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Difalco v. Subaru of America Inc.

Decided: December 4, 1990.

CHERYL A. DIFALCO, PLAINTIFF-RESPONDENT,
v.
SUBARU OF AMERICA, INC., FUJI HEAVY INDUSTRIES, LTD., AND TAKATA CORPORATION, DEFENDANTS-APPELLANTS



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

Antell, O'Brien and Scalera. The opinion of the court was delivered by Antell, P.J.A.D.

Antell

This appeal challenges an interlocutory order denying the motion of defendant Takata Corporation (hereinafter "Takata") for summary judgment under the statute of limitations, N.J.S.A. 2A:14-2, and sustaining the constitutionality of New Jersey's tolling statute, N.J.S.A. 2A:14-22. Plaintiff does not appear in defense of this appeal, and the statute's constitutionality is defended by the Attorney General.

Plaintiff was injured in an automobile accident on May 2, 1987. She attributes her injury, at least in part, to the fact that her automobile's seatbelt broke. The car was a Subaru, designed by Fuji Heavy Industries, Ltd. (hereinafter "Fuji"), and on April 7, 1988, she filed this personal injury/products liability suit against defendants Subaru and Fuji. By amended complaint dated October 5, 1989, she joined defendant Takata

Corporation, the Japanese manufacturer of the seatbelt. On May 25, 1990, Takata moved for summary judgment on the ground that the amended complaint had been filed outside the two-year period for bringing personal injury actions limited by N.J.S.A. 2A:14-2. Because Takata is a non-resident, foreign corporation, it also challenged the constitutionality of the tolling provision of the statute of limitations applicable to non-residents. On the ground that the statute of limitations had been tolled, the Law Division denied the motion for summary judgment and concluded that the tolling provision was constitutional. Defendant Takata now appeals.

Until 1984, N.J.S.A. 2A:14-22 provided:

If any person against whom there is any of the causes of action specified in sections 2A:14-1 to 2A:14-5 and 2A:14-8, or if any surety against whom there is a cause of action specified in any of the sections of article 2 of this chapter, is not a resident of this State when such cause of action accrues, or removes from this State after the accrual thereof and before the expiration of the times limited in said sections, or if any corporation or corporate surety not organized under the laws of this State, against whom there is such a cause of action, is not represented in this State by any person or officer upon whom summons or other original process may be served, when such cause of action accrues or at any time before the expiration of the times so limited, the time or times during which such person or surety is not residing within this State or such corporation or corporate surety is not represented within this State shall not be computed as part of the periods of time within which such an action is required to be commenced by the section. The person entitled to any such action may commence the same after the accrual of the cause therefor, within the period of time limited therefor by said section, exclusive of such time or times of nonresidence or nonrepresentation.

In Coons v. American Honda Motor Co., 94 N.J. 307, 463 A.2d 921 (1983) (" Coons I "), the Supreme Court invalidated the foregoing statute on the ground that, as a "forced-licensure" provision it unduly burdened interstate commerce and therefore violated the commerce clause of the Constitution of the United States, art. I, ยง 8, cl. 3. It based its forced-licensure conclusion upon the fact that because the statute did not specify the means by which a non-resident could secure representation for service of process it could do so only by registering to do business in this state.

To correct the constitutional deficiency found by Coons I, the Legislature amended the tolling statute effective August 23, 1984, by the following language, to allow non-resident corporations to designate a representative to accept service of process without registering to do business:

A corporation shall be deemed represented for purposes of this section if the corporation has filed with the Secretary of State a notice designating a representative to accept service of process.

In Bendix Corp. v. Midwesco Enterprises, 486 U.S. 888, 108 S. Ct. 2218, 100 L. Ed. 2d 896 (1988), the Supreme Court of the United States considered the effect of the commerce clause upon an Ohio statute of limitations containing a tolling provision similar to that herein, as ...


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