Submitted: October 29, 1997
On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Before Judges Shebell, A. A. Rodr¡guez and Coburn.
The opinion of the court was delivered by: Rodriguez, A. A., J.A.D.
In deciding this appeal, we hold that R. 4:26-4 which proscribes the entry of a final judgment against a person designated by a fictitious name should be relaxed, pursuant to R. 1:1-2 in order to avoid an inJustice.
The circumstances of this case are unusual. Plaintiff, Margaret Samuel, was injured in a single car collision while she was a passenger in her father's automobile. The automobile, a 1988 Chrysler LeBaron, was being driven by a young man whom she had met earlier that evening. She does not know his name, address, or whereabouts.
The accident occurred in the early morning hours of May 10, 1992. Earlier that evening, Samuel was driving the LeBaron, which was used primarily by her, home to New Jersey from her college in West Virginia. The LeBaron was insured by respondent Market Transition Facility of New Jersey (MTF) through its servicing carrier HCM Corporation. On the way to a relative's home in Long Beach Island, Samuel stopped at two taverns, The Hudson House and The Ketch. Samuel had worked as a waitress in the area during previous summers and was friendly with many of the patrons, bartenders and bouncers at these establishments. Samuel became intoxicated and was therefore, unable to recall subsequent events. Her last recollection prior to the accident was that she was "drinking shots with a bunch of people."
According to police investigators, some witnesses indicated that they saw Samuel at The Ketch with two young men who were staying at the northern end of Long Beach Island. One man was around twenty-two years old, large frame, with blond hair. The other young man had dark hair. No one remembered seeing Samuel leave. Through hypnosis, she recalled going to a 7-11 convenience store in Ship Bottom after leaving The Ketch. Police investigators confirmed with the store manager that a threesome fitting the description of Samuel and the two young men visited the store at about 3:30 a.m.
The accident occurred shortly after 3:30 a.m. in Harvey Cedars, a nearby town north of the convenience store. Police Officer Charles Tricka was first to arrive at the scene. It appeared to Tricka that the LeBaron had hit a telephone pole while traveling northbound on Long Beach Boulevard. He found Samuel seated in the rear seat wearing her seat belt. She was bleeding from the chin and appeared dazed. The front and rear passenger seats were covered with Samuel's belongings. There was no one near the LeBaron. A search of the immediate vicinity did not reveal the presence of any other occupants of the automobile. A police investigation failed to locate eyewitnesses to the accident.
Samuel filed a lawsuit alleging that she sustained injuries while a passenger in the LeBaron, due to the negligence of its driver. She designated the driver of the LeBaron as "John Doe." She moved for substituted service upon the MTF. The motion was denied. Samuel then served the complaint upon her father, the owner of the LeBaron and named insured under the MTF policy. MTF objected to service upon its insured. Samuel moved for substituted service on MTF again. This time the motion was granted. MTF filed a motion for leave to appeal. We granted the motion and summarily reversed ruling that:
Substituted service cannot be made on a fictitious defendant. [Samuel] may serve the fictitious defendant by publication. In any event, the complaint may be amended to substitute defendant's true name and effect service on him directly or by substitution at such time as his identity is determined. *fn1
A motion for reconsideration was denied. *fn2 Service upon the fictitiously-named driver was made by publication in The Trenton Times.
MTF filed a declaratory judgment action seeking a determination that it had: (1) no defense or indemnification obligations to the fictitious defendant; (2) no direct obligations to Samuel under the liability coverage of the policy, and (3) no obligation to provide uninsured motorist (UM) benefits to Samuel. The actions were consolidated and the personal injury action was stayed pending resolution of the declaratory action.
MTF moved for summary judgment. The Judge granted the motion. He concluded that Samuel was not entitled to UM benefits under the MTF policy because she was injured in a single vehicle collision and that vehicle was insured. The Judge also reasoned that Samuel could not benefit from bodily injury coverage provided by the MTF policy because she had to first obtain a judgment against the driver of the LeBaron and R. 4:26-4 proscribes the entry of a judgment against a fictitious defendant. Thus, the Judge agreed with MTF's argument that in "this unique factual scenario," Samuel "falls through the cracks."
On appeal, Samuel contends that: (1) the Judge committed reversible error by holding that she is barred from uninsured motorist benefits under the MTF policy, and (2) public policy considerations call for coverage ...