Fidelity & Deposit Co. of Md. v. Abagnale, L--15096

Decision Date22 September 1967
Docket NumberNo. L--15096,L--15096
Citation97 N.J.Super. 132,234 A.2d 511
PartiesFIDELITY & DEPOSIT COMPANY OF MARYLAND, a corporation of the State of Maryland, Plaintiff, v. Emil J. ABAGNALE, Defendant.
CourtNew Jersey Superior Court

Harold M. Kain, Newark, for plaintiff (Stickel, Kain & Stickel, Newark, attorneys).

Gerald S. Meisel, Fairview, for defendant (Krivit & Krivit, Jersey City, attorneys).

ANTELL, J.S.C. (temporarily assigned).

On these cross-motions for summary judgment the following undisputed material facts appear.

On June 17, 1960 the Totowa Savings and Loan Association was robbed of $7,323, for which defendant was indicted by a federal grand jury on February 14, 1961. On March 2, 1961 he pleaded guilty to the indictment and on March 23, 1961 was sentenced in the United States District Court for the District of New Jersey to a term of eight years imprisonment. During the period between April 5, 1961 and December 5, 1964 he was confined at the Federal Correctional Institution in Lewisberg, Pennsylvania.

On February 24, 1964 counsel for plaintiff, Totowa's subrogee, wrote defendant that plaintiff would look to him for redress. The full text of this letter, which defendant referred to his attorney, as well as the entire ensuing correspondence between counsel, follows 'February 24, 1964

Dear Sir:

We represent the Fidelity and Deposit Company of Maryland, which company insured the Totowa Savings and Loan Association against the loss sustained by the said Totowa Savings and Loan Association from the robbery, which occurred on June 17, 1960. We are advised that you and others were responsible for this loss. Our client has placed this matter in our hands for the purpose of recovering its loss, and it looks to you and the other responsible parties for reimbursement.

We are writing you in order to give you the opportunity to adjust this claim without suit if you so desire. We will expect to hear from you within 10 days of the date of letter; and if we do not hear from you, we will proceed accordingly.

Very truly yours,

(counsel for plaintiff)'

'March 3rd, 1964

Dear Harold:

Your letter to Mr. Emil Abagnale has been referred to me for attention. Emil is still confined to the Federal Penitentiary and at this time, no date has been fixed for his release. I can only state that as far as I know, Emil Abagnale is without funds of any kind and so obtaining reimbursement from him will be somewhat of a problem. Don't you agree?

Sincerely yours,

(counsel for defendant)'

'March 10th, 1964

Dear Maurice:

Our investigation has revealed that Mr. Abagnale had substantial equity in realty located at No. 242 Riverview Avenue, North Arlington, prior to his conviction. Furthermore, it is our understanding that this property was subsequently transferred without consideration to a relative. It is our intention to seek judgment and an Order setting aside this conveyance.

After you have had an opportunity to discuss this with your client or his representative, please advise us if you will continue to serve as counsel in the civil proceeding so that we may make proper service.

Sincerely yours,

(counsel for plaintiff)'

'March 11, 1964

Dear Harold:-

In answer to yours of the 10th, please be advised that I will discuss that which you state in your letter and will advise you as soon as I receive some information.

Sincerely yours,

(counsel for defendant)'

'April 29, 1964

Dear Maurice:

The home office is making inquiry in the above captioned matter. Your letter of March 11, 1964, stated you would advise me on Abagnale's intentions as soon as you have discussed the matter with him.

Please let me know the latest developments so that I in turn may advise my client.

Very truly yours,

(counsel for plaintiff)'

'May 5, 1964

Dear Harold:-

The above named is still confined to a Federal Penitentiary. Therefore, I feel that nothing can be accomplished until he is released. Thereafter, I will communicate with you.

Sincerely yours,

(counsel for defendant)'

With the exception of the period during which he was confined in Lewisberg, both defendant and his wife have continuously resided together in New Jersey since the time of their marriage approximately 11 years ago. The wife has resided without interruption at the same address in North Arlington, New Jersey.

