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stating that "although not expressly stated in the Rule, it is well-settled that the Rule is unavailable to a party that does not act diligently in identifying the defendant"
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DOCKET NO. A-2636-10T4
10-05-2011
MIKAEL ANDREOLI, as Executor and Executor ad Prosequendum of The Estate of RENE ANDREOLI, Plaintiff-Respondent, v. STATE INSULATION CORPORATION, CALON INSULATION CORPORATION, THE CONDITIONING COMPANY, INC., GARLOCK SEALING TECHNOLOGIES, INGERSOLL RAND CORPORATION, BELL & GOSSETT CORPORATION, DE LAVALE CORPORATION, MADSEN & HOWELL CORPORATION, Defendants, and HESS CORPORATION, individually and as successor to Hess Oil & Chemical Company, Defendant-Appellant.
Carolyn F. O'Connor argued the cause for appellant (Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, attorneys; Ms. O'Connor, of counsel; Joseph T. Hanlon, on the briefs). Jennifer L. Harwood argued the cause for respondent (Keefe Bartels, attorneys; Patrick J. Bartels, of counsel; Ms. Harwood, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Ostrer.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2589-07.
Carolyn F. O'Connor argued the cause for appellant (Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, attorneys; Ms. O'Connor, of counsel; Joseph T. Hanlon, on the briefs).
Jennifer L. Harwood argued the cause for respondent (Keefe Bartels, attorneys; Patrick J. Bartels, of counsel; Ms. Harwood, on the brief). PER CURIAM
On leave granted, defendant Hess Corporation appeals from the trial court's denial of its motion to dismiss on statute of limitations grounds. The trial court had previously permitted plaintiff to name Hess in place of a fictitiously-named defendant roughly two years after the statute of limitations had run in this asbestos-related wrongful death and survivorship action. Hess argued that plaintiff was not entitled to avail himself of fictitious-party practice under Rule 4:26-4, because: (1) in his timely filed complaint, he failed to describe the fictitiously-named defendant with sufficient detail; (2) he failed to exercise due diligence in identifying Hess as a defendant; and (3) Hess would suffer prejudice. We agree, and reverse.
Taking the allegations in the complaint as true, R. 4:6-2(e), Rene Andreoli died from mesothelioma on July 22, 2006. His estate filed its first complaint on March 1, 2007. Although the first complaint did not identify Hess as a defendant, it alleged that Andreoli was exposed to asbestos while working at a Hess-related facility.
During the course of . . . Rene Andreoli's work life, he, was exposed to asbestos while employed at Amerada Hess refinery in Perth Amboy, New Jersey from the late 1970s to the early 1980s, and then at the Amerada Hess facility in Bayonne from 1982 to 1984. He worked for a number of entities at those sites, including but not limited to Star Contracting.
Nonetheless, plaintiff did not name Hess or a related entity as a defendant. The complaint identified various corporations by name and then fictitiously named three categories of defendants: first, defendants "in the business of mining, manufacturing, supplying, installing and/or distributing asbestos containing products, fibers and dust"; second, defendants conspiring with other defendants; and third, defendants "who stand in the shoes of the defendants . . . as successor in interest, alter ego or by other equitable doctrine which makes them responsible for the defendants' liability."
The complaint alleged that the specifically-named and fictitiously-named defendants "negligently mine[d], milled, manufactured, distributed and/or conspired to distribute the aforesaid fibers, dust, particles and products to the plaintiff's employer without warning of the potential dangers. . . ." The complaint also reserved the right to name various specifically-named entities, including Johns-Manville-related entities, then said to be in bankruptcy. The first amended complaint was filed a month later apparently to name an additional potential defendant then in bankruptcy.
Represented by new counsel, plaintiff filed a second amended complaint November 26, 2008 — more than two years after Andreoli's death. The complaint modified the allegations related to Andreoli's relationship to Hess, asserting that he was actually employed by a Hess-related entity, but only for a brief period.
