Opinion
DOCKET NO. A-2383-10T3
08-22-2011
GOVERNMENT EMPLOYEES INSURANCE COMPANY, Plaintiff, v. LAURIE MYERS, Defendant-Appellant. ALANA FANZO, Respondent.
James R. Swift, attorney for appellant. Amy F. Loperfido & Associates, attorneys for respondent (Mark G. Esposito, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Grall.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-598-09.
James R. Swift, attorney for appellant.
Amy F. Loperfido & Associates, attorneys for respondent (Mark G. Esposito, on the brief). PER CURIAM
Laurie Myers, the defendant in a declaratory judgment action filed by Government Employees Insurance Company (GEICO), appeals the denial of her motion to amend her pleadings to add respondent Alana Fanzo as a third-party defendant. Myers admits that she sought to add Fanzo as a third-party defendant after the statute of limitations applicable to her personal-injury claim had expired, but argues that the party-misidentification provisions of Rule 4:9-3 permit her proposed amendment to "relate back" to the filing date of her original pleading. Because Myers's mistake was not as to Fanzo's identity, but whether she had a viable prospect of recovery from Fanzo, we affirm.
Myers and her husband lived in an apartment in Millville on a property where Richard Chennette, Fanzo's boyfriend, also rented an apartment. On February 23, 2008, Chennette was moving out of his apartment, and Fanzo brought her car to help him transport his things. Myers and her husband saw Chennette moving and went to confront him about money he owed them. Myers and Chennette began to argue, and Chennette and Fanzo decided to leave. They both got into Fanzo's car; Fanzo drove. While Fanzo was pulling out of the property's driveway, Chennette opened the passenger-side door, striking Myers in the knee. The parties dispute whether Chennette opened the door without provocation or whether Chennette was first attacked by Myers's husband. The police were called and took statements, but they did not issue any summonses. The parties filed complaints against one another in municipal court, but all of the complaints were eventually dismissed by consent.
Apparently believing that Fanzo's car was uninsured, Myers sought uninsured motorist benefits through her insurer, GEICO. GEICO filed a declaratory judgment action on June 18, 2009, disclaiming coverage and alleging that Myers's injuries were due to an uncovered intentional assault. Myers counter-claimed for benefits. At Fanzo's deposition on March 30, 2010, Myers's counsel learned for the first time that Fanzo's car was insured by State Farm at the time of the February 23 incident. The attorney received confirmation of coverage from State Farm on July 1, and he then moved to amend Myers's pleadings to add Fanzo as a third-party defendant on July 23.
In the trial court, Myers admitted that the two-year personal injury statute of limitations, N.J.S.A. 2A:14-2, would bar her claim against Fanzo unless the filing date of her third-party complaint related back under Rule 4:9-3 to the filing date of her original pleadings. She claimed that the rule's requirements were satisfied because Fanzo had informal notice of the action, having been deposed in it, and would not be prejudiced by her addition as a third-party defendant at this date. Moreover, Myers claimed that Fanzo knew she would have been sued if not for Myers's mistake as to whether Fanzo's car was insured. The trial judge denied leave to amend because Myers knew of Fanzo's identity well before the statute of limitations ran. Myers appeals, and we affirm.
We review a trial judge's denial of leave to amend a pleading for abuse of discretion. Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 456-57 (1998). Rule 4:9-3 permits an amended pleading that asserts claims against a new party to relate back to the date of the original pleading — and thus avoid the expiration of the statute of limitations — if three requirements are satisfied. The party seeking leave to amend must show
(1) the claim asserted in the amended complaint arose out of the conduct, transaction, or occurrence alleged or sought to be alleged in the original complaint; (2) the new defendant had sufficient notice of the institution of the action not to be prejudiced in maintaining his or her defense; and (3) the new defendant knew or should have known that, but for the misidentification of the proper party, the action would have been brought against him or her.As the trial judge recognized, the third requirement is dispositive in this case.
[Viviano v. CBS, Inc., 101 N.J. 538, 553 (1986).]
In the cases where our courts have permitted leave to amend because of misidentification, the party seeking leave to amend had been mistaken as to the correct identity of the person responsible for her injuries. For instance, we have relaxed the rule to allow a plaintiff to add a new defendant after the statute of limitations had expired because he had mistakenly named as a defendant the tortfeasor's brother, who had a similar first and last name as the tortfeasor and was in the same line of work. Aruta v. Keller, 134 N.J. Super. 522 (1972). Similarly, we have allowed a plaintiff to add a new defendant after the statute of limitations expired where the plaintiff sued the car's owner, Harry, believing he was the operator that caused plaintiff's injuries, when the operator was in fact Harry's son, Henry. Bradley v. Powles, 90 N.J. Super. 550 (App. Div.), certif. denied, 47 N.J. 422 (1966).
In each of these cases, and the others like them, the party seeking leave to amend believed that a particular person was responsible for her injuries when, in fact, another person was. See Viviano, supra, 101 N.J. at 551-52 (collecting cases). Here, there was no mistake regarding the driver's identity. Myers was aware on the day of the incident that Fanzo was driving the car when Chennette opened the passenger-side door into Myers's knee. Instead, Myers was mistaken as to whether Fanzo had insurance that could pay any judgment rendered against her.
We confronted similar circumstances in Ribeira & Lourenco Concrete Construction, Inc. v. Jackson Health Care Associates, 231 N.J. Super. 16 (App. Div. 1989), aff'd o.b., 118 N.J. 419 (1990). There, a plaintiff sought to implead defendant's surety after a one-year time limitation — similar to a statute of limitations — contained in the surety contract had elapsed. Id. at 20-21. We rejected the claim that Rule 4:9-3 permitted plaintiff's amended complaint to relate back to the date of the original complaint because plaintiff had been mistaken as to whether there was a surety bond posted for defendant. Id. at 26-27. We held that plaintiff failed to satisfy the rule's third requirement because there was nothing in the record to suggest that plaintiff had failed to implead the surety because of a mistake as to the surety's identity. Id. at 26. Instead, plaintiff failed to implead the surety because plaintiff was unaware that there was a surety bond from which it could obtain payment. Id. at 27.
Myers's case is similar. Myers did not fail to join Fanzo because she was unaware of Fanzo's identity as a potential defendant. Instead, Myers failed to join Fanzo because she was unaware that there was an insurance policy covering Fanzo from which Myers could eventually obtain payment. That is not the type of mistake Rule 4:9-3 was designed to address, and the trial court did not err in denying Myers leave to amend her pleadings.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
___________________________
CLERK OF THE APPELLATE DIVISION