Crispin v. Volkswagenwerk, A.G.

476 A.2d 250, 96 N.J. 336, 1984 N.J. LEXIS 2690

• Court: Supreme Court of New Jersey
• Decided: June 13, 1984
• Status: Published

Opinions

The opinion of the Court was delivered by

O’HERN, J.

Shorn of its procedural complexities, this case presents two issues for decision: (1) Should the entire controversy doctrine be extended to compel joinder of parties, and if so, should it be extended retroactively, thus barring a later suit against a tortfeasor intentionally omitted in an original action? and (2) Should an attorney’s tactical delay of thirteen months in serving a summons on the omitted tortfeasor, in violation of the ten day rule, R. 4:4-1, require that the client’s claim be dismissed with prejudice? We hold that the paramount policies of our law require in both instances that the plaintiff be afforded an opportunity to have the claim adjudicated on the merits. We further find that the trial tactics employed by plaintiff’s counsel were questionable and refer the matter to the Office of Attorney Ethics for possible disciplinary action.

At the age of 27, John Crispin was paralyzed as a result of a December 10, 1977 multi-car highway accident. He alleges that the 1971 Volkswagen he was operating was defectively designed and that the Volkswagen defendants fraudulently concealed this defect from the driving public. He suffered a fracture of the spine causing permanent quadriplegia, and the loss of sexual, bladder, and bowel functions. He also suffered from amnesia and respiratory loss and was seriously disfigured and scarred. He seeks compensation for these injuries and the pain and suffering caused by them. His wife sues for her own loss of his love and companionship. Hereafter our references to “plaintiff” embrace both of their claims.

- The December 1977 accident involved three cars: one driven by plaintiff Crispin; one by Victoria Rapicka with a passenger, Mary Lothrop; and the third driven by Joseph Morrison. Crispin’s car entered a southbound lane of the Garden State Parkway from a construction site near milepost 136.5 in Clark, Union County. His car was struck in the rear by Rapicka’s and hers, in turn, by the Morrison car.

This accident spawned many lawsuits, but for our purposes only three are germane.¹ The first proceeding, conducted in Union County, was a predicate action to the other two. In Union County, Crispin, Lothrop, and Rapicka all filed separate suits against the various parties, including the New Jersey Department of Transportation (DOT), which maintains that section of the Parkway, and S.J. Groves & Sons Company (Groves), the construction contractor on the site. The cases were consolidated in February 1979.

Volkswagen was not originally named as a defendant in any of the suits filed in Union County in 1978 since no party was apparently aware of a possible defect in the Crispin car. However, on November 8, 1979, the ABC television show “20/20” reported that the Volkswagen Beetle had a design defect referred to as an “ejector seat.” As a result of a faulty seat track, there was a tendency for the front seat to tear loose and collapse, causing the front seat occupants to be hurled toward the heavily weighted engine structure in the rear.

Crispin’s attorney became aware of the “20/20” report shortly thereafter. He asserts that he made diligent efforts to trace the car, which he believed to have been sold for salvage, in order to determine whether the seat had in fact been torn up in this accident and to gather expert evidence for trial. He asserts that these efforts were unproductive in the short run, leading him, in uncertainty, to file a complaint in Bergen County on December 7, 1979, to toll the statute of limitations, which he believed would run out on December 10. Despite the fact that the three consolidated matters were pending trial in Union County, he made no effort to join Volkswagen in Union County or to inform the court or other parties of that action. Rather, he filed this action in Bergen County assertedly because that was the headquarters of Volkswagen of America. Significantly, however, he issued no summons.

In the spring of 1980, DOT, also having learned of the “20/20” program, moved for leave to file a third-party complaint against Volkswagen in the Union County consolidated action. On May 2, 1980, the return date of the motion, plaintiff’s counsel did not take a position and continued to conceal the existence of the Bergen County suit. The trial court denied DOT’S motion to join Volkswagen, commenting that it was a matter of balancing the advantage of a joint trial with all possible defendants against the expected delay of one year in bringing to trial a matter involving “what I recognize is a very serious injury.” DOT sought leave to appeal this denial. At this point, plaintiff’s counsel argued in his Appellate Division brief that DOT’s motion had been denied correctly because of its failure to present the court with an expert’s report to support its position, despite the fact that plaintiff had already filed suit on the very same theory.

The Appellate Division denied DOT’S motion for leave to appeal and the Union County litigation continued. Morrison, the driver of the third car, was granted summary judgment and was then out of the case. Crispin’s claims against DOT and Groves were settled for $200,000 plus an annuity valued at $650,000, payable over a twenty-five year period. Rapicka’s claims against Crispin were settled out of court as well.

