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Krzykalski v. Tindall

Supreme Court of New Jersey

April 17, 2018

MARK R. KRZYKALSKI and MICHELE KRZYKALSKI, Plaintiffs-Appellants,
v.
DAVID T. TINDALL, Defendant-Respondent.

          Argued January 30, 2018

          On certification to the Superior Court, Appellate Division, whose opinion is reported at 448 N.J.Super. 1 (App. Div. 2016).

          Kenneth G. Andres, Jr., argued the cause for appellant Mark R. Krzykalski (Andres & Berger, attorneys; Kenneth G. Andres, Jr., of counsel and on the brief, and Abraham Tran, on the brief).

          Daniel J. Pomeroy argued the cause for respondent (Pomeroy, Heller & Ley, attorneys; Daniel J. Pomeroy and Karen E. Heller, on the brief).

          Michael J. Epstein argued the cause for amicus curiae New Jersey Association for Justice (The Epstein Law Firm, attorneys; Michael J. Epstein, of counsel and on the brief, and Michael A. Rabasca, on the brief).

          SOLOMON, J., writing for the Court.

         In this automobile accident case brought under the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8 (CNA), the Court is called upon to determine whether a jury should be asked to apportion fault between a named party defendant and a known but unidentified defendant (John Doe).

         This case arises out of a car accident in Florence Township. The car driven by plaintiff Mark Krzykalski was in the left lane traveling north, and the car driven by defendant David Tindall was directly behind plaintiff's car. As the left-lane traffic proceeded through an intersection, a vehicle in the right lane driven by John Doe unexpectedly made a left turn, cutting off the cars in the left lane. Plaintiff was able to stop his car without striking the vehicle in front of him. Defendant, however, was unable to stop in time and rear-ended plaintiff's vehicle.

         Plaintiff suffered serious injuries in the accident and filed an uninsured motorist (UM) claim against his automobile insurance carrier. Plaintiff sued defendant and John Doe for negligence. In defendant's answer, he asserted third-party negligence as a defense, included cross-claims for indemnity and contribution from any co-defendants, and demanded fault allocation against any defendants that might settle before trial.

         The UM carrier chose not to intervene in the lawsuit. At the conclusion of the trial, over plaintiff's objection, the trial court included John Doe on the verdict sheet and instructed the jury to allocate fault between defendant and John Doe in the event that both parties were found negligent. The jury found defendant three percent negligent and John Doe ninety-seven percent negligent. Ultimately, the jury awarded plaintiff $107, 890 in damages.

         On appeal, the Appellate Division affirmed, concluding that an alleged tortfeasor does not need to be an identified party for his or her negligence and degree of responsibility to be considered by a jury. The Court granted plaintiff's petition for certification. 229 N.J. 622 (2017).

         HELD: The jury properly apportioned fault between defendant and the John Doe defendant because plaintiff and defendant acknowledged the role of John Doe in the accident, plaintiff's UM carrier was aware of the litigation, and plaintiff had fair and timely notice that defendant would assert that John Doe was the cause of the accident.

         1. The CNA and the Joint Tortfeasors Contribution Law (JTCL), N.J.S.A. 2A:53A-1 to -5, comprise the statutory framework for the allocation of fault when multiple parties are alleged to have contributed to the plaintiff's harm. Under New Jersey law, "joint tortfeasors" are "two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them." N.J.S.A. 2A:53A-1. The allocation of damages among joint tortfeasors is prescribed by the CNA. The CNA provides that, when multiple defendants have been found liable, the trier of fact shall determine "[t]he extent, in the form of a percentage, of each party's negligence or fault." N.J.S.A. 2A:15-5.2(a)(2). (pp. 8-10)

         2. The CNA requires the jury to make a good-faith allocation of the percentages of negligence among joint tortfeasors based on the evidence-not based on the collectability or non-collectability of the tortfeasors' respective shares of the damages. That principle applies not only to defendants without the assets necessary to satisfy any judgment against them, but also to defendants who are at fault but would not be required to satisfy judgments for other reasons. For example, fault can be allocated to those defendants who have reached independent settlements with a plaintiff. But allocation to settling defendants is contingent on the plaintiff's receipt of "fair and timely notice" that the remaining defendants will argue that liability should be attributed to those defendants who have settled. Young v. Latta, 123 N.J. 584, 596-97 (1991). (pp. 10-13)

          3. In New Jersey, a plaintiff may sue a person or entity as "John Doe" if the plaintiff knows a cause of action exists against the defendant but does not know the defendant's identity. The rules direct the plaintiff to "amend the complaint to state defendant's true name" at a time "prior to judgment." R. 4:26-4. Amendment under Rule 4:26-4 is a prerequisite to recovery: "[n]o final judgment shall be entered against a person designated by a fictitious name." Sometimes, it may be impossible to learn the identity of a fault-bearing defendant. This is a frequent problem, for example, in hit-and-run accidents. To protect those injured in motor vehicle accidents caused by known but unidentified drivers, New Jersey has required that automobile insurance policies include a UM provision since 1968. N.J.S.A. 17:28-1.1; Riccio v. Prudential Prop. & Cas. Ins. Co., 108 N.J. 493, 499 (1987). UM provisions insure drivers against "damages from the operator of an uninsured motor vehicle, or hit and run motor vehicle." Riccio, 108 N.J. at 499. Under that scheme, accident victims can recover through their own UM carrier-up to the policy limits-for the damages caused by a "phantom vehicle, " or a known, fault-bearing driver who cannot be identified. (pp. 13-15)

