Krzykalski v. Tindall

• Decision Date: 17 April 2018
• Docket Number: A–55 September Term 2016,078744
• Citation: 232 N.J. 525,181 A.3d 981
• Parties: Mark R. KRZYKALSKI and Michele Krzykalski, Plaintiffs–Appellants, v. David T. TINDALL, Defendant–Respondent.
• Court: New Jersey Supreme Court

232 N.J. 525

181 A.3d 981

Mark R. KRZYKALSKI and Michele Krzykalski, Plaintiffs–Appellants,

v.David T. TINDALL, Defendant–Respondent.

A–55 September Term 2016

078744

Supreme Court of New Jersey.

Argued January 30, 2018

Decided April 17, 2018

Kenneth G. Andres, Jr., argued the cause for appellant Mark R. Krzykalski (Andres & Berger, attorneys; Kenneth G. Andres, Jr., Haddonfield, 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, Rochelle Park, on the brief).

JUSTICE SOLOMON delivered the opinion of 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), 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 Doe¹ 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.

Prior to trial, plaintiff moved for a directed verdict against defendant. The trial court denied plaintiff's motion, and the case proceeded to a jury trial. During trial, plaintiff again refused his UM carrier's settlement offer for the full policy limits on the UM claim, and 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. The trial court denied plaintiff's post-verdict motion for a new trial or additur.

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. In the panel's view, precluding fault allocation to known but unidentified defendants would give litigants in plaintiff's position an improper windfall. The appellate panel reasoned that similarly situated plaintiffs could recover all of their damages from the identified defendant and then also receive compensation from their UM carrier for the known but unidentified defendant's share of the fault. A member of the panel, writing separately, concurred in the opinion, stating that allowing the jury to assess the fault of John Doe defendants is proper for a number of reasons: 1) it prevents plaintiffs from strategically delaying their UM claim until after the lawsuit; 2) it allocates fault based on the actual negligence of the various drivers; and 3) it avoids double recovery by plaintiffs.

We granted plaintiff's petition for certification. 229 N.J. 622, 164 A.3d 412 (2017). We also granted amicus curiae status to the New Jersey Association for Justice (NJAJ).

II.

A.

Plaintiff argues that a jury should not be permitted to apportion fault between a named party defendant and an unidentified party who is not represented by counsel. In plaintiff's view, John Doe is not a "true party" to the case under the CNA, and placing John Doe on the jury verdict sheet and allowing fault allocation to John Doe results in a miscarriage of justice.

Plaintiff asserts that the cases relied upon by the Appellate Division are inapposite because they involved named defendants who were dismissed before jury deliberations. Here, plaintiff argues that John Doe's identity was never ascertained and so he never actually became a party to the lawsuit.

Plaintiff raises three additional arguments. First, he argues that allowing fault allocation to John Doe improperly allows identified defendants to present an "empty chair defense"² by blaming unidentified John Doe defendants. Therefore, according to plaintiff, if this Court allows allocation to John Doe defendants, it should require UM carriers to present a defense on behalf of the John Doe defendant. Second, plaintiff asserts that if this Court allows allocation, it should require identified defendants to advise the court and opposing counsel that they will assert John Doe's negligence. Finally, plaintiff claims that allowing allocation to John Doe in this case creates a slippery slope by permitting defendants to assert the negligence of entities outside the litigation.

B.

Defendant argues that it was proper to allocate fault to John Doe because the legislative purpose of the CNA is to promote the fair sharing of the burden of a judgment. In defendant's view, it is the joint tortfeasor status, not the party status, that determines whether allocation is appropriate, and each tortfeasor should pay damages in accordance with the percentage of fault attributed to it by the fact-finder. Thus, according to defendant, because the complaint alleged that he and John Doe were joint tortfeasors, it was proper for the jury to allocate fault both to him and to John Doe. Defendant further stresses that plaintiff should not have been surprised that John Doe was listed on the verdict sheet, given that plaintiff elected to name John Doe as a defendant in the complaint.

Defendant adds that there is no "rule prohibiting the allocation of fault to fictitious parties" and that Bencivenga v. J.J.A.M.M., Inc., 258 N.J. Super. 399, 609 A.2d 1299 (App. Div. 1992), from which that proposition stems, is inapposite. Finally, defendant argues that joinder should not be mandatory because UM carriers already receive notice of litigation and have the option to intervene. Therefore, in defendant's view, there is no reason to force carriers to participate in litigation where they would not do so of their own volition.

C.

The NJAJ argues that the Appellate Division conflated the concept of fictitious parties with the concept of phantom vehicles³ for which there is mandatory insurance coverage in all motor vehicle policies issued in New Jersey. It asks that this Court "clarify and reaffirm" the "long-standing rule barring the jury's assessment of a fictitious party's negligence and the placement of a fictitious party on the verdict sheet." The NJAJ also argues that this Court should adopt a bright-line rule "requiring the joinder of a plaintiff's UM carrier in motor vehicle cases where there is a known and identified defendant driver and a phantom vehicle."

The NJAJ notes that John Doe was never identified during discovery, substituted in as a party to the litigation, or served with process, and stresses that plaintiff's UM insurance carrier never intervened in the case or presented a defense on behalf of John Doe, even though the UM claim was unresolved and the carrier had notice of the litigation. The NJAJ argues that the Appellate Division's decision therefore violates the rule set forth in Bencivenga—that John Doe defendants are not parties for the purpose of fault allocation under the CNA. In the NJAJ's view, the panel improperly established a "blanket" "empty chair" defense available whenever plaintiff names fictitious defendants in a complaint.

III.

A.

"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." Town of Kearny v. Brandt, 214 N.J. 76, 96, 67 A.3d 601 (2013). 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 [JTCL] was enacted to promote the fair sharing of the burden of judgment by joint tortfeasors and to prevent a plaintiff from arbitrarily selecting his or her victim." Holloway v. State, 125 N.J. 386, 400–01, 593 A.2d 716 (1991).

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.⁴ The percentage of negligence or fault of each party shall be based on 100% and the total of all percentages of negligence or fault of all of the parties to a suit shall be 100%." N.J.S.A. 2A:15–5.2(a...