Decedent, Rene Andreoli was employed by Amerada Hess Refinery, Bayonne from 1982 to 1984. In the course of this and other work, plaintiff was exposed to dust from asbestos and asbestos containing products and he has contracted and died from malignant mesothelioma and other serious asbestos related diseases and died on July 22, 2006.
The complaint again identified various corporations or businesses by name, excluding Hess or Hess-related entities. It then named three groups of fictitiously-named "John Doe" defendants: seven John Does were described as various Johns-Manville entities; John Doe eight through fifty were described as unknown entities "who mined, manufactured, sold, marketed, installed or removed, asbestos or asbestos containing products which plaintiff used or was exposed to"; and John Doe 51 through 75 were described as unknown entities who were the alter egos, or who were otherwise responsible for the conduct or liability of the entities, already described as John Doe eight through fifty, "who mined, milled, manufactured, sold, marketed, installed or removed asbestos or asbestos containing products which plaintiff used or to which plaintiff was exposed."
By motion filed on or about May 28, 2010, plaintiff's third counsel sought permission to file a third amended complaint identifying Hess as one of the fictitiously-named John Doe corporations. The proposed complaint alleged that Hess failed to provide a safe work-site, allowed asbestos to be present where Andreoli was employed, and breached its duty to provide safe working conditions and to warn Andreoli of dangers. Regarding where and for whom Andreoli worked, the third amended complaint revived the allegations from the first, and first amended complaints that Andreoli worked at Hess-related job-sites, but was employed by Star Contracting and others. It alleged,
During the course of Rene Andreoli's work life, he was exposed to asbestos while employed at Amerada Hess refinery in Perth Amboy, New Jersey from the late 1970s to the early 1980s, and then at the Amerada Hess facility in Bayonne from 1982 to 1984. He worked for a number of entities at those sites, including but not limited to Star Contracting.
The motion was supported by a certification of counsel that simply summarized the proposed amendment, reviewed the dates when earlier versions of the complaint were filed, and noted that counsel had substituted in seven months earlier. Counsel also stated, without apparent personal knowledge, the just-quoted allegations regarding where and for whom Andreoli worked. The motion was not served on Hess. The court granted the motion as unopposed by order of July 19, 2010.
After being served with the third amended complaint, Hess moved in October 2010 in lieu of an answer to dismiss based on a statute of limitations defense. R. 4:6-2(e). We have not been provided with the papers filed in support and opposition of the motion. Thus, we have before us no cognizable evidence of plaintiff's alleged diligence in identifying Hess as a premises defendant.
However, at oral argument, plaintiff's counsel alleged that the deposition of a former Hess employee in March 2009, when plaintiff was represented by prior counsel, is "what gave rise I believe to the knowledge of Hess as the viable defendant in this case." He asserted, "We takeover I believe in the Fall of 2009 or later. And then in our review we come to understand the implication of Mr. Beck's testimony and that Hess would indeed be a viable defendant."
Hess's counsel argued that the allegations in the first complaint reflected that plaintiff was aware that Hess was a viable premises defendant. He also referred to deposition statements by Andreoli's son (plaintiff here) reflecting his knowledge, while his father was still alive, that his father worked at Hess while employed by Star Contracting. However, the court declined to allow Hess to supplement the record with the deposition transcript.
In denying the motion, the court found that plaintiff had adequately described a fictitiously-named premises defendant. Although not "the example of clarity," the court held that reference to parties supplying and installing asbestos could encompass a premises defendant. With regard to the diligence of plaintiff in identifying Hess, the court referred generally to the difficulty that environmental tort victims, or their family members, commonly face in recalling details of a victim's exposure. The court also referred to the time-consuming discovery typical of such cases. Regarding the issue of prejudice, the court concluded that Hess could re-depose any living witnesses. As Andreoli died before the suit was filed, he was never deposed, so Hess was not prejudiced in that respect. Thus, the court concluded, "Hess is not prejudiced at all in terms of defending against this case." The court's denial of Hess's motion was memorialized in an order of December 17, 2010. We granted leave to appeal to Hess.
