Fuschetti v. Bierman

• Decision Date: 30 April 1974
• Citation: 319 A.2d 781,128 N.J.Super. 290
• Parties: Sharon FUSCHETTI, Plaintiff, v. Donald I. BIERMAN, Defendant.
• Court: New Jersey Superior Court

Page 290

128 N.J.Super. 290

319 A.2d 781

Sharon FUSCHETTI, Plaintiff, v. Donald I. BIERMAN, Defendant.

Superior Court of New Jersey Law Division.

April 30, 1974.

John M. Blume, Newark, for plaintiff (Blume, Kalb & Weiseman, Newark, attorneys).

Richard J. Sauerwein, Springfield, for defendant.

BRODY, J.J.D.R.C., Temporarily Assigned.

When this legal malpractice action was assigned for trial several weeks ago, counsel appeared and orally made various motions that must be decided before trial. Today is the adjourned trial date and the return day of the motions.

On August 28, 1964 plaintiff slipped and fell as she was leaving the General Motors Futurama exhibit at the New York World's Fair. The following month she consulted defendant, then an attorney-at-law of New Jersey, to have him represent her in making a claim for personal injuries arising out of the accident.

Plaintiff contends that from this interview defendant led her to believe that he would 'handle' her matter, with the likelihood of his having to engage New York counsel to process suit. She further contends that for six years thereafter she telephoned defendant on an average of two or three times a year, inquiring into the progress of the case and that on each occasion he assured her that it was moving slowly toward trial in New York. In the fall of 1970 plaintiff consulted another attorney, who learned from defendant that no case had been instituted. Defendant claimed to have advised plaintiff by letter dated August 16, 1965 that she should engage New York counsel and that he would do nothing more on her behalf. Plaintiff denies having received the letter and the authenticity of defendant's file copy is in question.

The applicable New York statute of limitations barred plaintiff's personal injury action on August 28, 1967, three years after the date of the accident. The present action was commenced March 31, 1971.

The following questions need to be resolved at this time: (1) Is the present action barred by the New Jersey statute of limitations? (2) Since the statute of limitations is an affirmative defense in New York, may plaintiff bring the present action without having first failed in her attempt to bring the personal injury action? (3) Assuming the issues to be tried include defendant's neglect and the lost value of plaintiff's personal injury action, should the trial be bifurcated? (4) In considering the lost value of plaintiff's personal injury action, should the jury decide the case as a matter of first impression or should it determine what a New York jury would have decided if timely suit had been instituted? (5) If the issue is what a New York jury would have done, may plaintiff adduce expert testimony of New York settlement value and verdict value? (6) Is the fact of defendant's disbarment, subsequent to the events of this case and for reasons unrelated to this case, admissible to affect his credibility?

Counsel have stipulated that the present action would not be barred if the applicable statute of limitations is N.J.S.A. 2A:14--1 (the six-year statute), but would be barred subject to a discovery hearing if the applicable statute is N.J.S.A. 2A:14--2 (the two-year statute). The latter statute applies to 'every action at law for an injury to the person caused by the wrongful act, neglect or default of any person * * *.' The former statute applies to any other 'tortious injury to the rights of another * * * or for recovery upon a contractual claim or liability * * *.' There is no statute explicitly covering malpractice actions.

In the absence of an explicit indication of special meaning, the words of a statute are to be given their ordinary and well-understood meaning. Fahey v. Jersey City, 52 N.J. 103, 107, 244 A.2d 97 (1968). By its language the two-year statute applies only where defendant is charged with having 'caused' plaintiff an injury to the person. Such is not the case here where defendant is charged with having caused plaintiff the loss of recovery from an action which happens to be for a personal injury. Hillhouse v. McDowell, 219 Tenn. 362, 410 S.W.2d 162 (Sup.Ct.1966); O'Neill v. Gray, 30 F.2d 776 (2 Cir. 1929). Cf. McLellan v. Fuller, 226 Mass. 374, 115 N.E. 481, 482 (Sup.Jud.Ct.1917). The present action comes under N.J.S.A. 2A:14--1 and is therefore not barred.

Defendant contends that since the defense of the statute of limitations must be affirmatively pleaded in New York, the present action may not be heard until the personal injury action is brought and dismissed as barred by the statute, citing Wood v. Anderson, 60 Ga.App. 262, 3 S.E.2d 788 (Ct.App.1939). That case held that a legal malpractice action was premature where defendant attorney was charged with having commenced plaintiff's malpractice action against a dentist one day after the statute had run. The holding was based upon the court's finding that the discovery rule would likely be applied in the medical malpractice action so as to relieve plaintiff from the bar. There is no such showing in this case. The failure of an attorney to commence an action within the time of the statute would ordinarily be considered neglect. Cf. Palm Beach Mercantile Co. v. Ivers, 2 N.J.Super. 5, 10, 64 A.2d 367 (App.Div.1949). Once plaintiff has shown that defendant allowed the statute to run against her claim, defendant should have the burden of coming forward with evidence that the statute would not be a bar. Drury v. Butler, 171 Mass. 171, 50 N.E. 527, 529 (Sup.Jud.Ct.1898).

Except for the last question, the remaining questions go to the structure of the trial. Basically, two issues are to be tried: defendant's neglect and an evaluation of plaintiff's loss should the first issue be determined in her favor. The first issue essentially resolves itself into whether defendant seasonably informed plaintiff that he was no longer representing her. The second issue requires a determination of the recovery, if any, plaintiff would have had if the personal injury action had been instituted in New York ¹ within time.

Plaintiff looks to a 'trial-within-a-trial,' with defendant defending himself as to his own neglect and standing in the shoes of the personal injury defendants as to their neglect. Christy v. Saliterman, 288 Minn. 144, 179 N.W.2d 288 (Sup.Ct.1970); Better Homes, Inc. v. Rodgers, 195 F.Supp. 93 (D.W.Va.1961); 45 A.L.R.2d 62, 65. She contends that the personal injury recovery must be determined in light of what a New York jury would have done, thereby rendering admissible expert testimony of New York verdict value as a factor to be considered along with factual evidence of her claim. Beyond that, plaintiff contends that she lost the potential of settlement, so that expert testimony of reasonable New York settlement value should be admitted.

Defendant also looks to a 'trial-within-a-trial' but he would have it bifurcated between the issues of liability and damages, in keeping with the established policy of this county in personal injury actions. He objects to the admissibility of expert testimony as to New York settlement and verdict value as 'irrelevant' and without legal precedent.

There appears to be no authority explicitly dealing with these questions. Plaintiff cites Jiffy Foods Corp. v. Hartford Acc. and Indem. Co., 331 F.Supp. 159 (D.Pa.1971), and Central Cab Co. v. Clarke, 259 Md. 542, 270 A.2d 662 (Ct.App.1970), to sustain the admissibility of expert testimony as to reasonable settlement value. But in those cases the issue being tried was whether a previously concluded settlement was reasonable. The present case poses the more speculative questions of whether a settlement would have occurred, and if so, whether it would have falled within an expert's range of reasonable settlement value. Because no expert can suppose with any degree of reasonable...