Claypotch v. Heller, Inc.

• Decision Date: 30 May 2003
• Citation: 360 N.J. Super. 472,823 A.2d 844
• Parties: David CLAYPOTCH and Beth Claypotch, his wife, Plaintiffs-Appellants, v. HELLER, INC., Defendant/Third Party Plaintiff-Respondent, v. FICEP, S.p.A., Third Party Defendant-Respondent.
• Court: New Jersey Superior Court

823 A.2d 844

360 N.J. Super. 472

David CLAYPOTCH and Beth Claypotch, his wife, Plaintiffs-Appellants, v. HELLER, INC., Defendant/Third Party Plaintiff-Respondent, v. FICEP, S.p.A., Third Party Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued April 1, 2003.

Decided May 30, 2003.

Evan L. Goldman, Edison, argued the cause for appellants (Starr, Gern, Davison & Rubin, Roseland, attorneys; Mr. Goldman, of counsel and on the brief; Ben-David Seligman, West Orange, on the brief).

Harry D. McEnroe, Florham Park, argued the cause for respondent Heller, Inc. (Heim & McEnroe, attorneys; Mr. McEnroe and Mary Seitz, on the brief).

John R. Altieri, Hackensack, argued the cause for respondent FICEP, S.p.A. (Pino & Associates and Mr. Altieri, attorneys; Mr. Altieri, on the brief).

Before Judges SKILLMAN, LEFELT and WINKELSTEIN. The opinion of the court was delivered by SKILLMAN, P.J.A.D

In this appeal, we consider the obligation of a plaintiff who has identified a defendant by a fictitious name to exercise due diligence in amending the complaint to state the defendant's true name when the fictitiously named defendant has received notice of the action by service of a third-party complaint. The appeal also involves interpretation of a 1995 statute that allows a retail seller of an alleged defective product to be relieved of liability by filing an affidavit correctly identifying the manufacturer.

On February 4, 1997, plaintiff sustained a serious injury to his right eye while operating a hydraulic punch press in the course of his employment at Norsal Distribution Associates (Norsal). According to the report of plaintiff's safety expert, the accident was caused by a design defect in the punch press's safety guard, which allowed a piece of metal to shoot from the machine into plaintiff's eye.

At the top on the operator's side of the punch press is an oval panel which states in large capital letters: "HELLER." This side of the punch press also has a small metal plate affixed which sets forth the machine's serial number, model, size and specifications. At the top of this plate is the name "FICEP," followed in small letters by "S.p.A." At the bottom the name "HELLER" is repeated in capital letters next to the name "E.G. HELLER'S SON, INC.," also in capital letters, followed by Heller's address and telephone number. The back of the machine has affixed another plate, which includes a sign with Heller's full corporate name and address, with the name "HELLER" and Heller's initials "EHG" in capital letters on both sides of the name.

Based on the labeling on the punch press, both plaintiff and his employer believed that the machine had been manufactured by Heller. Accordingly, on February 3, 1999, one day before expiration of the two-year limitations period, plaintiff filed this products liability action against Heller.¹ Although Heller was the only specifically named defendant, the complaint also joined as defendants "ABC Corporations 1-10" and "John Does 1-10," representing unidentified "manufacturers, distributors, designers, repairers and sellers" of the punch press.

On September 13, 1999, Heller filed a motion for leave to file a third-party complaint against FICEP, S.p.A. (FICEP). The certification in support of the motion simply stated that "[p]retrial discovery has revealed the existence of a person or entity potentially liable for all or part of plaintiff's claim in this suit, specifically third-party defendant FICEP, S.p.A.," without indicating the basis of Heller's claim against FICEP. On October 8, 1999, the trial court granted Heller's motion.

Because FICEP is an Italian corporation, Heller had to get its third-party complaint and summons translated into Italian and served in Italy. This process took several months. FICEP filed an answer to Heller's third-party complaint on March 23, 2000 and actively participated in the litigation from that point forward.

On March 9, 2001, the trial court entered a case management order which required all discovery to be completed by June 1, 2001 and stated that a trial would be scheduled in July 2001.

On May 2, 2001, plaintiff moved to amend its complaint to name FICEP as a direct defendant. The trial court denied the motion on the ground that plaintiff had "known the identity of FICEP for over a year."

Shortly after the denial of plaintiff's motion to add FICEP as a defendant, Heller moved for summary judgment on the basis of N.J.S.A. 2A:58C-9(a), which provides that the seller of a product may be relieved of liability by "fil[ing] an affidavit certifying the correct identity of the manufacturer." In support of its motion, Heller filed an affidavit certifying that FICEP was the manufacturer of the punch press. On June 8, 2001, the trial court entered an order granting Heller's motion.

