Burrell v. Quaranta

Decision Date04 September 1992
Citation259 N.J.Super. 243,612 A.2d 379
PartiesMcKinley BURRELL, Plaintiff-Appellant, v. Tina QUARANTA, Frank Viggiano, Vincent DiCiacco, National Freight, Inc., Housang Kaveh, Township of Maple Shade, Metcalf and Eddy, John Doe, a Business Entity or Corporation which is presently unknown, Defendants-Respondents.
CourtNew Jersey Superior Court — Appellate Division

Michael J. Piarulli, Cherry Hill, for appellant.

Tomlin, Clark & Hopkin, Haddonfield, for respondents Tp. of Maple Shade and Metcalf and Eddy (William R. Hopkin, Jr., on the brief).

Capehart & Scatchard, Mount Laurel, for respondent Tina Quaranta (Bruce A. Wallace, III, on the brief).

Green, Lundgren & Ryan, Haddonfield, for respondent Housang Kaveh (Daniel J. Distasi, on the letter brief).

Hack, Piro, O'Day, Merklinger, Wallace & McKenna, West Orange, for respondents Nat. Freight, Inc. and Vincent DeCiacco have filed a letter of nonparticipation (William J. O'Day, on the letter).

Before Judges ANTELL, LONG and THOMAS.

The opinion of the court was delivered by

LONG, J.A.D.

On January 14, 1989, the Maple Shade Sewage Treatment Plant spilled liquid onto the northbound lanes of Route 73, where it froze, causing several motor vehicle accidents. The first occurred around 9 a.m., when Vincent DiCiacco, driving a vehicle owned by National Freight, Inc., passed Tina Quaranta, who was driving Frank Viggiano's car. The ice caused DiCiacco's vehicle to spin in front of Quaranta's, following which Quaranta struck the right side of DeCiacco's car. Quaranta got out of the car to discuss the situation with DiCiacco, when McKinley Burrell, whose automobile also lost control on the ice, crashed into Quaranta's vehicle, which then struck Quaranta. Housang Kaveh's vehicle subsequently slid on the ice and collided with Burrell's vehicle. Burrell was taken to a nearby hospital where he received emergency treatment for high blood pressure.

In May 1989, Quaranta filed a personal injury complaint against DiCiacco, National Freight, Kaveh, Burrell, the Township of Maple Shade (Township) and Metcalf & Eddy, which had contracted with the Township to operate the sewage treatment plant. Burrell, who was insured by Allstate, turned the matter over to the carrier. Allstate selected John Spence to represent Burrell in Quaranta's suit. Spence filed an answer and a cross-claim for contribution against the other defendants in the Quaranta action. According to Burrell, "similar answers and cross-claims were filed among the various parties."

In August 1989, Burrell's privately retained attorney sent him to a physician for an evaluation of the injuries he sustained in the accident. The physician opined that:

[T]he patient has an ongoing left shoulder injury which is post-traumatic in nature secondary to his motor vehicle accident of 1/14/89. As noted in my final report, further treatment and/or surgical intervention was discussed with the patient. His MRI of May 30, 1989, revealed a large rotator cuff tear. It is my opinion that this cuff tear will not heal spontaneously and that at some point in time, the patient will, with all probability, require surgical treatment due to continued symptoms and/or progressive tear to his rotator cuff.

Following an arbitration hearing on July 13, 1990, the parties (with the exception of Kaveh who had been granted summary judgment), reached a settlement with Quaranta. The record does not reveal the amount of the settlement. Apparently however, the bulk of it was paid by the Township and Metcalf & Eddy, who were responsible for creating the ice on Route 73. The stipulation of dismissal with prejudice, dated August 15, 1990, and filed November 21, 1990, is signed by Spence, suggesting that Allstate, on behalf of Burrell, contributed something to the settlement.

Burrell filed this personal injury action on September 19, 1990, after the settlement in Quaranta. All of the parties listed as defendants in Burrell's complaint were also parties in the Quaranta action, except Frank Viggiano. All parties answered with the exception of Metcalf & Eddy. DiCiacco, National Freight, and Kaveh moved for summary judgment which motions were granted by the trial judge on the basis of the entire controversy doctrine. The remaining defendants then moved for summary judgment. The trial judge granted the motions on entire controversy grounds except as to Viggiano who was not a party to the Quaranta action.

Burrell moved for reconsideration. Before that motion was resolved, Burrell filed a notice of appeal from the summary judgments, which were then interlocutory because of the pendency of the case against Viggiano. Thereafter, Burrell dismissed his action against Viggiano and filed an amended notice of appeal. The trial judge subsequently denied the motion for reconsideration. At that point the matter was final.

