On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2589-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 14, 2011
Before Judges Axelrad, Sapp-Peterson and Ostrer.
On leave granted, defendant Hess Corporation appeals from the trial court's denial of its motion to dismiss on statute of limitations grounds. The trial court had previously permitted plaintiff to name Hess in place of a fictitiously-named defendant roughly two years after the statute of limitations had run in this asbestos-related wrongful death and survivorship action. Hess argued that plaintiff was not entitled to avail himself of fictitious-party practice under Rule 4:26-4, because:
(1) in his timely filed complaint, he failed to describe the fictitiously-named defendant with sufficient detail; (2) he failed to exercise due diligence in identifying Hess as a defendant; and (3) Hess would suffer prejudice. We agree, and reverse.
Taking the allegations in the complaint as true, R. 4:6-2(e), Rene Andreoli died from mesothelioma on July 22, 2006. His estate filed its first complaint on March 1, 2007. Although the first complaint did not identify Hess as a defendant, it alleged that Andreoli was exposed to asbestos while working at a Hess-related facility.
During the course of . . . Rene Andreoli's work life, he, was exposed to asbestos while employed at Amerada Hess refinery in Perth Amboy, New Jersey from the late 1970s to the early 1980s, and then at the Amerada Hess facility in Bayonne from 1982 to 1984. He worked for a number of entities at those sites, including but not limited to Star Contracting.
Nonetheless, plaintiff did not name Hess or a related entity as a defendant. The complaint identified various corporations by name and then fictitiously named three categories of defendants: first, defendants "in the business of mining, manufacturing, supplying, installing and/or distributing asbestos containing products, fibers and dust"; second, defendants conspiring with other defendants; and third, defendants "who stand in the shoes of the defendants . . . as successor in interest, alter ego or by other equitable doctrine which makes them responsible for the defendants' liability."
The complaint alleged that the specifically-named and fictitiously-named defendants "negligently mine[d], milled, manufactured, distributed and/or conspired to distribute the aforesaid fibers, dust, particles and products to the plaintiff's employer without warning of the potential dangers. . . ." The complaint also reserved the right to name various specifically-named entities, including Johns-Manville-related entities, then said to be in bankruptcy. The first amended complaint was filed a month later apparently to name an additional potential defendant then in bankruptcy.
Represented by new counsel, plaintiff filed a second amended complaint November 26, 2008 - more than two years after Andreoli's death. The complaint modified the allegations related to Andreoli's relationship to Hess, asserting that he was actually employed by a Hess-related entity, but only for a brief period.
Decedent, Rene Andreoli was employed by Amerada Hess Refinery, Bayonne from 1982 to 1984. In the course of this and other work, plaintiff was exposed to dust from asbestos and asbestos containing products and he has contracted and died from malignant mesothelioma and other serious asbestos related diseases and died on July 22, 2006.
The complaint again identified various corporations or businesses by name, excluding Hess or Hess-related entities. It then named three groups of fictitiously-named "John Doe" defendants: seven John Does were described as various Johns-Manville entities; John Doe eight through fifty were described as unknown entities "who mined, manufactured, sold, marketed, installed or removed, asbestos or asbestos containing products which plaintiff used or was exposed to"; and John Doe 51 through 75 were described as unknown entities who were the alter egos, or who were otherwise responsible for the conduct or liability of the entities, already described as John Doe eight through fifty, "who mined, milled, manufactured, sold, marketed, installed or removed asbestos or asbestos containing products which plaintiff used or to which plaintiff was exposed."
By motion filed on or about May 28, 2010, plaintiff's third counsel sought permission to file a third amended complaint identifying Hess as one of the fictitiously-named John Doe corporations. The proposed complaint alleged that Hess failed to provide a safe work-site, allowed asbestos to be present where Andreoli was employed, and breached its duty to provide safe working conditions and to warn Andreoli of dangers. Regarding where and for whom Andreoli worked, the third amended complaint revived the allegations from the first, ...