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Erenberg v. Cordero

October 22, 1996


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

Approved for Publication October 17, 1996. As Amended November 6, 1996.

Before Judges Pressler, Stern and Humphreys. The opinion of the court was delivered by Pressler, P.j.a.d. Stern, J.A.D., Concurring.

The opinion of the court was delivered by: Pressler

The opinion of the court was delivered by PRESSLER, P.J.A.D.

Defendant General Motors Corporation of America (GM) moved, on entire controversy grounds, for summary judgment dismissing this consolidated action against it. It appeals, on leave granted, from the denial of its motion, and we affirm.

The entire controversy problem before us arises out of the tragic death of thirteen-year old Marc Erenberg on March 7, 1992. Marc was a back-seat passenger in a Pontiac Firebird being driven by his stepmother, plaintiff Leslie A. Napoli, on Route 46 in Little Ferry, when the vehicle was struck in a multi-car collision caused by the negligence of the driver of one of the other vehicles, defendant Carlos Cordero, who was driving while intoxicated. Marc died shortly thereafter of the injuries he sustained in the accident. Injuries were also sustained by the other occupants of Napoli's vehicle//--Napoli herself; Marc's father, plaintiff Joel Erenberg; and Marc's grandmother, plaintiff Lillian Erenberg. Cordero was convicted in the Law Division, Bergen County, of death by auto.

The multi-state litigation that followed is attributable, at least in substantial part, to the fact that Marc's parents are divorced. At the time of the accident Marc was living with his mother Lois Erenberg in Westchester County, New York, and was with his father, a resident of Fort Lee, New Jersey, for a visit. Shortly after the boy's death, Lois Erenberg petitioned the Westchester County Surrogate for letters of limited administration authorizing her to commence a personal injury and wrongful death action on behalf of Marc's estate. After Joel Erenberg was noticed, letters were issued to Marc's mother on April 24, 1992, just six weeks after the tragedy. She commenced an action as administratrix against Cordero and Napoli and the drivers of the other two cars involved in the collision in Bronx County, Cordero's place of residence, on June 5, 1992. Joel Erenberg was named in the complaint as among Marc's next of kin but was not a party to the action. Napoli, although a defendant, did not file any crossclaims or third-party complaints. The action was ultimately settled by the payment by Cordero's liability carrier of his policy limit of $50,000 and the payment by Napoli's liability carrier of $50,000 under the underinsured motorist (UIM) clause of her policy. According to New York practice, the settlement was authorized by a decree of the Westchester County Surrogate's Court, entered in November 1993, confirming the mother's petition therefor filed on July 30, 1993. The proceeds of the settlement, after deduction of attorney's fees and expenses, were shared equally by the parents.

In the meantime, matters were proceeding in New Jersey with respect to other claims by Erenberg family members arising out of the accident that had not been raised in the New York action. Primary among these claims was the second-collision claim against GM, the manufacturer of Napoli's vehicle, based on the contention that the seat belt Marc was wearing at the time of the accident was defective either in manufacture or design and that it was the defective seat belt which caused the internal injuries from which Marc died. These claims were raised in two separate actions in New Jersey, both filed after the date of Lois Erenberg's petition in New York for the approval of the settlements. The first of the New Jersey actions was instituted on August 12, 1993, by Joel Erenberg, individually and as administrator ad prosequendum of Marc's estate. *fn1 The second was instituted on February 4, 1994, by Napoli.

In their respective actions, thereafter consolidated, Napoli and Joel Erenberg each sought recovery from GM and the fictitiously named manufacturer of the seat belt for the emotional distress damages each allegedly sustained as a result of having witnessed Marc's death. See Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980). Joel Erenberg, as administrator ad prosequendum, also sought survivor and wrongful death damages against GM based on the allegedly defective seat belt. Both Napoli and Erenberg also sought damages for their own personal injuries from GM on an unspecified products liability theory.

