On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-93-99.
Before Judges Skillman, Lefelt and
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this appeal, we consider the obligation of a plaintiff who has identified a defendant by a fictitious name to exercise due diligence in amending the complaint to state the defendant's true name when the fictitiously named defendant has received notice of the action by service of a third-party complaint. The appeal also involves interpretation of a 1995 statute that allows a retail seller of an alleged defective product to be relieved of liability by filing an affidavit correctly identifying the manufacturer.
On February 4, 1997, plaintiff sustained a serious injury to his right eye while operating a hydraulic punch press in the course of his employment at Norsal Distribution Associates (Norsal). According to the report of plaintiff's safety expert, the accident was caused by a design defect in the punch press's safety guard, which allowed a piece of metal to shoot from the machine into plaintiff's eye.
At the top on the operator's side of the punch press is an oval panel which states in large capital letters:"HELLER." This side of the punch press also has a small metal plate affixed which sets forth the machine's serial number, model, size and specifications. At the top of this plate is the name"FICEP," followed in small letters by"S.p.A." At the bottom the name"HELLER" is repeated in capital letters next to the name"E.G. HELLER'S SON, INC.," also in capital letters, followed by Heller's address and telephone number. The back of machine has affixed another plate, which includes a sign with Heller's full corporate name and address, with the name"HELLER" and Heller's initials"EHG" in capital letters on both sides of the name.
Based on the labeling on the punch press, both plaintiff and his employer believed that the machine had been manufactured by Heller. Accordingly, on February 3, 1999, one day before expiration of the two-year limitations period, plaintiff filed this products liability action against Heller.*fn1 Although Heller was the only specifically named defendant, the complaint also joined as defendants"ABC Corporations 1-10" and"John Does 1-10," representing unidentified"manufacturers, distributors, designers, repairers and sellers" of the punch press.
On September 13, 1999, Heller filed a motion for leave to file a third-party complaint against FICEP, S.p.A. (FICEP). The certification in support of the motion simply stated that"[p]retrial discovery has revealed the existence of a person or entity potentially liable for all or part of plaintiff's claim in this suit, specifically third-party defendant FICEP, S.p.A.," without indicating the basis of Heller's claim against FICEP. On October 8, 1999, the trial court granted Heller's motion.
Because FICEP is an Italian corporation, Heller had to get its third-party complaint and summons translated into Italian and served in Italy. This process took several months. FICEP filed an answer to Heller's third-party complaint on March 23, 2000 and actively participated in the litigation from that point forward.
On March 9, 2001, the trial court entered a case management order which required all discovery to be completed by June 1, 2001 and stated that a trial would be scheduled in July 2001.
On May 2, 2001, plaintiff moved to amend its complaint to name FICEP as a direct defendant. The trial court denied the motion on the ground that plaintiff had"known the identity of FICEP for over a year."
Shortly after the denial of plaintiff's motion to add FICEP as a defendant, Heller moved for summary judgment on the basis of N.J.S.A. 2A:58C-9(a), which provides that the seller of a product may be relieved of liability by"fil[ing] an affidavit certifying the correct identity of the manufacturer." In support of its motion, Heller filed an affidavit certifying that FICEP was the manufacturer of the punch press. On June 8, 2001, the trial court entered an order granting Heller's motion.
Plaintiff appeals from the orders denying its motion for leave to add FICEP as a direct defendant and granting Heller's motion for ...