SUPERIOR
COURT OF NEW JERSEY
APPELLATE
DIVISION
WILLIAM NEEDHAM and SUSAN
NEEDHAM,
v.
MARCEY A. HOBBS,
and
MAY FUNERAL HOMES, INC.,
_____________________________________________________
Telephonically Argued February 22,
2012 – Decided March 14, 2012
Before Judges Fisher and Nugent.
On appeal from the Superior Court of
New Jersey, Law Division, Gloucester County, Docket No. L-378-07.
Christie R. Nastasi argued the cause
for appellants (Hoffman DiMuzio, attorneys; Ms. Nastasi, on the brief).
James J. Breslin, III, argued the
cause for respondent (Law Offices of Barnaba & Marconi, attorneys; Mr.
Breslin, on the brief).
PER CURIAM
Plaintiff
William Needham was injured when his automobile collided with an automobile
driven by defendant Marcey A. Hobbs, who was a mourner in a procession being
led by a funeral home through Delran on March 7, 2005. Based on pre-filing research,
plaintiffs assumed that W.R. Woody Funeral Home, Inc. (Woody) was leading the
funeral procession and it was not until approximately four years after the
accident that plaintiffs determined that the procession was led by May Funeral
Homes, Inc. (May). After
permitting plaintiffs to replace a fictitious defendant with May, the trial
judge granted May's motion to dismiss, holding that plaintiffs did not exercise
due diligence in discovering May's identity and that May would be prejudiced by
the late amendment. Because the
record supports plaintiffs' claim of due diligence and because there was
insufficient evidence to support the judge's conclusion that May would be
prejudiced if the action were to continue against it, we vacate the order of
dismissal and remand for further proceedings.
Plaintiff
commenced this action on March 5, 2007, nearly two years after the automobile
accident in question.
A police
report prepared after the accident suggested that Hobbs was in a funeral
procession traveling south on Route 130 in Delran.
Needham was waiting at a light at Route 130's intersection
with Chester Avenue.
Apparently,
when the light turned green, Needham's automobile proceeded into the
intersection and collided with Hobbs's automobile.
The record on appeal provides little other information about
the accident.
In
their original complaint, plaintiffs named Hobbs and Woody as defendants, as
well as fictitious persons and entities.
Prior to filing the complaint, plaintiffs' counsel determined that Woody
had conducted a funeral procession on Route 130 on the day in question. In answering the complaint, Woody
denied the allegation that it was "the funeral home responsible for
organizing and supervising the funeral procession" in which Hobbs was a
participant because that allegation constituted "a conclusion of
law." In its answer, Woody
claimed insufficient knowledge to either admit or deny the complaint's other
chief allegations. The depositions
of four individuals who worked the funeral procession for Woody on the date in
question were taken in March 2008.
These four Woody employees testified they were unaware that a vehicle in
their procession was in an accident.
Hobbs
made no appearance in the case.
Default was entered against her and she did not respond to a subpoena
seeking her testimony. Without
information from Hobbs and without affirmative proof from Woody that it did not
lead the procession in question, plaintiffs continued to assume that all
necessary parties were before the court.
Interestingly, in March 2009, an arbitrator found Hobbs 65%, Needham
25%, and Woody 10% responsible for the accident. Apparently, Woody was unable or made no attempt to
demonstrate at that time that it had no involvement in the procession.
Hobbs
finally, on June 12, 2009, appeared for a deposition and provided the name of
the decedent whose funeral she had attended on the day in question.
As a result, plaintiffs' counsel was
able to determine that May and not Woody had conducted the funeral
procession.
Plaintiffs thereafter
consented to a dismissal of the action against Woody and moved for leave to
replace one of the fictitious defendants with May.
Leave was granted on July 1, 2009.
May moved for dismissal.
For reasons set forth in a written decision, the trial judge
granted the motion and, once finality was achieved, plaintiffs appealed.
Plaintiffs'
appeal turns on whether the filing of the amended pleading, in which May was
first named as a defendant, should "relate back" to the date the
original complaint was filed. See,
e.g., Greczyn v. Colgate Palmolive, 183 N.J. 5, 11 (2005); Viviano
v. CBS, Inc., 101 N.J. 538, 548 (1986); Farrell v. Votator Div.
of Chemetron Corp., 62 N.J. 111, 120 (1973). Rule 4:26-4 allows a plaintiff
to commence an action "against the defendant under a fictitious name,
stating it to be fictitious and adding an appropriate description sufficient
for identification." There is
no doubt that plaintiffs complied with this aspect of the Rule. The Rule, however, may be
invoked "only if a defendant's true name cannot be ascertained by the
exercise of due diligence prior to filing the complaint." Claypotch v. Heller, Inc., 360 N.J.
Super. 472, 479-80 (App. Div. 2003).
In seeking dismissal, May asserted that plaintiffs failed to act with
due diligence and that it would be prejudiced if the action were permitted to
continue.
