Plaintiff filed suit against defendant hospital, a fictitious individual and a fictitious corporate defendant for injuries sustained when he allegedly fell at the hospital.
Plaintiff moves, 25 months after the accident, to file an amended complaint substituting "as additional defendants," in the place of the individual fictitious defendant, Thomas Lovette, Thomas Rush and Jerry Depiano.
The issues are: (1) when plaintiff's complaint names a certain defendant as well as fictitious defendants and plaintiff then learns from the named defendant the identities of the other alleged tortfeasors four months before the running of the statute of limitations, is plaintiff barred from substituting the other tortfeasors for the fictitious defendants; and (2) whether plaintiff may substitute three named defendants for one fictitious defendant.
The court holds that once plaintiff has properly designated fictitious defendants, in accordance with R. 4:26-4, the subsequent expiration of the statute of limitations has no relevancy. All that is required is that plaintiff's attorney proceed diligently
and defendants not be prejudiced. In addition, there is no sound reason or rule that prohibits the substitution of multiple defendants for one fictitious defendant.
The hospital contends that plaintiff's complaint fails in all respects to adequately describe and identify any fictitiously named defendants, as required by R. 4:26-4, and that plaintiff seeks to name three new defendants as party defendants even though the original complaint named only one individual fictitious defendant. Finally, the hospital contends that plaintiff's proposed amended complaint is barred by the statute of limitations, which allegedly expired three weeks before this motion was filed.
Plaintiff has questioned the standing of defendant hospital to oppose this motion since it is not directly affected thereby. It seems ironic that the hospital's attorney objects to the addition of new defendants who might relieve his client of liability in this matter. Normally, of course, a defendant would not raise such an objection. Here, however, defendant hospital and the proposed substituted defendants are insured by the same carrier. Whether they will be represented by the same attorney is irrelevant. Without additional named defendants, the hospital's liability would be limited to $10,000 by virtue of N.J.S.A. 2A:53A-7 et seq. The addition of individually named defendants could increase the carrier's exposure in this case since the individual defendants, if found liable, would not be subject to the statutory limitation of damages. It seems that defense counsel is protecting the interests of his carrier, and sacrificing the interests of Clara Maass, by his objection to the addition of substituted defendants who may relieve the hospital of liability. Normally, this type of motion is made by substituted defendants after the court permits the amendment. However, the court cannot conclude that defendant hospital has no standing; regardless, it prefers to decide this motion on its merits.
This action arises from a fall-down accident that occurred on July 14, 1985 on a stairway at Clara Maass Medical Center (improperly named as Clara Maass Hospital). In the complaint, filed on April 1, 1986, the hospital was the only named defendant, together with fictitious defendants. The complaint alleges that "the Defendants constructed, owned, controlled, designed and maintained a certain stairway at the premises in a negligent manner, causing a dangerous condition to exist thereon."
On February 11, 1987, plaintiff moved to strike the hospital's answer and suppress its defenses as well as to preclude the hospital from raising the defenses set forth in N.J.S.A. 2A:53A-7 and -8 because of its failure to answer interrogatories.
The certification of plaintiff's attorney, in support of that motion, states:
The interrogatories served upon the Defendant sought to elicit names of any individuals who may have been responsible for the maintenance of the stairway. It is extremely important for the Plaintiff to obtain the names of any such individuals who may have been negligent in order to amend his complaint so that plaintiff's damages will not be limited by the provisions of N.J.S.A. 2A:53A-7 and 8. Since the Defendant's failure to answer interrogatories has prevented the Plaintiff from obtaining the information he needs to name the potentially culpable individual defendants and avoid the statutory limitation upon his damages, it is respectfully requested that the Order striking and suppressing the Defendant's answer and defenses specifically preclude the Defendant from raising the limitation on damages set forth in N.J.S.A. 2A:53A-7 and 8.
After the interrogatories were answered and the names of the individuals on duty the day of plaintiff's alleged fall were disclosed to plaintiff's attorney, that motion was withdrawn on February 27, 1987.
After plaintiff's attorney received the answers to interrogatories, he again inquired of defendant's attorney about the maintenance personnel at the hospital. Defendant's attorney responded by letter dated March 18, 1987, stating:
Pursuant to your request for information regarding the maintenance personnel at Clara Maass Medical Center, this is to inform you that no one individual or individuals are assigned to ...