Prevratil v. Mohr

678 A.2d 243, 145 N.J. 180, 1996 N.J. LEXIS 941

• Court: Supreme Court of New Jersey
• Decided: July 10, 1996
• Status: Published

Opinions

The opinion of the Court was delivered by

POLLOCK, J.

The primary issue is whether we should create an exception from the entire controversy doctrine for automobile-negligence cases. Specifically, the question is whether the entire controversy doctrine bars the personal injury action of plaintiffs, Joseph Prevratil, and his wife, Lisa, when counsel for his employer’s insurer defended Prevratil and the employer in a prior action arising out of the same automobile accident as gives rise to Prevratil’s present action.

The Law Division granted the motion for summary judgment by defendants George Mohr and Rich Hill, holding that the doctrine barred plaintiffs’ claims. The Appellate Division affirmed, 279 N.J.Super. 652, 653 A.2d 1190 (1995). We granted Prevratil’s petition for certification, 141 N.J. 97, 660 A.2d 1196 (1995), and now reverse and remand the matter to the Law Division.

We hold that the entire controversy doctrine applies to actions arising out of automobile-accident cases. Likewise, litigants currently involved in negligence litigation shall have time to make a timely application to assert affirmative claims. In all other cases, litigants in an automobile-accident case must assert any affirmative claims in the course of a single litigation.

-I-

This action arises from a three-vehicle accident on March 2, 1989. Prevratil was operating a vehicle owned by his employer, Benjo Trucking Company (Benjo), and insured by Royal Insurance. Defendant, George Mohr, was operating a vehicle owned by his employer, Rich Hill Transportation (Rich Hill), and Janet Olsen was operating her own vehicle. The vehicles were proceeding on State Highway 440 in Woodbridge: Mohr, Prevratil, and Olsen. Mohr drove his vehicle into the rear of Prevratil’s truck, which then struck Olsen’s vehicle.

Olsen filed a personal injury action on May 2, 1989, naming as defendants Prevratil, Mohr, Benjo, and Rich Hill. Olsen’s counsel served a summons and complaint on Prevratil at his residence, 51-24 35th Street, Long Island City, New York, by both regular and certified mail. Although Prevratil claimed that he never had received any notice of the suit, someone signed his name on the certified-mail return-receipt card.

Benjo’s insurer retained the law firm of Crowley & Cross to represent Prevratil and Benjo. On June 23,1989, the firm filed an answer and cross-claim for contribution on Prevratil’s behalf. The answer did not assert any cross-claims or counterclaims for personal injuries to Prevratil.

Olsen settled her suit within seven months of filing. In a release and stipulation of dismissal with prejudice executed on December 4,1989, Olsen settled her claims against Mohr and Rich Hill for $15,000. She dismissed her claims against Prevratil and Benjo.

On November 26,1990, Prevratil filed the present action against Mohr and Rich Hill (subsequently described as defendants). Defendants moved for summary judgment on the ground that Prevratil should have asserted his personal injury claims in the Olsen action. Prevratil countered that he was unaware of the pendency of the Olsen action or Crowley & Cross’s appearance in that action on his behalf.

The trial court reasoned that the application of the entire controversy doctrine turned on whether Prevratil actually knew about the Olsen action before its resolution. Consequently, the court conducted a plenary hearing on July 12, 1993, on that issue. See Cafferata v. Peyser, 251 N.J.Super. 256, 260, 597 A.2d 1101 (App.Div.1991) (requiring evidential hearing when plaintiff’s knowledge of initial suit is disputed); Madison Indus. v. Eastman Kodak, 243 N.J.Super. 578, 585, 581 A.2d 85 (App.Div.1990) (affirming fact-finding hearing to resolve summary judgment on intent of parties). The purpose of the hearing was to conduct limited fact-finding before ruling on the motion for summary judgment. The procedure is eminently sensible. If a court can determine a matter on summary judgment by recourse to limited fact-finding, a plenary trial on all issues is inefficient and unnecessary.

At the hearing, defendants contended that Prevratil’s answer to Olsen’s complaint, filed on Prevratil’s behalf by Crowley & Cross, showed that Prevratil had been properly served. Defendants submitted correspondence from Patrick W. Foley, Olsen’s attorney, to Crowley & Cross after it filed Prevratil’s answer. The letter stated that Foley had been unable to serve Benjo. Defendants reasoned that Prevratil must have received the complaint and forwarded it to Benjo, who then forwarded it to Royal Insurance, which finally forwarded it to Crowley & Cross. Otherwise, Crowley & Cross would not have filed Prevratil’s answer to the complaint. Prevratil countered that the omission of an answer on behalf of Benjo was a mere oversight.

