On appeal from the Superior Court, Law Division, Atlantic County.
Before Judges Havey, Brochin and Cuff.
The opinion of the court was delivered by
CUFF, J.S.C. (temporarily assigned)
This case arises from an automobile accident which occurred on July 17, 1989 in Atlantic City and spawned four lawsuits. The sole issue on appeal is whether the entire controversy doctrine bars this fourth and final action.
On July 17, 1989, plaintiff Joseph Stebbins was the operator of a jitney bus in which his wife Marion and ten others were passengers. Defendant Daniel Robbins, the driver of a jeep owned by defendant Zinman Furs, Inc., ran a red light and struck the jitney.
On April 26, 1990, passenger Bobby Skinner filed suit against Joseph Stebbins, Daniel Robbins and Zinman Furs. On September 12, 1990, an answer on behalf of Stebbins was filed by the attorney assigned to defend him by his insurance company. A cross-claim for contribution and indemnification against Robbins and Zinman Furs was filed; no affirmative claim was asserted in this action on behalf of Stebbins.
On July 17, 1990, passenger Thomas Clisham filed suit against the same defendants. An answer was filed on Stebbins' behalf by the same attorney on October 22, 1990. A cross-claim for contribution and indemnification against Robbins and Zinman Furs was filed; no affirmative claim was asserted in this action on behalf of Stebbins. A third complaint was filed by passenger Robert
Danley against the same defendants on July 27, 1990. On September 14, 1990, the Skinner and Clisham complaints were consolidated. Before Stebbins could file an Answer, a stipulation of dismissal was entered in the Danley matter on September 24, 1990. Then, on October 2, 1990, a stipulation of dismissal was filed in the Skinner case. Each lawsuit was venued in Atlantic County.
Approximately two weeks after the accident, Stebbins and his wife retained personal counsel to represent them in their personal injury claims arising from the accident. Personal counsel then contacted defendants' insurance company to inform them of his representation. Between September 18, 1989 and June 26, 1991 (a period of twenty-one months), Stebbins' personal counsel sent seventy-eight letters to defendants' insurance company with hundreds of medical bills, medical reports, medical records and other information.
Initially, Stebbins believed that his neck injury was a severe cervical strain or sprain. His wife was also treating extensively for her injuries. On January 22, 1991, Stebbins was told for the first time that he had two herniated cervical disks. Since his personal counsel did not advise defendants' adjustor until June 4, 1991 that surgery was required, we assume that Stebbins learned of the need for surgery only shortly before then or approximately one month before his action was filed. On June 27, 1991, Joseph and Marion Stebbins filed their complaint against defendants Robbins and Zinman Furs for personal injuries sustained in the accident.
By this time the Skinner and Danley matters had been settled and the Clisham case had been subject to mandatory automobile arbitration on June 26, 1991. On June 28, 1991, Stebbins' insurance defense counsel wrote a letter confirming a settlement of the Clisham case. On July 1, 1991, the trial court was informed of the settlement and administratively dismissed the matter. Releases were executed on July 10, 1991 and the stipulation of dismissal was filed on August 8, 1991.
Once Stebbins filed his complaint, defendants filed an answer, counterclaim and third party complaint against Stebbins. The attorney assigned by Stebbins' insurance company filed an answer to the counterclaim and third party complaint. Defendants then filed a motion for summary judgment based on the entire controversy doctrine. This motion was denied. Prior to trial, Marion Stebbins' claim was settled and the claim against Zinman Furs was dismissed. After a jury trial, a verdict was returned in favor of Joseph Stebbins in the amount of $345,116.94 plus ...