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Thomas v. Hargest

October 31, 2003

BARBARA THOMAS AND GEORGE M. THOMAS, PLAINTIFFS-APPELLANTS,
v.
DOROTHY HARGEST, AS ADMINISTRATOR OF THE ESTATE OF JOHNATHAN HARGEST, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. CPM-L-22-02.

Before Judges King, Lintner and Bilder.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: October 16, 2003

This case calls for an application of the"entire controversy" doctrine and the principles of mandatory joinder embodied in R. 4:30A.*fn1 The Law Division judge granted summary judgment to defendant. We reverse. We find that dismissal of plaintiff Barbara Thomas' personal injury action was a disproportionately harsh and inequitable remedy in this circumstance.

This case arose out of a motor vehicle accident on April 29, 2001 on Route 47 in Cape May Court House, Cape May County. According to the police accident report, Barbara Thomas was driving her Ford Tempo in a southerly direction on Route 47, about to make a left-hand turn into a private driveway. Johnathan Hargest was operating a motorcycle when he went into the north-bound lane of Route 47 to pass two vehicles following the Tempo. While passing these vehicles, Hargest crashed into Thomas' Tempo as she was making her turn. Hargest was ejected from the cycle upon impact and was found lying in a bush adjacent to the north-bound shoulder of the highway. He died as a result of the accident.

After the fire department removed her from her vehicle, Thomas was transported to Burdette Tomlin Memorial Hospital where she was admitted for observation, stabilization and pain management, and given a preliminary diagnosis of multiple contusions. Her condition improved and she was discharged on May 2, 2001 with a primary diagnosis of multiple contusions, and a secondary diagnosis of cervical strain, contusions of her left shoulder, and post-traumatic stress disorder.

On the day of her discharge, Thomas retained Joseph Grassi, Esq., to represent her in her personal injury claim arising from the motor vehicle accident. On May 18, 2001 William Miley, a psychologist, evaluated Thomas and issued a report saying she suffered from acute traumatic stress disorder because of the motor vehicle accident. He recommended she undergo three to siX months of regular psychotherapy and obtain antidepressant medication from a physician.

Thomas underwent an MRI of her cervical spine on May 25, 2001 because she still experienced neck pain. The MRI disclosed that she had herniated discs at the C4-5 and C5-6 levels. Thomas underwent a course of physical therapy for her neck pain beginning on May 21, 2001. Dr. Hershkowitz, a neurosurgeon, examined her on June 1, 2001. The examination disclosed paravertebral muscle spasm with spinal tenderness, bilateral shoulder tenderness and a decreased range of neck motion. He recommended that physical therapy continue, but he did not feel that surgical intervention was necessary at that time. Thomas continued receiving physical therapy through autumn of 2001.

Grassi, the personal injury attorney retained by Thomas, obtained a report dated July 1, 2001 from Frank Costanzo, an accident reconstruction expert. According to this report, decedent Hargest operated his motorcycle in a reckless and dangerous manner at the time of the accident because of his excessive speed while passing other vehicles. He concluded Thomas' left-hand turn maneuver did not violate any motor vehicle laws and was not a contributing cause of the accident.

On July 12, 2001 Dorothy Hargest, individually, and as administratrix ad prosequendum of Johnathan Hargest, filed a complaint in the Superior Court, Law Division, against Barbara and George Thomas. The first count set out a wrongful death action against Barbara Thomas. The second count set out a survival action against Thomas. The complaint also sought judgment against George Thomas, alleging that Barbara Thomas negligently operated her vehicle as his employee.

The Thomas' insurance carrier retained Louis Niedelman, Esq., to represent them in defense of the wrongful death and survival action. On about October 31, 2001 Niedelman filed an answer on the Thomas' behalf denying the allegations of the complaint. The answer did not assert any claim for personal injuries sustained by Barbara Thomas. Niedelman certified pursuant to R. 4:5-1(b)(2) that no other action was pending or contemplated.

Grassi and Niedelman communicated at various times on their mutual representation of Barbara Thomas. Grassi told Niedelman that although Thomas intended to pursue her personal injury claim, it was not yet"ripe" because she was still receiving treatment. In order to assist Niedelman with the defense of the wrongful death and survival action Grassi forwarded his investigative file to Niedelman on July 19, 2001. This included the police accident report, decedent's driver's abstract, a statement that Barbara Thomas gave to the police, Costanzo's accident reconstruction report, and Barbara Thomas' insurance policy.

The wrongful death and survival action was then settled in late December. A stipulation of dismissal with prejudice dated January 3, 2002 was filed on January 8. In late December 2001 Grassi learned the matter had been settled, but only after the fact. Niedelman did not consult him before the Hargest death claim settled. The Hargest death case apparently settled close ...


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