Plaintiff appeals from the orders denying its motion for leave to add FICEP as a direct defendant and granting Heller's motion for summary judgment. We reverse both orders.

I

Rule 4:26-4 provides in pertinent part:

In any action, ... if the defendant's true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification. Plaintiff shall on motion, prior to judgment, amend the complaint to state defendant's true name, such motion to be accompanied by an affidavit stating the manner in which that information was obtained.

The identification of a defendant by a fictitious name, as authorized by Rule 4:26-4, may be used only if a defendant's true name cannot be ascertained by the exercise of due diligence prior to filing the complaint. Mears v. Sandoz Pharms., Inc., 300 N.J.Super. 622, 631-33, 693 A.2d 558 (App.Div.1997); Cardona v. Data Sys. Computer Ctr., 261 N.J.Super. 232, 235, 618 A.2d 864 (App.Div.1992). If a defendant is properly identified by a fictitious name before expiration of the applicable limitations period, an amended complaint substituting a fictitiously named defendant's true name will relate back to the date of filing of the original complaint. Viviano v. CBS, Inc., 101 N.J. 538, 548, 503 A.2d 296 (1986); Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 120-23, 299 A.2d 394 (1973). To be entitled to the benefit of this rule, a plaintiff must proceed with due diligence in ascertaining the fictitiously identified defendant's true name and amending the complaint to correctly identify that defendant. Farrell, supra, 62 N.J. at 120, 299 A.2d 394; Johnston v. Muhlenberg Reg'l Med. Ctr., 326 N.J.Super. 203, 208, 740 A.2d 1122 (App. Div.1999). In determining whether a plaintiff has acted with due diligence in substituting the true name of a fictitiously identified defendant, a crucial factor is whether the defendant has been prejudiced by the delay in its identification as a potentially liable party and service of the amended complaint. Farrell, supra, 62 N.J. at 122-23, 299 A.2d 394. The trial court denied plaintiff's motion to substitute FICEP for a fictitiously named defendant solely on the ground that plaintiff failed to proceed with due diligence in moving to amend his complaint after learning FICEP's identity. However, FICEP argues, as an alternative ground for affirmance, that plaintiff failed to exercise due diligence in identifying FICEP as the manufacturer before filing his complaint. Consequently, we first consider whether plaintiff exercised due diligence in identifying FICEP as the manufacturer of the punch press before filing the complaint and second whether plaintiff acted with due diligence in substituting FICEP as a direct defendant once he became aware that FICEP, not Heller, was the manufacturer.

Plaintiff had a reasonable basis for believing that Heller was the manufacturer of the punch press. On the top of the operator's side of the machine is a panel which states in large capital letters: HELLER. In the middle on the same side of the punch press machine is a metal plate which sets forth the machine's serial number, model, size and specifications. At the top of this plate in large capital letters is the name "FICEP," followed in small letters by the initials "S.p.A." At the bottom of this plate, also in large capital letters, is the name HELLER, followed by its full corporate name, address and telephone number. The back of the machine also contains a metal plate with Heller's full corporate name, address and telephone number. On the top of this side of the machine, beside a logo, is the word "FICEP" in capital letters. However, there is no indication what this word signifies. Consequently, even if plaintiff had looked at the back of the machine, he could have reasonably thought FICEP was a Heller brand or product model name. Moreover, even if plaintiff noticed the initials "S.p.A." after FICEP in the one place those initials appear, it would be unreasonable to expect a layman or even a lawyer to know that this is the Italian equivalent of "Inc." We also note that the principal of plaintiff's employer certified that he believed, based on the labeling placed on the machine and the prominent mention of Heller in the operating manual, that Heller was the manufacturer. Therefore, we reject FICEP's argument that plaintiff should have ascertained before filing his complaint that FICEP, not Heller, was the manufacturer of the punch press.

We consider next whether plaintiff acted with due diligence in moving to substitute FICEP for a fictitiously identified defendant. When Heller moved for leave to file a third-party complaint, its supporting certification simply identified FICEP as a party "potentially liable for all or part of plaintiff's claim."² Thus, this motion did not inform plaintiff that FICEP had manufactured the punch press. Moreover, FICEP's answer, filed on March 23, 2000, did not identify FICEP as the manufacturer. However, plaintiff's counsel must have become aware through informal...