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Viviano v. CBS Inc.

Decided: October 1, 1991.


On appeal from the Superior Court of New Jersey, Law Division, Gloucester County.

Petrella, Muir, and Brochin. The opinion of this court was delivered by Brochin, J.A.D.


In this case, we hold that a corporate employer and its supervisory employees who fraudulently concealed information relevant to another employee's suit against third parties for work-related injuries are answerable in damages to the injured employee.

Plaintiff Lucrezia Viviano was an employee of defendant CBS, Inc. She operated a machine that worked like a giant waffle iron, pressing out plastic phonograph records. On December 1, 1978, the machine malfunctioned, catching her left hand between its upper and lower plates. Before her hand was released, the heat and pressure had destroyed three and a half of her fingers.

On July 2, 1979, plaintiff filed suit to recover for her injuries, initially naming only fictional parties as defendants. See R. 4:26-4. On September 2, 1980, she filed an amended complaint which deleted all of the fictional defendants and substituted a real party whom she alleged had manufactured the press. On September 10, 1981, after having filed three additional amended complaints, each one adding one or more other companies whom she alleged had sold or manufactured other components responsible for the malfunctioning of the press, plaintiff again amended her complaint to add CBS as a defendant. This fourth amended complaint asserted various personal injury claims against CBS and, in addition, included a count in the nature of a bill of discovery. In that count, plaintiff alleged that CBS had unreasonably impeded her discovery and had failed to furnish her with relevant information despite her proper demand.

On December 21, 1981, the trial court dismissed the counts of plaintiff's amended complaint which charged CBS with liability for her personal injuries. The court held that those counts were barred by the Workers' Compensation Act. See N.J.S.A. 34:15-1; Wilson v. Faull, 27 N.J. 105, 116, 141 A.2d 768 (1958). The count in the nature of a bill of discovery remained pending.

In the meanwhile, CBS had re-hired plaintiff as a night security guard at the plant where she had been injured. During the latter part of May 1982, she entered defendant Nelson E. Horner's office. Horner was director of employee relations at the plant. Her personnel file was lying on his desk. In the file, she discovered a previously undisclosed memorandum which Mr. Ronald Brandt, the general foreman responsible for all shifts in the press room, had written three days after her injury. She removed the memorandum from the file and delivered it to her attorneys. The memorandum described the results of Mr. Brandt's investigation and contained the following paragraph:

We found a problem on the old Taylor Timers, we are in the process of changing. If the microswitch sticks, the press will reset itself and go back in and through a cycle. I questioned the electricians on a safety device. We are

in the process of replacing the Taylor timers with our electronic timers that have an additional safety built in.

A few days later, an attorney for CBS handed a copy of the Brandt memorandum to plaintiff's attorney. CBS did not indicate it knew that plaintiff had already discovered the memorandum.

On the basis of the Brandt memorandum, plaintiff prepared a sixth amended complaint. In it, she named Sybron, a corporation, as a defendant. Sybron was the successor by merger to the company that had manufactured the Taylor Timers. On July 16, 1982, the court permitted plaintiff to file this amended complaint and to serve it on Sybron.*fn1 By an order also dated July 16, 1982, the court dismissed with prejudice the count of plaintiff's fourth amended complaint that asserted a claim against CBS in the nature of a bill of discovery. That dismissal order became effective September 17, 1982. With the dismissal of the discovery count, no further claim for relief remained pending against CBS.

Thereafter, Sybron moved for summary judgment dismissing the sixth amended complaint because it had not been filed within the two-year period of limitations. See N.J.S.A. 2A:14-2. The trial court denied the motion by an order entered November 9, 1983. Sybron took an interlocutory appeal to this court. In an unpublished opinion filed April 12, 1984, we reversed, with one judge dissenting. We held that the discovery rule did not apply and that the fictitious party practice, R. 4:26-4, did not toll the statute of limitations because plaintiff had not retained any fictitious defendants after she had amended her complaint for the first time in July 1980. Plaintiff appealed our decision to the Supreme Court.

On June 4, 1984, shortly after we issued our opinion dismissing plaintiff's amended complaint against Sybron, she commenced the present suit. In this suit she charges that CBS and

certain of its supervisory employees delayed, hampered, and interfered with her personal injury action by fraudulently concealing and misrepresenting relevant facts which CBS was obligated to divulge in compliance with plaintiff's discovery demands. Defendants moved to dismiss on grounds which included the entire controversy doctrine. Before that motion was heard, plaintiff, without opposition, obtained an order transferring the case to the inactive list until the Supreme Court decided her appeal.

On January 28, 1986, the Supreme Court reversed this court's decision in plaintiff's personal injury suit against Sybron. See Viviano v. CBS, Inc., 101 N.J. 538, 503 A.2d 296 (1986). The Court agreed that the discovery rule was inapplicable and that R. 4:26-4 had not been utilized correctly. But it relaxed the latter rule and remanded the case for trial because plaintiff's misapplication of the fictitious ...

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