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Green v. Havlicek

October 20, 2010

MILTON GREEN, JR., PLAINTIFF-APPELLANT,
v.
JAN HAVLICEK, DEFENDANT.
STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, INTERVENOR-RESPONDENT.*FN1



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-157-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 22, 2010

Before Judges Cuff and Sapp-Peterson.

Plaintiff appeals the denial of his motion for reconsideration of the court's August 14, 2009 order denying reinstatement of plaintiff's complaint. We affirm, although for a slightly different reason.

Plaintiff filed a complaint in Superior Court in January 2006, seeking to recover damages from defendant, Jan Havlicek (Havlicek), the driver of the vehicle who plaintiff claimed rear-ended him on July 9, 2004. Plaintiff was unable to effectuate personal service upon Havlicek, whose driver's license, according to the police accident report, listed a Kentucky address. In March 2006, plaintiff's attorneys received correspondence from John J. McGrath (McGrath), who identified himself as an attorney who had been asked, apparently by an insurance company, to represent Havlicek. McGrath requested information as to whether Havlicek had been served, a copy of the police report, and any medical records pertaining to plaintiff. On July 21, 2006, plaintiff's counsel forwarded correspondence to McGrath requesting that he accept service on behalf of Havlicek. On July 29, 2006, the court dismissed plaintiff's complaint without prejudice for lack of prosecution pursuant to Rule 1:13-7.

In a letter dated August 9, 2006, McGrath responded to plaintiff's request that he accept service on behalf of Havlicek as follows:

Thank you for your July 21 letter.

At this point, I have not been able to establish any contact with Havlicek. I have discussed the matter with the carrier and come up with the following proposal. If your client will agree to limit recovery against Havlicek and State Auto to the available policy limits of $25,000, I will accept service on Havlicek's behalf.

Plaintiff's counsel did not follow up with a response. Instead, on April 3, 2007, he sent a letter to plaintiff's carrier advising of plaintiff's intention to accept the $25,000 limit in the Havlicek policy and requesting that the carrier review Longworth v. Ohio Casualty Group of Ins. Cos., 213 N.J. Super. 790 (App. Div. 1986), and then advise plaintiff of the option it would be selecting. Plaintiff died in November 2006 and letters of administration were issued in March 2007.

On July 28, 2009, plaintiff's counsel filed a motion seeking reinstatement of the complaint. In support of the motion, counsel submitted a certification explaining that upon receiving McGrath's August 9, 2006 letter, his secretary "believed that the defendant was in fact offering their policy limits . . . and a Longworth Letter was prepared and forwarded to the insurance company." Counsel also stated that his secretary abruptly departed from the firm and it was later brought to his attention that plaintiff's file "along with many others have not been worked up properly and it was unbeknownst to me that this matter was not an uninsured motorist claim as I had been previously informed."

The motion judge denied reinstatement finding that "[t]here was absolutely nothing done by plaintiff's firm in any connection to pursue this matter after the letter from counsel for defendant Havlicek on August 9th, 2006." The court observed that counsel's certification did not indicate when his former secretary left the firm, nor any "statement as to what the time line gaps are other than to say the secretary left abruptly and the file was not worked up." Further, the court found that despite being aware that the complaint had been dismissed for lack of prosecution in July 2006 and knowing that plaintiff had passed away in November 2006, counsel took no action to preserve plaintiff's ability to serve defendant by seeking an order for substituted service upon the carrier. See R. 4:4-4(b)(3); see also Feuchtbaum v. Constantini, 59 N.J. 167, 171 (1971).

The court reasoned that "[t]he fact that the carrier didn't agree to accept service without limiting its liability to the policy did not in any way shape or form preclude the plaintiff from pursuing relief[,]" which the court noted could have been accomplished in August 2006 and before the death of plaintiff. The court concluded that it could not "find good cause let alone any extraordinary circumstances" to reinstate the matter and then corrected itself: "[E]xcuse me[.] I said it backwards. ...


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