The remaining case in Union County, involving Rapicka’s passenger, Lothrop, was tried in October 1980. The jury apportioned liability in the following percentages: Crispin 67%; Groves 13%; DOT 20%. Rapieka was found not negligent.

It was not until January 1981, after all of the Union County litigation was over, and thirteen months after the Bergen County suit was filed, that Crispin’s attorney served Volkswagen in the Bergen County action. Volkswagen moved to dismiss the complaint on the basis of plaintiffs failure to serve the summonses within ten days, in violation of Rule 4:4-1. It argued that the plaintiffs attorney’s conduct was inexcusable and that the dismissal should be with prejudice.

Plaintiff defended his trial tactics and resisted dismissal, asserting that Volkswagen had suffered no real prejudice and had itself delayed for years in disclosing the defect despite its knowledge. The Bergen County trial court dismissed the complaint without prejudice on April 27, 1981. The court recognized that its decision would countenance needless delay, and that plaintiff’s justification for the delay was insufficient to allow the action to continue. It concluded, however, that since there had been no hearing on the merits, the dismissal should be without prejudice, but observed that if the action were re-instituted, a threshold issue would be whether the statute of limitations had run. Both parties appealed that order to the Appellate Division.

On May 26, 1981, plaintiff, to cover his claim if the dismissal were upheld, reinstituted the same complaint against Volkswagen in Essex County. Volkswagen joined DOT, Groves and Rapicka. In October 1981, Volkswagen of America moved to dismiss Crispin’s complaint on the basis of the statute of limitations. Plaintiff opposed that motion based on his asserted late discovery of the cause of action against Volkswagen. The trial court denied this motion. Hence, no appeal is before us on the issue of the statute of limitations or discovery of the cause of action.²

Volkswagen next moved to dismiss the Essex County suit based upon the entire controversy doctrine. That motion was heard on February 11, 1982, but not decided until December 1982. The trial court denied the motion, and held that the entire controversy doctrine required the joinder only of claims and not parties, citing Aetna Ins. Co. v. Gilchrist Bros., Inc., 85 N.J 550, 558 (1981).³ Volkswagen sought leave to appeal from that decision, which the Appellate Division denied on December 23, 1982.

On January 7, 1983, defendants sought (1) leave to appeal the Appellate Division’s denial of leave to appeal the Essex County entire controversy issue, (2) to certify directly the late service issue from the Bergen County action, then pending in the Appellate Division, and (3) to consolidate the two causes before us. Before we acted on the motion, the Appellate Division affirmed the trial court’s ruling in the Bergen County matter. While noting that “[pjlaintiffs’ tactics were not only unfair to * * * defendants, they were [also] a deliberate abuse of the court rules and a disservice to the court and other litigants as well,” that court ruled that the Bergen County court’s dismissal without prejudice was not an abuse of discretion, noting that at the time of its ruling the statute of limitations issue had not been tested.

We granted defendants’ petition for certification in that Bergen County matter, 94 N.J. 531 (1983), and granted leave to appeal in the Essex County matter. Id. at 532.

I.

At the outset, we agree that the time has come to reconsider the application of the entire controversy doctrine to parties as well as claims, in certain limited circumstances. We disagree that any such ruling be made retroactive.

In Aetna, supra, we fell short of such an extension, preferring instead to refer the matter to our Civil Practice Committee. 85 N.J. at 560 & n. 3. In 1982 that Committee recommended that the entire controversy doctrine not be extended to parties because, in its view, new mandatory joinder rules would only intensify the already complex, time-consuming, and expensive nature of modern litigation. But the complex webs of causation that arise in cases of this nature suggest that joinder of known responsible parties in a single action be the norm. Certainly where, as here, a litigant knows of a potentially responsible party, and has already sued that party in another action, the principles that underlay the entire controversy doctrine should come into play. A party should not be permitted to maintain such independent action when a directly related suit is pending.

We recognize the many difficult problems that extension of the doctrine may pose, as expressed in Aetna, supra, 85 N.J. 550, and the 1982 Report of the Civil Practice Committee. 109 N.J.L.J. 497, 502 (1982). We will proceed on a step-by-step basis recognizing that the doctrine is one of judicial fairness and will be invoked in that spirit. The Supreme Court Committee on Civil Case Management and Procedure presently has this issue under consideration and will present its recommendations to us for possible action under our rule-making power.