Complaint was filed in this action on January 19, 1967 and served upon defendant February 12, 1967. Defendant responds to the complaint by interposing the six-year statute of limitations, N.J.S. 2A:14--1, N.J.S.A. Plaintiff replies by reliance upon the statute's tolling provision, N.J.S. 2A:14--22, N.J.S.A., which, in pertinent part, provides:

'If any person against whom there is any of the causes of action specified in section 2A:14--1 * * * is not a resident of the state when such cause of action accrues, or removes from this state after the accrual thereof and before the expiration of the times limited in said section * * * the time or times during which such person is not residing within this state * * * shall not be computed as part of the periods of time within which such an action is required to be commenced by the section. The person entitled to any such action may commence the same after the accrual of the cause therefor, within the period of time limited therefor by said section, exclusive of such time or times of nonresidence. * * *'

Plaintiff argues that the term of defendant's confinement at Lewisberg is saved from limitations under the foregoing section as a period of nonresidence following his removal from the State. Defendant contends that the tolling statute contemplates a voluntary removal, that his departure from the State was involuntary, that he was at all times within the reach of New Jersey process, and that the period of his confinement must accordingly be computed as part of the time limited by N.J.S. 2A:14--1, N.J.S.A. If the period of detention is exempt from computation, the action is timely brought. If not, it is barred by limitations.

To grace its claim to the benefits of the tolling section plaintiff notes that defendant pleaded guilty to the crime charged and that its right to recover is plain. It also argues that the policy considerations underlying the statute of limitations are inappropriately invoked because defendant has not been disadvantaged by the passing of time; he does not allege that witnesses have disappeared, that evidence has been lost, that memories have faded, or that the pending action comes as a surprise. Furthermore, plaintiff contends, it would be inequitable to allow defendant to evade his obligation after allowing plaintiff to anticipate that the obligation would be honored. Fraud is not claimed, nor is there a suggestion that defendant during the period of limitations made a part-payment or even promised to pay. Compare Bassett v. Christensen, 127 N.J.L. 259, 261, 21 A.2d 776 (E. & A. 1941); Ditmars v. Camden Trust Co., 10 N.J.Super. 306, 348, 76 A.2d 280 (Ch.Div.1950), affirmed 10 N.J. 471, 498, 92 A.2d 12, 35 A.L.R.2d 822 (1952).

The foregoing circumstances are insufficient to defeat the running of limitations. The statute of limitations embodies important policy considerations aimed at creating repose. It is a practical device to spare he courts from litigation of stale claims and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. It presupposes the existence of a well-founded claim, and its primary purpose is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend. The right to rely thereon is a vested right that is proof against legislative or judicial impairment. State by Parsons v. Standard Oil Co., 5 N.J. 281, 293--296, 74 A.2d 565 (1950); Union City Housing Authority v. Commonwealth Trust Co., 25 N.J. 330, 335, 136 A.2d 401 (1957); Kyle v. Green Acres at Verona, Inc., 44 N.J. 100, 108, 207 A.2d 513 (1965); Rosenau v. City of New Brunswick, 93 N.J.Super. 49, 54, 224 A.2d 689 (App.Div.1966); 34 Am.Jur., 'Limitation of Actions,' §§ 10, 14. That defendant has suffered no actual prejudice resulting from the delay is immaterial. Nothing more need be shown beyond the mere lapse of time. 34 Am.Jur., 'Limitation of Actions,' § 5, p. 15. E.g., West Jersey Title &c., Co. v. Industrial Trust Co., 27 N.J. 144, 153, 141 A.2d 782 (1958). It is even settled that the statute will not be interrupted despite the plaintiff's ignorance of the facts giving rise to the claim. Joseph v. Lesnevich, 56 N.J.Super. 340, 355, 153 A.2d 349 (App.Div.1959).

The residual question, therefore, is whether the departure of defendant, a New Jersey resident, from this State under constraint of federal authority for incarceration in a sister state suspends the running of limitations during his detention. The question has not been decided in New Jersey and little guidance is found elsewhere.

In support of its proposition that defendant's removal was voluntary plaintiff cites Robin v. Ely & Walker Dry Goods Co., 137 S.W.2d 164 (Tex.Civ.App.1940). In that case, after conviction for bankruptcy violations, defendant, a Texas resident, was sentenced to a federal prison in Oklahoma. In holding that the running of limitations was suspended during defendant's absence from Texas the court reasoned that since the crime for which he was imprisoned was voluntarily committed the consequences flowing therefrom, including imprisonment in a foreign jurisdiction were, by implication, voluntarily assumed.

This decision is inapposite for the reason that the tolling statute there involved conditioned the suspension of limitations upon the defendant merely being '* * * without the limits of this State at the time of the accruing of such action, or at any time during which the same might have been maintained * * *.'

In this respect it is materially different from our own statute, which becomes operative...

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    ...statute in consequence of changed conditions probably not foreseen by the Legislature." Fidelity & Deposit Co. of Maryland v. Abagnale, 97 N.J.Super. 132, 143-44, 234 A.2d 511, 518 (Law Div. 1967). The present tolling statute has its origins in an enactment of the Council and General Assemb......
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