On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Petrella, Gaynor and Scalera. The opinion of the court was delivered by Scalera, J.A.D.
[213 NJSuper Page 251] Plaintiff appeals from an order of the trial court dismissing her complaint seeking to recover damages for personal injuries.
We reverse and remand for a plenary hearing on the underlying motion to dismiss.
On March 16, 1984, the plaintiff, Ethel Richardson, was riding as a passenger in an automobile being driven by her husband, defendant Norris W. Richardson. That vehicle collided with a vehicle being operated by defendant Jesse Kulick and owned by defendant Garden State Lumber Products. As a result of the accident both Mr. and Mrs. Richardson suffered personal injuries.
Mr. Richardson instituted suit against Kulick and Garden State on October 11, 1984. He was represented by the law firm of Coredemus and Coredemus which also joined the wife as a party plaintiff for the purpose of recovery of her consortium or "per quod" claim only. An answer to the complaint was filed by the law firm of DiRienzo and Ruotolo, at the direction of the insurance carrier for Kulick and Garden State. During the course of deposition proceedings defense counsel was specifically informed that Mrs. Richardson had suffered personal injuries in the same accident and, that she was represented by attorney Ronald Spevack "in connection with that."
Eventually the suit instituted by Coredemus and Coredemus to recover for Mr. Richardson's personal injuries and Mrs. Richardson's per quod claim was settled. A release prepared in connection with that disposition dated June 20, 1985, specified that Mrs. Richardson, "joins in the execution of this release solely to release her per quod claims."
On January 13, 1986 attorney Ronald Spevack instituted the instant action on behalf of Mrs. Ethel Richardson and against Kulick, Garden State and her husband to recover for the personal injuries she had suffered in the accident.*fn1 Again, DiRienzo and Ruotolo filed an answer on behalf of Kulick and Garden State. Shortly following, these defendants moved to
dismiss Mrs. Richardson's complaint based on her failure to comply with the provisions of R. 4:28-3(b). A certification in opposition was filed on her behalf which averred only conclusions of law. The trial judge decided the motion without hearing any testimony or oral argument and granted a dismissal of the complaint, ostensibly against all the defendants. Cf. R. 1:6-2.
R. 4:28-3 provides as follows:
Claims by or against spouse.
(a) Generally. Claims by or against a husband and wife may be joined with claims by or against ...