But we would not apply such a new rule here retroactively. We had repeatedly said that “[t]he essence of that policy is the joinder of claims and not parties.” Thornton v. Potamkin Chevrolet, 94 N.J. 1, 5 (1983); Aetna, 85 N.J. at 556-60; R. 4:27-1(b). Litigants had a right to rely on that policy. There is no doubt that had the Civil Practice Committee recommended the change suggested in Aetna, 85 N.J. at 560 & n. 3, and had this Court adopted it, the rule would have been prospective.

Litigants are entitled to order their affairs in accordance with our existing rules of practice. Compulsory joinder extends only to parties without whom litigation cannot feasibly proceed. R. 4:28-1. A change in practice and procedure that would retroactively foreclose an otherwise valid claim would be akin to a new limitation of actions. These have never been applied retroactively without offering claimants an opportunity to be heard on the merits of a claim. In Aetna, we declined to extend the doctrine to subrogors because “it would be unfair to state a new procedural rule to preclude a party from having its day in court.” 85 N.J. at 560; see also 51 Am.Jur.2d Limitation of Actions § 31 (1970). We apply the same principle here.

II.

A second question is presented by the dismissal of the Bergen County complaint without prejudice. Our rules authorize the dismissal of an action for failure to issue a summons within ten days of the filing of a complaint. Rule 4:4-1 states:

The plaintiff, his attorney or the clerk of the court may issue the summons. If a summons is not issued within 10 days after the filing of the complaint the action may be dismissed in accordance with R. 4:37-2(a). Separate or additional summonses may issue against any defendants.

Rule 4:37-2(a), in turn, states:

For failure of the plaintiff to cause a summons to issue within 10 days after filing the complaint or to comply with these rules or any order of court, the court in its discretion may on defendant’s motion dismiss an action or any claim against him. Such a dismissal shall be without prejudice unless otherwise specified in the order.

In X-L Liquors, Inc. v. Taylor, 17 N.J. 444 (1955), the Court affirmed the Law Division’s refusal to dismiss an action for failure to serve the summons in due time. That complaint involved a timely but defective service, which was annulled by the Appellate Division ten months after issue because defendants’ agent had not been served personally. Within thirty-five days, plaintiff forwarded the new summons and complaint to the sheriff and service was completed. The Court stated the policy behind Rule 4:4-1 and Rule 4:42(2)(a) [predecessor to Rule 4:37-2(a)]:

They are designed to insure that after the plaintiff has filed his complaint he will diligently cause the summons to be issued so that the defendant will be advised of the complaint and be afforded early opportunity to answer or take such other steps as he considers appropriate. [17 N.J. at 453.]

It found the X-L defendant to have had all such timely notice and opportunity to act.

Defendant had no such early and timely notice here. It was appropriate, then, for the Bergen County trial court in its discretion to dismiss the complaint. That the court was obliged to dismiss the complaint with prejudice is less clear. Competing policies are involved in disputes over procedural questions such as this. The defendant’s right to have the plaintiff comply with procedural rules conflicts with the plaintiff’s right to an adjudication of the controversy on the merits. Crews v. Garmoney, 141 N.J.Super. 93, 96 (App.Div.1976). A range of sanctions is available when a party violates a court rule. Since dismissal with prejudice is the ultimate sanction, it will normally be ordered only when no lesser sanction will erase the prejudice suffered by the non-delinquent party. See Gnapinsky v. Goldyn, 23 N.J. 243, 248 (1957); Schlosser v. Kragen, 111 N.J.Super. 337, 346 (Law Div.1970).

We recognize that delay that so prejudices a defendant that his ability to defend the case is seriously impaired will call for dismissal with prejudice. See Moschou v. DeRosa, 192 N.J.Super. 463, 466-67 (App.Div.1984) (dismissal required where defendant’s disposal of records after statute of limitations had run prejudiced his case). But the prejudice that defendants claim is primarily lack of joinder in the Union County matter. There is no proof that any evidence is less available now than in 1980 when the Union County litigation took place. The car had apparently been disposed of in 1978 and the difficulty of proving the condition of the seat will be an equal burden on plaintiff. We believe that adequate safeguards can be created so that defendants suffer no prejudice. Plaintiff asserts that his claim against Volkswagen is limited to those injuries “enhanced” by the presence of the alleged defect—not injuries caused by the crash alone. See Huddell v. Levin, 537 F.2d 726 (3d Cir.1976); Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir.1968) (differing views as to whether such injuries are in fact divisible); see also Gelsmine v. Vignale, 11 N.J.Super. 481 (App.Div.1951); Vadurro v. Yellow Cab Co. of Camden, 8 N.J.Super. 208 (App.Div.), aff'd 6 N.J. 102 (1950) (two independent tortfeasors may be regarded as jointly and severally liable if “united in causing plaintiff’s total injuries”). The trial court must carefully mould its procedures so that Volkswagen’s liability is appropriately limited. Proper credit must be afforded for the recovery previously allowed.