In denying the motion to dismiss on statute of limitations grounds, the trial court relied on the pleadings and resolved no disputed issues of fact. Consequently, the appeal raises purely legal issues that we review de novo. Estate of Hainthaler v. Zurich Commercial Ins., 387 N.J. Super. 318, 325 (App. Div.), certif. denied, 188 N.J. 577 (2006). Having considered the arguments in light of the record and applicable standards, we conclude that plaintiff was not entitled to avail himself of fictitious-party pleading in naming Hess as a defendant in July 2010. Consequently, the complaint against Hess, filed over four years after Andreoli contracted mesothelioma and died, should have been dismissed with prejudice on statute of limitations grounds. See N.J.S.A. 2A:14-2 (two-year limitations period for survivorship claims) and N.J.S.A. 2A:31-3 (two-year limitations period for wrongful death claims).
We begin our analysis with a review of the fictitious-party practice rule. Rule 4:26-4 provides:
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.
According to its plain language, and judicial interpretation, a plaintiff invoking fictitious-party practice must satisfy four requirements. First, the plaintiff must not know the identity of the defendant said to be named fictitiously. R. 4:26-4. Second, the fictitiously-named defendant must be described with appropriate detail sufficient to allow identification. Ibid. Third, a party seeking to amend a complaint to identify a defendant previously named fictitiously must provide proof of how it learned the defendant's identity. Ibid. Fourth, although not expressly stated in the Rule, it is well-settled that the Rule is unavailable to a party who does not act diligently in identifying the defendant. Matynska v. Fried, 175 N.J. 51, 53 (2002); Claypotch v. Heller, Inc., 360 N.J. Super. 472, 479-80 (App. Div. 2003); Mears v. Sandoz Pharms., Inc., 300 N.J. Super. 622, 629-30 (App. Div. 1997). The practice is unavailable to a defendant who, through diligence, could have identified a defendant before filing the complaint. Claypotch, supra, 360 N.J. Super. at 479-80; Mears, supra, 300 N.J. Super. at 629. The plaintiff must also diligently seek to identify the defendant before the limitations period has expired or within a reasonable time thereafter. Matynska, supra, 175 N.J. at 53; Mears, supra, 300 N.J. Super. at 629.
The purpose of the rule is "to protect a diligent plaintiff who is aware of a cause of action against a defendant but not the defendant's name, at the point at which the statute of limitations is about to run." Greczyn v. Colgate-Palmolive, 183 N.J. 5, 17-18 (2005). Upon learning the real name of a defendant, the diligent plaintiff may seek permission to file an amended complaint, specifically identifying the defendant who was previously named fictitiously. The filing of the amended complaint does not relate back to the date of the initial complaint with the fictitiously-named party. "Fictitious-party practice renders the initial filing against the identified but unnamed defendant timely in the first instance, subject only to diligent action by the plaintiff to insert defendant's real name." Id. at 17, n.3.
A showing of diligence is a threshold requirement for resort to fictitious-party practice. Matynska, supra, 175 N.J. at 53 (referring to the "due diligence threshold"). Moreover, in limited circumstances, prejudice to a defendant may be considered in evaluating whether a plaintiff has acted diligently. See Claypotch, supra, 360 N.J. Super. at 480. In addition, a party seeking to invoke fictitious-party practice bears the burden of demonstrating compliance with the Rule. See Giovine v. Giovine, 284 N.J. Super. 3, 38 (App. Div. 1995) (Skillman, J.A.D., concurring and dissenting) ("A party who seeks to avoid the bar of a statute of limitations by invocation of the discovery rule or other comparable doctrine has the burden of proof." (citing Lopez v. Swyer, 62 N.J. 267, 276 (1973))).
