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Burrell v. Quaranta

Decided: September 4, 1992.

MCKINLEY BURRELL, PLAINTIFF-APPELLANT,
v.
TINA QUARANTA, FRANK VIGGIANO, VINCENT DICIACCO, NATIONAL FREIGHT, INC., HOUSANG KAVEH, TOWNSHIP OF MAPLE SHADE, METCALF AND EDDY, JOHN DOE, A BUSINESS ENTITY OR CORPORATION WHICH IS PRESENTLY UNKNOWN, DEFENDANTS-RESPONDENTS



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

Antell, Long and Thomas. The opinion of the court was delivered by Long, J.A.D.

Long

On January 14, 1989, the Maple Shade Sewage Treatment Plant spilled liquid onto the northbound lanes of Route 73, where it froze, causing several motor vehicle accidents. The first occurred around 9 a.m., when Vincent DiCiacco, driving a vehicle owned by National Freight, Inc., passed Tina Quaranta, who was driving Frank Viggiano's car. The ice caused DiCiacco's vehicle to spin in front of Quaranta's, following which Quaranta struck the right side of DeCiacco's car. Quaranta got out of the car to discuss the situation with DiCiacco, when McKinley Burrell, whose automobile also lost control on the ice, crashed into Quaranta's vehicle, which then struck Quaranta. Housang Kaveh's vehicle subsequently slid on the ice and collided with Burrell's vehicle. Burrell was taken to a nearby hospital where he received emergency treatment for high blood pressure.

In May 1989, Quaranta filed a personal injury complaint against DiCiacco, National Freight, Kaveh, Burrell, the Township of Maple Shade (Township) and Metcalf & Eddy, which had contracted with the Township to operate the sewage treatment plant. Burrell, who was insured by Allstate, turned the matter over to the carrier. Allstate selected John Spence to represent Burrell in Quaranta's suit. Spence filed an answer and a cross-claim for contribution against the other defendants in the Quaranta action. According to Burrell, "similar answers and cross-claims were filed among the various parties."

In August 1989, Burrell's privately retained attorney sent him to a physician for an evaluation of the injuries he sustained in the accident. The physician opined that:

[T]he patient has an ongoing left shoulder injury which is post-traumatic in nature secondary to his motor vehicle accident of 1/14/89. As noted in my final

report, further treatment and/or surgical intervention was discussed with the patient. His MRI of May 30, 1989, revealed a large rotator cuff tear. It is my opinion that this cuff tear will not heal spontaneously and that at some point in time, the patient will, with all probability, require surgical treatment due to continued symptoms and/or progressive tear to his rotator cuff.

Following an arbitration hearing on July 13, 1990, the parties (with the exception of Kaveh who had been granted summary judgment), reached a settlement with Quaranta. The record does not reveal the amount of the settlement. Apparently however, the bulk of it was paid by the Township and Metcalf & Eddy, who were responsible for creating the ice on Route 73. The stipulation of dismissal with prejudice, dated August 15, 1990, and filed November 21, 1990, is signed by Spence, suggesting that Allstate, on behalf of Burrell, contributed something to the settlement.

Burrell filed this personal injury action on September 19, 1990, after the settlement in Quaranta. All of the parties listed as defendants in Burrell's complaint were also parties in the Quaranta action, except Frank Viggiano. All parties answered with the exception of Metcalf & Eddy. DiCiacco, National Freight, and Kaveh moved for summary judgment which motions were granted by the trial Judge on the basis of the entire controversy doctrine. The remaining defendants then moved for summary judgment. The trial Judge granted the motions on entire controversy grounds except as to Viggiano who was not a party to the Quaranta action.

Burrell moved for reconsideration. Before that motion was resolved, Burrell filed a notice of appeal from the summary judgments, which were then interlocutory because of the pendency of the case against Viggiano. Thereafter, Burrell dismissed his action against Viggiano and filed an amended notice of appeal. The trial Judge subsequently denied the motion for reconsideration. At that point the matter was final.

On this appeal, Burrell argues as to all defendants that the entire controversy doctrine should not have been applied and, as to Maple Shade only, that by its conduct and its

failure to raise entire controversy as an affirmative defense, it should have been precluded from invoking that doctrine. We disagree and affirm.

The entire controversy doctrine requires a party to an action to assert all claims which he or she may have against any other party in order to preserve the claims. Cogdell v. Hospital Center at Orange, 116 N.J. 7, 15, 560 A.2d 1169 (1989); Woodward-Clyde v. Chemical and Pollution Sciences, Inc., 105 N.J. 464, 473, 523 A.2d 131 (1987). After Cogdell, the entire controversy doctrine was expanded to require mandatory joinder of parties as well as claims. This change is reflected in the current court rules. R. 4:30A. However, the joinder-of-parties ...


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