings were amended. The original product liability claims were continued. In addition, Roger Schwartz, as guardian ad litem for his children, sues himself and his wife for damages arising out of their personal injuries. Although the second amended complaint is somewhat ambiguous on this score, it can be construed as stating a claim per quod by Roger against Catherine for damages arising out of the children's injuries. Because of the bar of our two-year statute of limitations, N.J.S.A. 2A:14-2, no claims have been asserted by either parent against the other seeking to recover damages on account of their personal injuries.

Broadly stated claims for contribution have been filed by all defendants except the Schwartzes. The product liability defendants assert that Catherine Schwartz was negligent in her operation of the vehicle and that Roger was negligent in his maintenance of it. The children's claims against their parents are based upon the same allegations.

Insurance counsel for the Schwartzes have now moved to strike the second amended complaint as to them on the theory that France is prospective only and thus is not applicable to claims arising before the date upon which that decision was announced.

Two recent Law Division cases have approached the problem. Darrow v. Hanover Tp. , 112 N.J. Super. 396 (Law Div. November 25, 1970), held that Immer v. Risko , 56 N.J. 482

(1970), which, for automobile cases, overruled interspousal tort immunity, was retrospective in application. Franco v. Davis , 112 N.J. Super. 496 (Law Div. December 9, 1970), in a considered dictum indicated that France should be prospective only.

Retroactive application of France would permit assertion of child tort claims against parents in cases where the child has not reached his twenty-third birthday. This is because our two-year personal injury statute of limitations, N.J.S.A. 2A:14-2, is suspended during infancy and does not begin to run until that incapacity is removed by reaching majority. N.J.S.A. 2A:14-21. Obviously the resurrection of such stale claims presents problems of enormous practical difficulty.

No one doubts that the prevalence of automobile liability insurance has been the major impetus to this change in the law. Immer, supra , 56 N.J. at 489. Yet the decision is not restricted in application to cases where insurance is present and to the liability limit available. One of the first considerations of any litigant defending a liability case is to notify his insurance carrier so that its contractual obligation to defend may be honored. One difficulty that immediately arises is that with regard to old claims the identity of the carrier at the time of accident may be unknown and unknowable. If the identity of the ...


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