DARRIN YOHE VS. ROBERT CURLEY (L-0184-16, CAMDEN COUNTY AND STATEWIDE) ( 2020 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-3323-18T1
    DARRIN YOHE,
    Plaintiff-Appellant,
    v.
    ROBERT CURLEY,
    Defendant.
    ______________________
    Argued telephonically June 2, 2020 –
    Decided July 2, 2020
    Before Judges Accurso and Rose.
    On appeal from the Superior Court of New Jersey,
    Law Division, Camden County, Docket No.
    L-0184-16.
    Logan M. Terry argued the cause for appellant (Logan
    M. Terry, attorney; Daniel B. Zonies and Logan M.
    Terry, on the briefs).
    Francis X. Ryan argued the cause for respondent
    Lauren Curley (Green Lundgren & Ryan, PC,
    attorneys; Francis X. Ryan, on the brief).
    PER CURIAM
    The only issue on this appeal is whether the trial court appropriately
    applied its discretion in denying plaintiff Darrin Yohe's motion to amend his
    complaint, after the running of the statute of limitations, to substitute
    defendant Robert Curley's daughter for the driver of the car which rear-ended
    plaintiff, identified as Jane Doe in his complaint, under Rule 4:26-4, the
    fictitious party rule. Based on defendant's delay in identifying his daughter as
    the driver of the car, as he was obligated to do in his answers to Form C
    interrogatories, and the lack of any prejudice to defendant, his daughter, or
    their insurance carrier, we conclude the judge misapplied his discretion in
    denying plaintiff's motion to amend his complaint, resulting in the dismissal of
    his cause of action on summary judgment. Accordingly, we reverse.
    The facts are straightforward and easily summarized. Plaintiff was
    stopped at a red light when he was rear-ended by a car driven by defendant's
    daughter, Lauren Curley. Neither driver notified the police. They merely
    exchanged insurance information, which did not include the driver's name, and
    continued on their respective ways. Plaintiff used the insurance information
    the driver provided him to report the accident to Allstate, defendant's insurance
    carrier, the following day. Allstate took plaintiff's recorded statement the
    A-3323-18T1
    2
    same day. Allstate acknowledged the claim in a letter to plaintiff's counsel
    about a month later.
    Plaintiff filed suit fifteen months after the accident, well within the
    statute of limitations, naming defendant Robert Curley as the owner of the car
    that hit him and identifying the driver, alleged to be defendant's agent, as Jane
    Doe. Plaintiff could not effect service on defendant, and obtained an order
    permitting substituted service on Allstate. No answer was filed on behalf of
    defendant and plaintiff obtained entry of default. After the running of the
    statute of limitations, Allstate obtained plaintiff's consent to vacate the default
    and filed an answer to the complaint on behalf of defendant. In the answer,
    defendant admitted ownership of the car, but denied the driver, whom he did
    not identify, was acting as his agent. Defendant did not serve answers to Form
    C interrogatories as required by Rule 4:17-1(b)(2).
    Plaintiff subsequently obtained leave to amend his complaint to add
    property damage counts for the injury and death of his Chihuahua, which was
    riding with him at the time of the accident. It was only after plaintiff served
    his amended complaint that defendant served his answers to Form C
    interrogatories, at least sixteen months after having been served with the
    complaint, and ten months after having filed his answer. Inexplicably,
    A-3323-18T1
    3
    however, the interrogatories were not answered by defendant, but by Allstate's
    claims representative. The claims representative did not identify Lauren
    Curley as a person with relevant knowledge of the accident.
    It was not until three months later, after defendant had opposed the
    reinstatement of plaintiff's complaint, which had been dismissed without
    prejudice for failure to make discovery, that defendant served "corrected
    interrogatories," again answered by the claims representative and not
    defendant, that identified Lauren Curley as the driver of the car that rear -ended
    plaintiff. Defendant, however, failed to provide her address as required.
    Defendant thereafter obtained an order again extending discovery for four
    months in order to take plaintiff's deposition and schedule an independent
    medical exam.
    Following the end of that extended discovery period, defendant moved
    for summary judgment dismissing plaintiff's complaint based on his un-
    involvement in the accident. See Fu v. Fu, 
    160 N.J. 108
    , 118 (1999) (noting
    "New Jersey adheres to the common-law rule that the owner of a motor vehicle
    is not liable for the negligence of a permissive user unless the driver is acting
    as the owner's agent or employee"). The filing of that motion prompted
    plaintiff's counsel to move to amend plaintiff's complaint to substitute Lauren
    A-3323-18T1
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    Curley for the Jane Doe driver, which he certified he had intended to do
    earlier. Counsel noted, however, that his delay could not have prejudiced
    defendant, who was "at all times" aware that Lauren Curley was the driver
    involved in the accident "and defended the case on that basis." Defendant
    opposed the motion, arguing plaintiff had not been diligent in learning the
    identity of the driver.
    Both motions were heard on the same day. The court denied plaintiff's
    motion to amend the complaint finding it not "even a close call." The judge
    noted the "accident happened on [October] 1st of 2014. This motion was filed
    December 24th of 2018, so it's more than four years, and it's not as though this
    is a hit and run driver. There was a young woman that's the daughter of the
    driver whose identity was known." The judge noted "there has to be some
    showing of . . . diligence of attempting to find this driver under 4:26-4."
    Finding there was "not the diligence required to allow this amendment of the
    family member after four-and-a-half years," the court denied the motion, and
    granted defendant's motion for summary judgment.
