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Covino v. Peck

Decided: June 14, 1989.

SALVATORE COVINO, PLAINTIFF-APPELLANT,
v.
WAYNE J. PECK, DEFENDANT-RESPONDENT



On appeal from Superior Court, Law Division, Middlesex County.

Deighan and D'Annunzio. The opinion of the court was delivered by Deighan, J.A.D.

Deighan

Plaintiff Salvatore Covino appeals from an order entered by the Law Division granting summary judgment to defendant Wayne J. Peck, dismissing all claims with prejudice, and denying plaintiff's cross-motion for summary judgment.

Defendant, an attorney, had filed a complaint on behalf of plaintiff against 11 manufacturers and distributors of asbestos products. The complaint was dismissed with prejudice on the basis that the claim was barred by the New Jersey Statute of Limitations for personal injuries. N.J.S.A. 2A:14-1 and 2A:14-2. Plaintiff then instituted suit against defendant for malpractice and also filed a products liability claim against two asbestos manufacturers. Plaintiff's motion for summary judgment on the basis that defendant was negligent as a matter of law was granted. However, summary judgment was then entered against plaintiff on the ground that he could not identify the particular manufacturers or distributors of the asbestos products to which he had been exposed. Since plaintiff was unable to establish a cause of action against those two manufacturers or distributors, the entire action was dismissed.

On a prior appeal to this court from the dismissal of the complaint, we affirmed, as a matter of law, the granting of summary judgment against defendant for failure to file the complaint within the period of time under the statute of limitations. However, we reversed the dismissal of the complaint and held that as to the identification of the manufacturers or distributors of asbestos, there were sufficient facts to support the claim and that the proffered evidence was sufficient to raise genuine factual issues.*fn1

Upon remand, defendant moved for summary judgment to dismiss the complaint on the ground that the claim was barred

because plaintiff failed to mitigate damages. Plaintiff filed a cross-motion for summary judgment to strike, among other things, the defenses of mitigation of damages and negligence of plaintiff. As noted, on May 27, 1988, after argument, the trial judge granted summary judgment in favor of defendant and dismissed the claims of plaintiff with prejudice. At the same time, the trial judge denied plaintiff's cross-motion for summary judgment.

During a deposition, plaintiff testified that after his products liability claim was dismissed as a result of defendant's failure to timely file the complaint, he was advised by someone employed by co-counsel for a defendant in the underlying litigation that he could still institute a lawsuit in Mississippi, which has a six-year statute of limitation. He was also advised that he could sue defendant for legal malpractice. He decided not to sue in Mississippi because it would mean spending weeks there away from his job and home and he was the only person who could keep the household together. Instead, he chose to pursue this claim against defendant for legal malpractice.

The trial judge found that plaintiff was informed, either by an attorney or by a paralegal, that he had a right to sue in Mississippi on the substantive claim and a right to sue his former attorney for legal malpractice. Having concluded that plaintiff did have a viable cause of action in Mississippi, the trial judge held:

I feel in weighing all the factors, the burden of going to Mississippi and the obligation to mitigate damages, that equates weight in favor of the defendant that plaintiff should have instituted his action in Mississippi. There were additional expenses that arose out of that.

Accordingly, the complaint against defendant was dismissed for plaintiff's failure to mitigate damages by instituting an action against the asbestos manufacturers and distributors in Mississippi.

On appeal, plaintiff contends that the trial court erred in dismissing his complaint, defendant is ...


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