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Ragan v. Dukes

Decided: January 17, 1992.

LEWIS J. RAGAN AND LINDA RAGAN, PLAINTIFFS-APPELLANTS,
v.
GEORGE K. DUKES AND ROYAL CAKE COMPANY, INC., DEFENDANTS-RESPONDENTS



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

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

Michels

MICHELS, P.J.A.D.

Plaintiffs Lewis J. Ragan and Linda Ragan appeal from a final judgment of the Law Division that dismissed their complaint against defendants George K. Dukes (Dukes) and Royal Cake Company, Inc., in this personal injury negligence action on the ground that the action was barred by our two-year statute of limitations.

On September 2, 1987, Lewis J. Ragan, a citizen and resident of the State of Rhode Island, was injured in a multi-vehicle accident on the New Jersey Turnpike. He was driving a tractor trailer and was hit in the rear by a truck driven by Dukes, a citizen and resident of the State of North Carolina. The truck driven by Dukes was owned and operated by Royal Cake Company, Inc., a corporation of the State of North Carolina. On January 14, 1991, plaintiffs instituted this action against Dukes and Royal Cake Company, Inc., to recover damages for the personal injuries he sustained in the accident. Linda Ragan sued pro quod for her loss of consortium. Defendants immediately moved to dismiss the action on the ground that it was barred by the two-year statute of limitations. Plaintiffs opposed the motion, arguing that the statute was tolled by the provisions of N.J.S.A. 2A:14-22. Relying on Coons v. American Honda Motor Co. (Coons I), 94 N.J. 307, 463 A.2d 921 (1983), modified 96 N.J. 419, 476 A.2d 763 (1984), cert. denied, 469 U.S. 1123, 105 S. Ct. 808, 83 L. Ed. 2d 800 (1985), which held the pre-amended version of N.J.S.A. 2A:14-22 unconstitutional, the trial court granted the motion. This appeal followed. Although we disagree with the trial court's determination that Coons I was applicable notwithstanding the 1984 amendment to the tolling statute, N.J.S.A. 2A:14-22, we are satisfied that the action is time-barred by the two-year statute of limitations, and, therefore, affirm.

In New Jersey there is a two-year statute of limitations for personal injury actions. N.J.S.A. 2A:14-2 provides:

Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued.

The statute of limitations was, however, tolled for any period that a person or corporation was not either a resident or represented in the State. N.J.S.A. 2A:14-22, (L. 1984, c. 131, § 1), the tolling statute, as amended, which became effective on August 23, 1984, provides:

Nonresidence of person liable

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 so 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.

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. [(Footnote omitted)].

The pivotal issue before us here is not whether the amendment is unconstitutional, but rather at what point in time our courts should recognize the amended tolling statute, N.J.S.A. 2A:14-22, as being unconstitutional, and, thus commence the running of the statute of limitations against plaintiffs' action. In Bendix Autolite Corp. v. Midwesco Enterprises, 486 U.S. 888, 108 S. Ct. 2218, 100 L. Ed. 2d 896 (1988), the United States Supreme Court considered the impact of the Commerce Clause upon the tolling provisions of an Ohio statute, similar to that of N.J.S.A. 2A:14-22. The Supreme Court described the Ohio tolling provision as follows:

Ohio recognizes a 4-year statute of limitations in actions for breach of contract or fraud. The statute is tolled, however, for any period that a person or corporation is not "present" in the State. To be present in Ohio, a foreign corporation must appoint an agent for service of process, which operates as consent to the general jurisdiction of the Ohio courts. Applying well-settled constitutional principles, we find the Ohio statute that suspends limitations protection ...


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