    On the motion for reconsideration, plaintiff's counsel detailed
    defendant's failure to timely answer the complaint or identify Lauren Curley as
    a person with knowledge, and that when "corrected" answers were finally
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    provided identifying her, defendant still failed to provide her address as
    required. Defendant's counsel acknowledged the failures of his own office to
    timely provide discovery and, specifically, the failure to identify the driver of
    the car, but argued plaintiff failed to exercise reasonable diligence to ascertain
    her identity and that defendant would be prejudiced by the effect the accident
    would have on his insurance rates. The court denied the motion, stating "it
    would have been nice maybe if Allstate would have reached out and said
    something to [plaintiff], but it's not Allstate's obligation to do the necessary
    investigation that's needed."
    Although a trial court's determination of whether to permit amendment
    of a pleading is usually reviewed for abuse of discretion, Franklin Med.
    Assocs. v. Newark Pub. Schs., 
    362 N.J. Super. 494
    , 506 (App. Div. 2003),
    "whether a statute of limitations applies in a given case is ordinarily a legal
    matter" subject to our de novo review, Baez v. Paulo, 
    453 N.J. Super. 422
    , 436
    (App. Div. 2018).
    Fictitious party practice in New Jersey is governed by Rule 4:26-4. The
    Supreme Court has construed the rule "to permit a plaintiff who institutes a
    timely action against a fictitious defendant to amend the complaint after the
    expiration of the statute of limitations to identify the true defendant ," which
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    6
    amended pleading will "relate[] back to the time of filing of the original
    complaint, thereby permitting the plaintiff to maintain an action that, but for
    the fictitious-party practice, would be time-barred." Viviano v. CBS, Inc., 
    101 N.J. 538
    , 548 (1986). The benefit of the rule, however, is reserved for
    plaintiffs who have exercised "due diligence in ascertaining the fictitiously
    identified defendant's true name and amending the complaint to correctly
    identify that defendant." Claypotch v. Heller, Inc., 
    360 N.J. Super. 472
    , 480
    (App. Div. 2003). As we recently explained in Baez, "[i]n essence, a plaintiff
    relying on a fictitious pleading must demonstrate two phases of due diligence
    in order to gain the tolling benefits of the rule," that is, before filing his
    original complaint with a Jane Doe defendant and after, when amending his
    complaint to substitute Doe's real name. 453 N.J. Super. at 439.
    The trial court erred in not focusing on each phase. Because no police
    report was filed and the insurance card the driver offered to plaintiff listed
    only Robert Curley's name, we would be hard pressed to find plaintiff needed
    to do more than what he did, which was to promptly report the accident to the
    driver's insurance carrier and provide it his version of the accident. We note
    defendant has not suggested any specific avenue of inquiry that would have
    been successful in identifying the driver under the circumstances.
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    Further, although the record is far from developed, we note that both
    sides apparently had difficulty finding even Mr. Curley. Plaintiff's counsel
    could not effect service, and had to obtain an order for substituted service on
    the Commissioner of Banking and Insurance. See N.J.S.A. 17:32-2(c).
    Defendant's counsel represented to the trial court on the motion for
    reconsideration that he "did have contact with Mr. Curley at the outset when
    [counsel] got the case. At some point, there was no contact after that."
    That, of course, leads to what occurred after the filing of the complaint
    when plaintiff's counsel attempted to learn the identity of the driver. As we
    noted, defendant did not serve answers to Form C interrogatories for at least
    sixteen months after having been served with the complaint, ten months after
    having filed his answer, after plaintiff agreed to permit the vacation of the
    default. Moreover, the interrogatories were not answered or signed by Mr.
    Curley, but by an Allstate claims representative, who failed to identify Lauren
    Curley as the driver. Defendant did not identify the driver for another t hree
    months, when he sent "corrected" answers, also signed by the claims
    representative, after plaintiff's counsel complained to him about defendant's
    failure to disclose her identity.
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    8
    This was not a situation in which "it would have been nice maybe if
    Allstate would have reached out and said something" to plaintiff. In
    representing Mr. Curley — to the extent of having its claims representative
    swear answers to the interrogatories directed to him — it had a clear obligation
    to disclose promptly the name and address of its insured driver, Lauren Curley.
    Its failure to do so until well after the statute had run, and its opposition to
    plaintiff's motion to amend his complaint to identify her, notwithstanding that
    Allstate had long known her identity and defended the case accordingly,
    suggests "that defense counsel [was] protecting the interests of his carrier"
    more so than that of his titular client. Fede v. Clara Maass Hosp., 
    221 N.J. Super. 329
    , 332 (Law Div. 1987).
    Any review of this record makes immediately obvious that neither side
    diligently pursued its discovery obligations. But we see no advancement of
    the principles underlying our fictitious party practice in depriving plaintiff of
    his cause of action based on his derelictions while rewarding Allstate for its
    own.
    Limning the parameters of New Jersey's fictitious party practice in
    Farrell v. Votator Div. of Chemetron Corp., 
    62 N.J. 111
    , 122-23 (1973), the
    Court wrote that "[j]ustice impels strongly towards affording the plaintiffs
    A-3323-18T1
    9
    their day in court on the merits of their claim; and the absence of prejudice,
    reliance or unjustifiable delay, strengthens the conclusion that this may fairly
    be done in the matter at hand 'without any undue impairment of the two-year
    limitation or the considerations of repose which underlie it'" (quoting Fernandi
    v. Strully, 
    35 N.J. 434
    , 451 (1961)). So too here. While plaintiff's counsel
    "could have done more," our review of the record convinces us he "did
    enough" in these circumstances under well-settled law. Viviano, 
    101 N.J. at 56
    . We accordingly reverse and remand for further proceedings not
    inconsistent with this opinion. We do not retain jurisdiction.
    Reversed.
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