On this appeal, Burrell argues as to all defendants that the entire controversy doctrine should not have been applied and, as to Maple Shade only, that by its conduct and its failure to raise entire controversy as an affirmative defense, it should have been precluded from invoking that doctrine. We disagree and affirm.

The entire controversy doctrine requires a party to an action to assert all claims which he or she may have against any other party in order to preserve the claims. Cogdell v. Hospital Center at Orange, 116 N.J. 7, 15, 560 A.2d 1169 (1989); Woodward-Clyde v. Chemical and Pollution Sciences, Inc., 105 N.J. 464, 473, 523 A.2d 131 (1987). After Cogdell, the entire controversy doctrine was expanded to require mandatory joinder of parties as well as claims. This change is reflected in the current court rules. R. 4:30A. However, the joinder-of-parties requirement of Cogdell is inapplicable here because Cogdell was decided and the rule was adopted after suit was filed in the Quaranta case.

The controlling court rule prior to Quaranta's initial complaint was R. 4:27-1(b), which stated: "[e]ach party to an action shall assert therein all claims which he may have against any other party thereto insofar as may be required by application of the entire controversy doctrine." The term "claims" in the rule includes counterclaims and crossclaims. R. 4:7-1; R. 4:7-5(a). See Woodward-Clyde, supra, 105 N.J. at 472-73, 523 A.2d 131 (mandatory counterclaim); William Blanchard Co. v. Beach Concrete Co., Inc., 150 N.J.Super. 277, 292-94, 375 A.2d 675 (App.Div.1977), certif. denied, 75 N.J. 528, 384 A.2d 507 (1977) (mandatory cross-claims).

"Underlying the entire controversy doctrine are the twin goals of efficient judicial administration and fairness to litigants." Woodward-Clyde, supra, 105 N.J. at 472, 523 A.2d 131. In the "modern era of litigation, particularly in the tort field with the advent of comparative negligence, it is highly desirable that all parties with a material interest, one that can affect or be affected by the judicial outcome of a legal controversy, should participate in its litigation." Cogdell, supra, 116 N.J. at 23, 560 A.2d 1169. Requiring parties to assert all claims in the initial litigation enables each to "make a rational and complete appraisal of its position ..." at the outset. William Blanchard Co., supra, 150 N.J.Super. at 295, 375 A.2d 675. The doctrine prevents harassment of litigants and promotes speedy resolution of controversies. Woodward-Clyde, supra, 105 N.J. at 472, 523 A.2d 131.

The doctrine is also essential to conserve judicial resources:

Judicial economy and efficiency--the avoidance of waste and delay--remain constants in the application of the entire controversy doctrine. Fragmented and multiple litigation takes its toll on not only the parties but the judicial institution and the public. This, if anything, is a more pressing concern today than it was in the past. The litigation explosion stretches judicial capabilities enormously and places extraordinary demands on the courts. These concerns have impelled the Court to pursue novel and creative measures to cope with the increase in case loads. We are importuned to conserve judicial resources; judicial energy is not inexhaustible or endlessly renewable. Thus, a rule that can control litigational extravagance and reduce piecemeal litigation is a necessity. [Cogdell, supra, 116 N.J. at 23-24, 560 A.2d 1169 (footnotes omitted) ].

On appeal, Burrell principally contends that the entire controversy doctrine should not apply where, as here, a plaintiff is represented in the initial action by an attorney selected by his or her automobile liability carrier. He reasons that the carrier is the real party in interest in defending the first law suit, while the injured person is the real party in interest in pursuing the second suit. Burrell cites Humble Oil & Refining Co. v. Church, 100 N.J.Super. 495, 242 A.2d 652 (App.Div.1968) which he views as the primary authority on this issue.

Humble Oil arose out of a collision between plaintiff's truck and two automobiles. The accident caused the death of a passenger in one of the vehicles, and her estate brought suit which ultimately settled. Humble Oil's liability carrier contributed toward the settlement. Humble Oil then filed suit against the drivers of the automobiles to recover for damage to its truck. The trial court dismissed, in part, because Humble Oil could have asserted its property damage claim in the passenger's wrongful death suit. We reversed, primarily because the liability carrier had control over the passenger's lawsuit. Id. at 498-99, 242 A.2d 652. In rejecting the trial judge's reliance on the entire controversy doctrine, we stated:

A property damage claim, a personal injury claim and a claim for contribution under the Joint Tortfeasors Contribution Law constitute separate claims for relief even though they all arise by reason of one tortious incident. Joinder of such claims is permissive, not mandatory. [100 N.J.Super. at 500, 242 A.2d 652 (citations...

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