On each of the four requirements, plaintiff falls short. First, according to the allegations in the first complaint filed within the statute of limitations, Andreoli worked at Hess-related facilities while employed by other entities. The third amended complaint simply repeated virtually verbatim the allegations of the first complaint regarding where and for whom Andreoli worked. Thus, plaintiff was apparently aware that Hess maintained premises where Andreoli came into contact with asbestos. See Washington v. Sys. Maint. Corp., 260 N.J. Super. 505, 515-16 (Law Div. 1992) (finding fictitious-party practice unavailable because plaintiff knew the identity of defendant).
The record contains no cognizable evidence regarding why plaintiff chose not to name Hess from the outset. If plaintiff believed Hess was Andreoli's employer, he may have omitted Hess because of the exclusivity bar of the Workers' Compensation Act, N.J.S.A. 34:15-8. However, as we have noted, plaintiff alleged in the first complaint that during Andreoli's exposure at Hess, Andreoli was employed by Star Contracting and others and does not allege Hess-related employment. Even in the second amended complaint, which alleged Hess-related employment, the period alleged was only between 1982-1984.
Moreover, plaintiff failed to describe adequately a fictitiously-named defendant who was allegedly liable for negligently maintaining a job site. We differ with the trial court's conclusion that the complaint, even read indulgently, could be fairly construed to encompass a premises defendant within a group of fictitiously-named asbestos suppliers or installers. See Greczyn, supra, 183 N.J. at 12 (holding that plaintiff satisfied the rule by fully identifying defendant as the person who designed a certain staircase); Viviano v. CBS, Inc., 101 N.J. 538, 555 (1986) (addressing the need for specificity in describing fictitious parties); Lawrence v. Bauer Publ'g & Printing Ltd., 78 N.J. 371, 376 (1979) (Pashman, J., concurring) (fictitiously naming composer and writer of allegedly defamatory article does not encompass source of information used by writer).
In Viviano, supra, the plaintiff sought to name the maker of a defective component of a machine, after having fictitiously named only the manufacturer of the machine. Although the Court permitted the claim based on the "singular circumstances" of the case, the Court stated that in the future, a party seeking to sue the manufacturer of a machine's defective component should fictitiously describe the component designer and manufacturer. Accordingly, we conclude that plaintiff failed to describe Hess appropriately as a premises defendant, when it described other fictitiously-named defendants.
Plaintiff here also failed to provide the court with the required affidavit "stating the manner" in which plaintiff obtained information about the identity of the hitherto fictitiously-named defendant. R. 4:26-4. This is not a technical deficiency that may be overlooked. The affidavit requirement is essential to enable a trial court to assess whether a movant has made even a prima facie showing of diligence sufficient to invoke fictitious-party practice.
In support of plaintiff's motion to amend, counsel's certification provided no information about how plaintiff purportedly identified Hess. In response to Hess's motion to dismiss, plaintiff's counsel asserted in oral argument that Hess was identified as a result of a deposition of a former Hess employee in March 2009. Only excerpts of the deposition transcript have been included in the record before us. In that excerpt, the former employee stated that between 1977 and 1979, Andreoli worked as a contractor removing insulation at a Hess terminal, through Andreoli's firm, Star Contracting. Thus, it simply confirmed what was alleged in the original complaint.
Moreover, the record lacks evidence that plaintiff exercised due diligence in discovering Hess's identity before filing the complaint, or before the statute of limitations expired. The record also lacks evidence that the plaintiff exercised due diligence in seeking amendment of the complaint reasonably soon after discovering the fictitiously-named defendant's real identity. Plaintiff presented the court with no cognizable evidence of its diligence. Even if one assumes for the sake of argument that plaintiff only learned that Andreoli worked for Star Contracting at Hess-related facilities after the deposition of the former Hess employee in March 2009, plaintiff provided no excuse for waiting until the end of May 2010, a year and two months later, to seek to amend his complaint to name Hess as a defendant. Once the fictitious defendant is identified by name, the plaintiff must act promptly to amend the complaint. Johnston v. Muhlenberg Reg'l Med. Ctr, 326 N.J. Super. 203, 207-08 (App. Div. 1999) (four-month delay in moving to amend after discovery not diligent).