The decision whether to dismiss with or without prejudice is reposed in the sound discretion of the trial court under Rule 4:37-2(a). We share the Appellate Division’s concern over the trial tactics of plaintiffs attorney. But we would hesitate to deny plaintiff, because of his attorney’s trial tactics, a trial on the merits of his claim that his injuries were caused by a defective car seat. Justice Sullivan, while sitting in the Appellate Division, said it best: “The handling of this case by plaintiffs’ then attorney has been described as inexcusable. It is more than that, but I question whether a litigant must suffer because of counsel’s utter incompetence.” McLaughlin v. Bassing, 100 N.J.Super. 67, 70 (1967) (Sullivan, J.A.D., dissenting), rev’d on dissent below, 51 N.J. 410 (1968).

Only recently, in Baumann v. Marinaro, 95 N.J. 380 (1984), we reemphasized that the crucial factor in reviewing sanctions for attorney misconduct is whether the client has had a hearing on the merits. As Justice Jacobs wrote, “[A]fter all, justice is the polestar and our procedures must ever be moulded and applied with that in mind.” New Jersey Highway Auth. v. Renner, 18 N.J. 485, 495 (1955).

III.

Finally, we must deal with the attorney’s tactics here. Throughout the opinion we have referred to plaintiff’s attorney or counsel in the singular. In fact, he was represented by two attorneys. His initial Union County trial counsel filed the Bergen County suit but brought in current counsel because of expertise in the products liability field. We do not assess the comparative responsibility of either of them here or their separate responsibility. Suffice it to say that the record appears to disclose a lack of candor before a tribunal that is contrary to the standards of our profession that DR 7-102(A)(3) imposes upon each member of the bar. In some situations, silence can be no less a misrepresentation than words. See Berman v. Gurwicz, 189 N.J.Super. 89, 93 (Ch.Div.1981), aff’d, 189 N.J. Super. 49 (App.Div.), certif. den., 94 N.J. 549 (1983). Counsel’s argument in his appellate brief that DOT had failed to present sufficient evidence to implicate Volkswagen appears misleading, inasmuch as he had filed a separate complaint asserting the same cause of action. Rule 1:4-8 requires that there must be “good ground to support” every pleading. These were not the kind of inconsistent positions that an attorney may sometimes advance. See Andersen v. Exxon Co., 89 N.J. 483 (1982); R. 4:5-6. They appear to be diametrically opposed representations. Every lawyer owes to court and counsel the duty of candor and fairness. An attorney owes a duty of good faith to and honorable dealing with the tribunal before which a matter is proceeding. See In re Nigohosian, 88 N.J. 308 (1982). While we have refrained from making their client suffer, both counsel here must justify their tactics. We refer this aspect of the case to the Office of Attorney Ethics for further disposition.

The judgments below are affirmed. The cause is remanded to the Superior Court, Essex County, for further proceedings.

1 We have omitted in this recitation some of the procedural steps not relevant to the central issues.

2 We do not decide the merits of that issue. See differing views of majority and dissent in Fox v. Passaic General Hosp., 71 N.J. 122 (1976) (absent prejudice, claimant allowed two years from date of discovery of medical malpractice to file action); see also Lynch v. Rubacky, 85 N.J. 65 (1981). Because Volkswagenwerk of Germany might not be able to claim the statute as a foreign corporation, see Coons v. American Honda Motor Co., 94 N.J. 307 (1983), rehearing granted on retroactivity, 95 N.J. 234 (1983), only Volkswagen of America moved to dismiss on that ground. Volkswagenwerk of Germany also moved to dismiss for noncompliance with the Hague Convention, but that motion was later withdrawn.

3 It further ruled that the finding of Crispin's 67% negligence did not preclude the claim against Volkswagen under the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.3, because that claim involved a "second collision”; that Crispin's release of Groves and DOT precluded Volkswagen from seeking indemnification against them, relying on Cartel Capital Corp. v. Fireco of N.J., 81 N.J. 548 (1980); and that since Rapicka was found not negligent, she was entitled to dismissal of the claim for indemnity based upon the doctrine of collateral estoppel. We do not pass upon these issues.