In
vacating the order of dismissal, we first conclude that the record supports
plaintiffs' argument that they exercised due diligence in seeking to learn the
name of the funeral home that was conducting the procession. That investigation uncovered the fact
that Woody conducted a funeral procession south on Route 130 on the day in
question; it was logical for plaintiffs to assume that Woody was the proper
funeral home to be named. In fact,
that conclusion was further cemented by Woody's response to the complaint. Woody neither admitted nor denied its
involvement in the funeral procession in question. And four Woody employees, who worked a funeral procession on
that day, took that same position.
Pending clearer evidence, plaintiffs remained justified in proceeding
against Woody, a fact further suggested by an arbitrator's determination that
Woody was 10% responsible for the accident. Plaintiffs were entitled to adhere to their belief that
Woody was the correct funeral home until Hobbs, who had permitted the case to
proceed in her absence, finally came forward to give deposition testimony. Once her testimony revealed the facts
necessary to exonerate Woody and implicate May, plaintiffs expeditiously moved
for leave to join May as a party.
Plaintiffs'
due diligence alone, however, is insufficient to justify reliance on the
relation-back doctrine. The
dismissal of May was appropriate if May would be prejudiced by the late
assertion of the claim. The
prejudice to which the Rule concerns itself is not a defendant's
exposure "to potential liability for a lawsuit after the statute of
limitations has run." Mears
v. Sandoz Pharm., Inc., 300 N.J. Super. 622, 631 (App. Div.
1997). "[A]bsent evidence
that 'the lapse of time has resulted in a loss of evidence[,] impairment of
ability to defend' or 'advantage' to plaintiffs, '[j]ustice impels strongly
towards affording the plaintiffs their day in court on the merits of their
claim[.]'" Claypotch, supra,
360 N.J. Super. at 482 (quoting Farrell, supra, 62 N.J.
at 122). On this aspect, the trial
judge stated only the following:
Surely, the memories of the witnesses
as to the occurrence have faded in the intervening years. Further, the late amendment has
prejudiced May Funeral Homes by preventing it from participating in meaningful
discovery.
These conclusions were not based on
any sworn information; the judge simply assumed memories had faded and May's
ability to respond to plaintiffs' allegations would be unduly hampered.
We
conclude that the trial judge prematurely found prejudice. Indeed, an understanding of the
prejudicial effect of the late joinder is not entirely clear because the matter
has not been examined in light of the nature of plaintiffs' claim against
May. The extent to which a funeral
home may be liable for accidents involving an automobile in a funeral
procession has not been widely considered. See Ronald Schmidt, Liability for Injury or
Damages Resulting from Operation of Vehicle in Funeral Procession or in
Procession Which Is Claimed to Have Such Legal Status, 52 A.L.R.5th
155 (1997). We considered the
question in Giantonnio v. Taccard, 291 N.J. Super. 31, 41 (App.
Div. 1996), concluding that, in "undertaking to organize and lead [a]
funeral procession," a funeral home "arguably owe[s] a duty to
refrain from creating an unreasonably hazardous condition for those
participating in the procession."
We made no attempt, however, to further define the scope of
liability. Id. at 42
(stating that "[w]e offer no opinion respecting the substantive content of
that duty, i.e., the standard of care owed by the funeral home").
We
have not since considered that standard of care nor need we do so here. Our holding is limited to recognizing
that the extent to which May may be prejudiced by its late joinder is
inexorably linked to its ability to defend on the question of whether it owed a
duty to plaintiffs and, if so, what that duty might be. Until that question is addressed and
adequately answered, any conclusion as to whether May would be prejudiced by
the continuation of the suit is merely speculative.
The
second aspect of the judge's determination that May would be prejudiced by the
late joinder -- i.e., May was prevented from engaging in meaningful discovery
-- is within the judge's power to remedy.
Although discovery end dates are important, a judge remains empowered
when justice requires to take appropriate steps to prevent a party from being
prejudiced notwithstanding the age of the case or other court-imposed
barriers. Tucci v. Tropicana
Casino and Resort, Inc., 364 N.J. Super. 48, 53 (App. Div. 2003); see
also Leitner v. Toms River Reg'l Sch., 392 N.J. Super. 80, 93
(App. Div. 2007); Ponden v. Ponden, 374 N.J. Super. 1, 10-11
(App. Div. 2004), certif. denied, 183 N.J. 212 (2005). If, upon further examination, the judge
finds no other basis for concluding that May will be prejudiced, May should be
permitted a reasonable period of time to conduct whatever discovery may be
appropriate in light of these circumstances.
Absent
a finding that May would be prejudiced in the manner discussed above,
"[j]ustice impels strongly towards affording the plaintiffs their day in
court on the merits of their claim[.]" Farrell, supra, 62 N.J. at 122.
The
order of dismissal is vacated and the matter remanded for further proceedings
in conformity with this opinion.
We do not retain jurisdiction.