Finally, we reject plaintiff's argument that the trial court appropriately denied Hess's motion to dismiss because Hess would suffer no prejudice. First, Hess would suffer prejudice consisting of the loss of repose afforded by the statute of limitations. "There cannot be any doubt that a defendant suffers some prejudice merely by the fact that it is exposed to potential liability for a lawsuit after the statute of limitations has run." Mears, supra, 300 N.J. Super. at 631.
Based on our ruling, we need not address Hess's further argument that it suffered prejudice by not having advance notice of the deposition of the former employee because, allegedly, he was a member of the litigation control group.
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Second, plaintiff misconstrues the role of prejudice in a fictitious-party analysis. As we have discussed, a plaintiff seeking to utilize fictitious-party practice must, as a threshold matter, exercise due diligence. See Matynska, supra, 175 N.J. at 53; Claypotch, supra, 360 N.J. Super. at 479-80 (stating that defendant may use fictitious name "only if a defendant's true name cannot be ascertained by the exercise of due diligence prior to filing the complaint.")(emphasis added); Mears, supra, 300 N.J. Super. at 630 (stating that if a plaintiff did not exercise diligence and a court allowed an amendment, it would violate the purpose of the statute of limitations).
In limited circumstances, we have held that the nature of prejudice to a defendant may be considered as a factor in determining whether due diligence has been exercised. "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." Claypotch, supra, 360 N.J. Super. at 480. Presumably, as a defendant's harm from delay increases, a diligent plaintiff must move with commensurately greater speed.
The claim in Claypotch involved personal injuries caused by an industrial machine. The plaintiff initially sued Heller, reasonably believing that it manufactured the machine, as Heller's name prominently appeared on it; and the plaintiff also sued fictitiously-named defendants described as other manufacturers, distributors, designers, repairers and sellers of the machine. Id. at 478. Heller filed a third-party complaint against FICEP, S.p.A., without expressly asserting that FICEP was the manufacturer; and FICEP filed an answer, without identifying itself as manufacturer. Id. at 478-80. However, sometime after FICEP filed its answer, Claypotch learned that FICEP was indeed the manufacturer. Id. at 482. Claypotch's counsel then delayed more than nine months before moving to name FICEP in place of a fictitiously-named defendant. Ibid.
We found that the plaintiff had acted with sufficient diligence, particularly inasmuch as FICEP was already in the case, and had notice of the plaintiff's injury, and its potential liability. Id. at 483. Unlike cases where the filing of the amended complaint is the first notice of a claim to a defendant who was previously named fictitiously, we held that granting Claypotch permission to name FICEP did not implicate the statute of limitation's policy of repose. Id. at 482-83. In short, FICEP did not suffer the prejudice generally inherent in delaying the naming of a defendant after the statute of limitations has run. Id. at 483.
By contrast, in this case, Hess indisputably suffers that prejudice, as it was not previously named as a third-party defendant. Therefore, the "policy of repose" is implicated. Moreover, based on our review of the facts, it is evident that plaintiff here has not exercised the level of diligence exercised by the plaintiff in Claypotch.
In sum, plaintiff was not entitled to identify Hess in the third amended complaint as one of the defendants who were named fictitiously before the statute of limitations had expired. Consequently, Hess may not be deemed to have been named before the expiration of the statute of limitations. The motion to dismiss on statute of limitations grounds should have been granted.
Reversed and remanded to the trial court for entry of an order dismissing plaintiff's complaint against Hess with prejudice.