On appeal from Superior Court of New Jersey, Law Division, Hudson County.
Pressler, Dreier and Gruccio. The opinion of the court was delivered by Dreier, J.A.D.
Plaintiffs have appealed from a summary judgment dismissing their complaint against defendant insurance companies on statute of limitation grounds. The dismissed complaint had been filed 26 months after plaintiffs' accident.
Plaintiff Ryszard Rutkowski was injured when his right hand was caught in an unguarded rolling mill, resulting in severe permanent injuries. Plaintiffs initially had filed a timely complaint naming both specific and "John Doe" defendants as being "the designers of, manufacturer of, seller of, distributor of, repairer of, modifier and/or renovator of, or . . . otherwise responsible for" the machine that injured plaintiff Ryszard Rutkowski. Defendants Liberty Mutual Insurance Company and American Motorists Insurance Company are successive workers' compensation insurers of plaintiff's employer. Plaintiff contended in the dismissed complaint that defendants' negligence in the performance of safety and engineering inspections and in the furnishing of loss control services to plaintiff's employer was a partial cause of his injury. Shortly after the filing of the new complaint, plaintiffs moved for its consolidation with the previously-filed action, but this motion was denied. Defendants thereafter were granted summary judgment as noted above, and this appeal ensued.
In their appellate briefs the parties focus solely on the application of the discovery rule as authorization for the late filing of this complaint. Between the time of the filing of the briefs and oral argument, however, the Supreme Court decided Viviano v. CBS, Inc., 101 N.J. 538 (1986). At oral argument we discussed with counsel the issue of whether under the principles of Viviano the original "John Doe" designation in the parallel suit was sufficient to have covered the defendants
in this action. We established a supplemental briefing schedule so that counsel could meet this issue. It appeared to us that if defendants could have been added to the timely-filed initial action, with plaintiffs' claims relating back under R. 4:26-4 to the initial filing of that matter, the policies underlying the statute of limitations might not have justified dismissal of this parallel action.*fn1
We will approach this matter as if plaintiffs had made an application to add the insurance companies as defendants in the earlier-filed action.*fn2 As noted earlier, both the named and fictitious defendants were alleged to be those who had designed, manufactured, sold, distributed, repaired, modified, renovated, or were "otherwise responsible" for the allegedly defective machine. We cannot imagine that this quoted phrase would have indicated to even the most thorough reader that plaintiffs intended to make a claim for negligent safety inspections. In fact, plaintiffs had dealt with defendant Liberty
Mutual Insurance Company, which allegedly performed the inspections, since before the inception of the initial action without thought on the part of either party that they were potential adversaries. Only after plaintiffs' belated discovery of the insurers' role as safety consultants did this theory of liability emerge.
In any action, irrespective of the amount in controversy, other than an action governed by R. 4:4-5 (affecting specific property or a res), if the defendant's true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient to identify him. Plaintiff shall on motion, prior to judgment, amend his complaint to state defendant's true name, such motion to be accompanied by his affidavit stating the manner in which he obtained that information. If, however, defendant acknowledges his true name by written appearance or orally ...