On appeal from the Superior Court, Law Division, Bergen County.
Before Judges R.s. Cohen, D'Annunzio and Wallace.
The opinion of the court was delivered by
These appeals result from rulings that damage claims for alleged auto defects were preempted by federal law. We heard them together, and now consolidate them for the purpose of decision.
The injured occupants of a 1987 Hyundai Excel and their spouses sued the driver and owners of a bus ("the bus defendants") that hit the Hyundai. During most of the discovery period, the parties were under the impression that the Hyundai was equipped with lap and shoulder belts. There was a factual dispute whether the occupants were wearing them.
Just weeks before trial, almost three years after suit was started, it was discovered that 1987 Hyundai Excels were equipped with automatic shoulder harnesses, but not lap belts. The bus defendants immediately moved to file a third-party complaint for contribution and indemnification, charging the Hyundai defendants ("Hyundai") with making and marketing a defective car. The motion was denied. The reason for denial was that defendants' claim was preempted by federal law. Plaintiff's argument that the motion came too late was not ruled on.
The original parties then settled the personal injury claims, and the bus defendants filed a separate action against Hyundai for contribution and indemnification. Hyundai moved to dismiss not only on the thesis that the cause of action was preempted by federal law, but also because the preemption issue had already been decided in the first case. The same Judge heard argument, and indicated she thought the matter was precluded by her decision in the first case. She was then told that her decision had been appealed. "Excellent," she replied, "Then my dismissing this complaint will not harm you. And I dismiss it." The rulings in both cases have been appealed.
Both of the orders entered in these cases were procedurally improper. The motion to file a third-party complaint in the first case should not have been denied on the ground that the proposed cause of action was preempted by federal law. R. 4:8-1(b) describes the manner and terms on which a third-party defendant asserts defenses after being joined and served. When a defendant moves to file a third-party complaint, the proposed third-party defendant is not yet a party. The motion is addressed to the Judge's discretion, and should be considered sympathetically, in order to avoid a circuity of actions. Newmark v. Gimbel's, Inc., 54 N.J. 585, 600-01, 258 A.2d 697 (1969). However, the motion may be denied if granting it would unduly complicate or delay the trial or otherwise prejudice the parties, particularly if the defendant's cause of action will survive to support a separate action. See Du-Wel Products, Inc., v. U.S. Ins. Co., 236 N.J. Super. 349, 364, 565 A.2d 1113 (App. Div. 1989), certif. denied, 121 N.J. 617 (1990); Scott v. Garber, 82 N.J. Super. 446, 451, 198 A.2d 103 (App. Div. 1964).
A motion to file a third-party complaint should not be denied on the thesis that a potential defense to the proposed complaint would be successful. The complaint has not yet been filed, and defenses have not yet been made. It is for the third-party defendant to decide whether or not to make a particular defense, when to make it, and in what manner to make it. It is not for the Judge to make those determinations in favor of a party not yet in court any more than it would be for the Judge to reject a possible defense before it is made.
The order dismissing the complaint in the second case was entered solely on the basis of the first decision. The doctrines of res judicata and collateral estoppel apply only after the party to be foreclosed has had a full and fair opportunity to litigate the matter. See Taha v. De Palma, 214 N.J. Super. 397, 400, 519 A.2d 905 (App. Div. 1986); Zoneraich v. Overlook Hospital, 212 N.J. Super. 83, 93-95, 514 A.2d 53 (App. Div.), certif. denied, 107 N.J. 32 (1986). Here, the preemption issue was first raised in plaintiffs' brief opposing the bus defendants' motion to file the third-party complaint against Hyundai. The brief was served on them on the day of oral argument, and the issue was prematurely considered by the Judge. Those circumstances mandate that the bus defendants be afforded a thorough consideration of the issue.
The National Traffic and Motor Vehicle Safety Act of 1966 authorized the Secretary of Transportation to write and administer federal motor vehicle safety standards ("FMVSS"). 15 U.S.C.A. § 1391(2); 1392(a). One of them was FMVSS 208, which generally addressed crashworthiness standards. The Act and the FMVSS demonstrated Congress's purpose that the responsibility for automobile safety standards belonged to the federal government, with the states having only a "consultative role" in the process. S. Rep. No. 1301, 89th Cong., 2d Sess. 4 (1966), reprinted in, 1966 U.S. Code Cong. & Admin. News 2709, 2712.
FMVSS 208, in the years relevant to this case, gave manufacturers three options for protecting front-seat automobile occupants, compliance with any one of which would satisfy the federal standard:
1. Passive protection from frontal and angular collisions, which would include automatic shoulder harnesses without lap belts;
2. passive protection from head-on collisions, supplemented by seat belts and a ...