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Younger v. Kracke

Decided: August 31, 1989.

LULA B. YOUNGER AND SHIRLEY SCOTT, PLAINTIFFS,
v.
GEORGE F. KRACKE, JANE DOE, A FICTITIOUS NAME, AND JOHN DOE, A FICTITIOUS NAME, DEFENDANTS. GEORGE F. KRACKE, THIRD-PARTY PLAINTIFF, V. MARION S. DANIELS AND JOSEPH T. DANIELS, THIRD-PARTY DEFENDANTS



Villanueva, J.s.c.

VILLANUEVA

OPINION

This is a negligence action arising out of a three-car automobile accident. Despite the fact that a police report was prepared, the plaintiffs' attorney specifically identified only one driver as a defendant and used "John Doe" and/or "Jane Doe", fictitious names for the other driver, when he filed the complaint on the last day before the statute of limitations would have expired.

The issue is whether the plaintiff, who used a fictitious name for one of the defendant drivers involved in an accident, may substitute the true name of the driver after the statute of limitations has expired when the name of that driver and the name of his insurance company is contained in the police report prepared on the day of the accident.

The court holds that plaintiffs' failure to obtain a police report, which would have disclosed the name, address and insurance company of all of the drivers, constitutes a lack of diligence which precludes his use of the fictitious name procedure authorized by Rule 4:26-4.

According to the police report, on December 11, 1985, Marion and Joseph Daniels were traveling north on the Garden State Parkway when they experienced a blowout of their right rear tire. The driver, Marion Daniels, lost control of her vehicle, struck a parked tow truck, continued north, traversing the right

shoulder, and ultimately stopped, facing south. Plaintiff Shirley Scott was a passenger in a vehicle operated by plaintiff Lula B. Younger, which was traveling directly behind the Daniels' vehicle. When the Daniels' vehicle went out of control, Younger stopped her vehicle and was struck in the rear by defendant Kracke. The Daniels' vehicle never came into contact with either the Younger vehicle or the one operated by Kracke.

On December 11, 1987, exactly two years after the accident occurred, the plaintiffs filed a complaint naming as defendants, George F. Kracke, and Jane Doe and John Doe, fictitious names. For some unexplained reason, defendant Kracke did not answer the complaint until January 18, 1989.

On March 13, 1989, defendant Kracke notified plaintiffs' attorney that he would apply to the court on March 31, 1989 to file a third-party complaint against Marion S. Daniels and Joseph T. Daniels, seeking contribution in accordance with the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1 et seq. The motion was granted.

It was not until August 4, 1989, over three and one-half years after the original complaint was filed, that the plaintiffs' attorney sought to amend the complaint to substitute as direct defendants, Marion S. Daniels and Joseph T. Daniels, for the originally named Jane Doe and John Doe, fictitious names.

The reason that plaintiffs' attorney gives for making the motion at this time is that interviews of the plaintiffs revealed that there was another car in the accident which forms the basis of this suit. He asserts that at the time the complaint was filed, he was unable to ascertain the identity of the person operating the other vehicle and therefore used fictitious names. He states that on May 24, 1989, upon receipt of answers to interrogatories propounded to the third-party defendants, Marion S. Daniels and Joseph Daniels, it was disclosed ...


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