The question raised is whether the entire controversy doctrine bars the prosecution in New Jersey of the suit against GM by Napoli and by Erenberg, both individually and as administrator ad prosequendum. The trial court concluded that it did not, and we agree.

In broad terms, the present contours of New Jersey's unique entire controversy doctrine require parties to an action not only to raise in that action all claims they may have against each other arising out of the subject transaction but also to join all non-parties subject to the court's jurisdiction against whom additional accrued claims arising out of that transaction may be asserted. See generally Circle Chevrolet v. Giordano, Halleran & Ciesla, 142 N.J. 280, 662 A.2d 509 (1995); Cogdell v. Hospital Center at Orange, 116 N.J. 7, 560 A.2d 1169 (1989). The doctrine has also been construed as barring a subsequent suit in the courts of this State if there was a prior action in another forum in which non-parties sought to be sued here were there joinable. Mortgagelinq Corp. v. Commonwealth Land Title, 142 N.J. 336, 343-345, 662 A.2d 536 (1995). We are aware of the New Jersey Supreme Court's continuing commitment to an expansively embracing entire controversy doctrine for the purposes of avoiding fragmentation of litigation, achieving expediency in the Disposition of controversies for the benefit of the civil Justice system as a whole, and sparing litigants//--both present and prospective//--from undue harassment, expense, and other burden. See, e.g., Prevratil v. Mohr, 145 N.J. 180, 187, 678 A.2d 243 (1996). But the Supreme Court has also recognized that since the doctrine is equitably rooted, "its application is left to judicial discretion based on the particular circumstances inherent in a given case." Mystic Isle Development Corp. v. Perskie & Nehmad, 142 N.J. 310, 323, 662 A.2d 523 (1995). See also Prevratil, (supra) , 145 N.J. at 190, noting that "equitable considerations can relax mandatory-joinder requirements when joinder would be unfair." As we understand the doctrine, chief among these equitable considerations is the full and fair opportunity of the party sought to be precluded in the second action to have raised the claim there asserted in the original action. That consideration, together with the evident lack of prejudice to the defendant in the second action, militates against the doctrine's application here.

We consider, in the context of these principles, the sole question before us, namely, whether GM, not having been joined in the New York action brought by Marc's mother as administratrix ad prosequendum, may be sued in New Jersey by Marc's father, who was not a party to the New York action; by Marc's estate, which was a party plaintiff; and by Marc's stepmother, who was a nominal party defendant. We hold that in the circumstances here, the suit in New Jersey by each against GM is not barred by the entire controversy doctrine.

Resolution of the issue requires some further reference to the New York proceeding. To begin with, that suit was controlled by Marc's mother as administratrix. The record leaves no doubt that her desire was to obtain the available insurance proceeds with as little involvement on her part or protraction of the proceedings or other complication as was possible. As early as July 28, 1992, little more than a month after the New York suit was commenced, Joel Erenberg's New Jersey attorney, Richard B. Ansell, discussed the scope of the suit with Lois Erenberg's New York attorney, Mark Oxman. The gist of their conversation, recorded contemporaneously by Ansell, was that Cordero's carrier had already offered its $50,000 policy limit and negotiations were pending with Napoli's carrier for payment under her UIM protection. Although Ansell at least suspected a potential products liability claim at the time, he noted that Oxman "does not want to pursue other claims//--we can if we want."

The New York action lasted another year. There is no question from this record that the delay was due only to the UIM claim made by Marc's estate against the Napoli policy, the carrier, apparently, having insisted on its arbitration rights. That proceeding was concluded in mid-June 1993 by an award, uncontested by the carrier, in the estate's favor for the full available amount of $50,000. That award effectively concluded the New York action, resulting in a total recovery of $100,000 for the estate. During that year, however, Ansell continued to communicate with Oxman regarding what Ansell now was satisfied was a viable seat belt claim against GM. He advised Oxman of the father's concern that the mother was refusing to raise that matter in the New York suit and requested Oxman to consider appointment of the father as a co-administrator in ...

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