On appeal from Superior Court, Law Division, Middlesex County.
Approved for Publication February 27, 1995.
Before Judges Landau, Conley and Newman.
The opinion of the court was delivered by: Landau
The opinion of the court was delivered by LANDAU, J.A.D.
This is an appeal by plaintiffs Joseph Prevratil and his wife Lisa from an adverse judgment entered following a summary judgment motion instituted by defendants George Mohr and Rich Hill Transportation in plaintiffs' suit to recover personal injury damages alleged to arise from a three-vehicle accident on March 2, 1989. Summary judgment was rendered for defendants under the entire controversy doctrine after the Judge first conducted a plenary Cafferata *fn1 hearing to resolve a disputed factual issue respecting plaintiffs' awareness of prior litigation, arising out of the same accident. We affirm.
In the prior action, Joseph Prevratil and his employer were named defendants by Janet Olsen, the injured driver of one of the vehicles. The present defendants were also sued in the Olsen action.
Olsen's case was settled by stipulation of dismissal signed December 4, 1989, and filed January 26, 1990. An answer had been filed in that action on behalf of Prevratil and his employer by an attorney retained by the employer's motor vehicle liability carrier. Although their pleadings asserted a cross-claim for contribution, no cross- or counter-claims for personal injury were made on behalf of Prevratil in the Olsen case. The present suit was filed on November 25, 1990, thus naming Mohr and Rich Hill as defendants for the second time in a personal injury action arising out of the same accident.
Defendants' answer did not formally raise entire controversy as an affirmative defense. However, the absence of such defense was itself not raised in opposition to defendants' motion for summary judgment, which was based upon entire controversy principles. Neither was the issue raised by way of objection to the plenary factual hearing conducted by the Judge, with the agreement of both parties, in order to rule on that motion.
Prevratil said below that he was "severely injured" in the March 2 accident, that he was never served with the Olsen complaint, and that he had no knowledge from letters, interrogatories or otherwise that a case existed or had been settled until after it was concluded. The Judge did not believe him, and found as a fact that Prevratil was aware of the Olsen action during its pendency.
The proofs set out during the special hearing also showed that plaintiffs had timely knowledge of the alleged injury. In fact, Prevratil was represented by counsel in a workers' compensation action while the Olsen suit was pending. On cross-examination, Prevratil testified that he was in touch with his own attorney as early as three months after the accident in June 1989; not primarily for workers' compensation but "to file for a lawsuit because I was severely injured from the accident...".
In Cafferata v. Peyser, 251 N.J. Super. 256, 260, 597 A.2d 1101 (App. Div. 1991), we held that the knowledge of the existence of a cause of action which will invoke the entire controversy doctrine is the same as the knowledge which will trigger the running of the statute of limitations in those cases to which the discovery rule of deferred accrual is applicable. We made it plain, however, that judicial fairness required that the party whose claim is sought to be barred must have had a fair and reasonable opportunity to fully litigate that claim in the original action. Id. at 261. In Cafferata that opportunity was deemed clearly not present because the parties had merely settled a small physician's fee complaint brought in the Special Civil Part, out of court, and without benefit of counsel. Id. at 261-62.
In the present case, as in Burrell v. Quaranta, 259 N.J. Super. 243, 612 A.2d 379 (App. Div. 1992), plaintiffs' had full knowledge of the injury. Moreover, Prevratil, the insured party, was found to be aware of the pending Olsen suit in which he was a named defendant. Thus, early on, he had both an insurance counsel and a separate counsel retained for workers' compensation purposes or even "to file for a lawsuit", if his answer on cross-examination is credited.
Cogdell v. Hospital Center at Orange, 116 N.J. 7, 560 A.2d 1169 (1989) was decided prior to settlement of the Olsen case, and so is authoritative here. However, we note again that the present defendants were also the defendants in Olsen, in which Prevratil was a party. Long before Cogdell and Burrell addressed the entire controversy doctrine, it was clear that parties in an action must, in that action, join issue on at least such matters between them as arise out of its subject matter. See Cogdell, supra, at 16-17. There is nothing new about this concept.
Plaintiff urges that the present case must be governed by our recent opinion in Stebbins v. Robbins, 278 N.J. Super. 439 (App. Div. 1995) decided January 12, 1995. There, in reliance upon Crispin v. Volkswagenwerk A.G., 96 N.J. 336, 355, 476 A.2d 250 (1984), Cafferata, supra, and Humble Oil & Ref. Co. v. Church, 100 N.J. Super. 495, 242 A.2d 652 (App. Div. 1968), it was concluded that "automobile personal injury litigation has been treated generally as an exception to the mandatory joinder of claims required by the entire controversy rule," and that the R. 4:5-1(b)(2) certification "satisfies the ...