[127 NJSuper Page 395] This is a motion by the defendant New England Paper Tube Co., Inc., for summary judgment based upon the expiration of the two-year statute of limitations, N.J.S.A. 2A:14-2.
On February 17, 1969 plaintiff Karol Lackovic was the operator of a motor vehicle involved in an accident in West New York, New Jersey, with a vehicle owned by defendant New England Paper Tube Co., Inc., and operated by defendant D. F. Dubois. On March 6, 1973, plaintiff Karol Lackovic brought an action for recovery of damages for personal injuries, and his wife Leopoldina brought an action per quod. Suit was recently instituted against their first attorney for malpractice and that suit has heretofore been consolidated with the action on the merits.
Plaintiffs are residents of New Jersey. New England Paper Tube Co., Inc., is a Rhode Island corporation not licensed to do business in New Jersey, and Dubois is a resident of North Smithfield, Rhode Island.
New England Paper Tube Co., Inc., contends that the two-year period in N.J.S.A. 2A:14-2 has expired and that the tolling provisions of N.J.S.A. 2A:14-22 are inapplicable. The questioned tolling statute, as amended, states:
If any person against whom there is any of the causes of action specified in sections 2A:14-1 to 2A:14-5 and 2A:14-8, or if any surety against whom there is a cause of action specified in any of the sections of article 2 of this chapter, is not a resident of this state when such cause of action accrues, or removes from this state after the accrual thereof and before the expiration of the times limited in said sections, or if any corporation or corporate surety not organized under the laws of this state, against whom there is such a cause of action, is not represented in this state by any person or officer upon whom summons or other original process may be served, when such cause of action accrues or at any time before the expiration of the times so limited, the time or times during which such person or surety is not residing within this state or such corporation or corporate surety is not so represented within this state shall not be computed as part of the periods of time within which such an action is required to be commenced by the section. The person entitled to any such action may commence the same after the accrual of the cause therefor, within the period of time limited therefor by said section, exclusive of such time or times of nonresidence or nonrepresentation.
New England Paper Tube Co., Inc.'s motion relies upon the case of Ferraro v. Ferro Trucking Co., 72 N.J. Super. 519
(Law Div. 1962). Ferraro held that where N.J.S.A. 39:7-2 designates the Director of Motor Vehicles as agent for the reception of process, a foreign corporation is represented within this State by a person upon whom summons or original process may be served. Therefore, the tolling provisions of N.J.S.A. 2A:14-22 should be inapplicable.
To the contrary is Whalen v. Young, 28 N.J. Super. 543 (Law Div. 1953), which held that a foreign corporation is not "represented" within the meaning of the statute merely because it is amenable to service through the Director of Motor Vehicles.
In Lemke v. Bailey, 41 N.J. 295 (1963), after discussing the legislative and judicial history, the Supreme Court stated that they would "express no opinion on the contradictory results of Whalen and Ferraro." Significantly, however, the court noted that "on at least two occasions the courts of this State have held directly, and once by way of dictum, that the tolling of the statute of limitations, as provided in N.J.S.A. 2A:14-22, is not affected by the fact that an individual nonresident defendant can be served under N.J.S.A. 39:7-2." 41 N.J. 295 at 298. In addition to Whalen, the court referred to Gotheiner v. Lenihan, 20 N.J. Misc. 119, 25 A.2d 430 (Sup. Ct. 1942), which similarly held that the two-year statute was tolled.
In Ferraro the court distinguished the holdings in Whalen and Gotheiner upon the basis that the latter opinions concerned an individual nonresident motorist, while Ferraro dealt with a nonresident corporate defendant. This is a distinction without a difference and is illogical. The reasoning of the court in Ferraro, if it were applicable, should and would be equally applicable to individual defendants as it would be to corporate defendants. Individuals are as amenable to service under N.J.S.A. 39:7-2 as are corporations. Plaintiff did, in fact, attempt to make service (after four years) upon defendant Dubois ...