         4. In Riccio, the Court affirmed a judgment in which fifty percent of the fault for the accident had been allocated to a known but unidentified driver. Id. at 496-97. The result in that case suggests that known but unidentified defendants who are not immune from liability may be allocated fault alongside the known defendants in the case. The Appellate Division held as much in Cockerline v. Menendez, 411 N.J.Super. 596 (App. Div. 2010). In Cockerline, the plaintiff brought a wrongful death suit against the drivers involved in a multi-vehicle accident that killed her husband. Id. at 605. A number of those drivers were identified, but other drivers involved in the accident, who left the scene and were never identified, appeared in the complaint as John Doe defendants. Id. at 610. The panel noted the "different goals and purposes" served by the law that governs UM coverage and the JTCL and CNA: the former aims "'to make the victim whole, but not provide a windfall or to allow a double recovery'"; the latter laws are designed "'to relieve tortfeasors of an injustice among themselves.'" Id. at 619 (quoting Riccio, 108 N.J. at 504). In accordance with those distinct policy aims, the Appellate Division panel allowed the allocation of fault to the John Doe drivers. Ibid. From Riccio and Cockerline derives the principle that parties known to be at least in part liable should be allocated their share of the fault, even when unidentified. In such cases, known but unidentified parties may be allocated fault even though recovery against those parties will be possible only through the plaintiff's UM coverage. (pp. 15-17)

         5. An exception to that general rule can be found in Bencivenga v. J.J.A.M.M., Inc., 258 N.J.Super. 399 (App. Div. 1992). In that case, a nightclub patron sued the club after he was punched in the face by a fellow patron, whose identity he did not know. Id. at 402. The complaint named the assailant as a John Doe defendant. Ibid. The trial court, however, refused to allow the jury to consider the John Doe defendant's negligence. Ibid. The Appellate Division relied on a policy justification to affirm the trial court-that the nightclub was more likely than the plaintiff to know the assailant's identity. Id. at 410. (pp. 17-18)

         6. This case strongly resembles Cockerline. John Doe here is a known but unidentified party. Indeed, plaintiff and defendant acknowledge the role that John Doe played in causing the accident. By requiring that automobile insurance policies include a UM provision, the Legislature has acknowledged and prepared for precisely such circumstances. "Phantom vehicles" driven by known but unidentified motorists that play a part in an accident presumptively may be allocated fault in accordance with the JTCL, the CNA, and the laws requiring UM coverage. The presumptive ability to allocate fault to such defendants may be defeated if the identified defendants do not provide fair and timely notice of their intent to argue that fault should be allocated to the John Doe defendant. Here, it is undisputed that plaintiff received fair and timely notice defendant would assert that John Doe was the cause of the accident. Plaintiff's UM carrier, moreover, received notice of the litigation and had the option to intervene. Additionally, the other grounds upon which allocation has been denied in other cases do not apply here. Under the circumstances of this case and in light of the undisputed evidence that John Doe's negligence contributed to the accident, the trial court appropriately submitted the question of John Doe's negligence to the jury for fault allocation. (pp. 18-21)

         7. John Doe's party status under the CNA does not mean that the UM carrier who will ultimately cover any damages attributed to John Doe must intervene in the case and formally become a party to the negligence suit. (pp. 21-22)

         The judgment of the Appellate Division is AFFIRMED.

          OPINION

          SOLOMON, JUSTICE

          In this automobile accident case brought under the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8 (CNA), we are called upon to determine whether a jury should be asked to apportion fault between a named party defendant and a known but unidentified defendant (John Doe). We conclude that the jury properly apportioned fault between the named party defendant David Tindall (defendant) and the John Doe defendant because plaintiff Mark Krzykalski (plaintiff) and defendant acknowledged the role of John Doe in the accident, plaintiff's Uninsured Motorist (UM) carrier was aware of the litigation, and plaintiff had "fair and timely" notice that defendant would assert that John Doe was the cause of the accident.

         I.

         According to the appellate record, this case arises out of a car accident in Florence Township. The car driven by plaintiff was in the left lane traveling north, and the car driven by defendant was directly behind plaintiff's car. As the left-lane traffic proceeded through an intersection, a vehicle in the right lane driven by John Doe unexpectedly made a left turn, cutting off the cars in the left lane. Plaintiff was able to stop his car without striking the vehicle in front of him. Defendant, however, was unable to stop in time and rear-ended plaintiff's vehicle.

          Plaintiff suffered serious injuries in the accident and filed a UM claim against his automobile insurance carrier. Plaintiff rejected his insurance company's offer to settle the UM claim for the policy limits and sued defendant and John Doe[1]for negligence. In defendant's answer, he asserted third-party negligence as a defense, included cross-claims for indemnity and contribution ...


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