To substantiate that Prevratil had been served with the Olsen complaint, defendants introduced the certified-mail return-receipt card bearing Prevratil’s signature. The complaint had been sent by regular and certified mail to Prevratil’s residence in Long Island City. Neither the complaint nor any other correspondence regarding the Olsen action sent by Foley or by Crowley & Cross to Prevratil had been returned as undelivered. Prevratil conceded that he had received other official documents, such as tax returns and workers’ compensation checks, at his Long Island City residence. He denied, however, that the signature on the receipt card was his and explained that a neighbor might have signed his name.

The trial court concluded that Prevratil had timely knowledge of the Olsen litigation. The proofs also revealed that shortly after the accident Prevratil knew of his alleged injuries. Three months after the accident, Prevratil consulted his personal attorney about filing an action for personal injuries arising out of the accident. While the Olsen action was pending, moreover, Prevratil consulted an attorney about filing a workers’ compensation claim for the same injuries. Finding no special equities justifying an exception to the entire controversy doctrine, the trial court granted defendants’ motion for summary judgment.

Prevratil appealed to the Appellate Division. While the appeal was pending, another part of the Appellate Division permitted a plaintiff in a multi-vehicle accident case to pursue a personal injury claim despite plaintiffs failure to assert an affirmative claim in prior related litigation. Stebbins v. Robbins, 278 N.J.Super. , 651 A.2d 486 (1995). In the present ease, however, the Appellate Division affirmed the summary judgment dismissing Prevratil’s complaint. It ruled that absent equitable considerations, automobile-negligence cases should remain subject to the joinder-of-claims requirements of the entire controversy doctrine as contained in Rule 4:30A. 279 N.J.Super. at 657, 653 A.2d 1190.

We granted Prevratil’s petition for certification to resolve the conflict in the Appellate Division decisions. We agree that automobile-accident cases should be subject to the rules pertaining to the mandatory joinder of claims, Rule 4:27, and to the entire controversy doctrine, Rule 4:30A. To assure the fairness of the dismissal of Prevratil’s action, however, we reverse the judgment of the Appellate Division and remand the matter to the Law Division.

-II-

Rule 4:30A states:

Non-joinder of claims or parties required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims to the extent required by the entire controversy doctrine, except as otherwise provided by R. 4:64-5 (foreclosure actions) and R. 4:67-4(a) (leave required for counterclaims or cross-claims in summary actions).

See also R. 4:7 (making mandatory counterclaims not asserted subject to preclusion under R. 4:30A); R. 4:5-1 (requiring identification of any other pending or contemplated action in any other court or arbitration proceeding involving same controversy).

During the pendency of Olsen’s action, Rule 4:27-l(b), the predecessor of Rule 4:30A, provided: “Each party to an action shall assert therein all claims which he may have against any other party thereto insofar as may be required by application of the entire controversy doctrine.” Rule 4:30A replaced and modified Rule 4:27-l(b) by extending mandatory joinder beyond claims to parties. In this case, however, we are concerned only with the mandatory joinder of claims. Since September 10, 1979, when subparagraph (b) was added to Rule 4:27-1, the Rules Governing the Courts of the State of New Jersey have required the mandatory joinder of all claims as required by the entire controversy doctrine. Thus, for ten years preceding the date of the accident that gives rise to Prevratil’s claim, the rules of practice required defendants in personal-injury actions to assert their claims for personal injuries in the original action.

Generally speaking, the entire controversy doctrine requires whenever possible all phases of a legal dispute to be adjudicated in one action. At a minimum, all parties to a suit should assert all affirmative claims and defenses arising out of the underlying controversy. Cogdell v. Hospital Ctr., 116 N.J. 7, 15, 560 A.2d 1169 (1989). The doctrine, which promotes the twin goals of efficient judicial administration and fairness, encourages the comprehensive and conclusive determination of a legal controversy. Mystic Isle Development Corp. v. Perskie & Nehmad, 142 N.J. 310, 322, 662 A.2d 523 (1995); Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 349, 476 A.2d 250 (1984). It stems directly from the principles underlying the doctrine of res judicata or claim preclusion.

So deeply rooted in the administration of the judicial system is the doctrine that it attained constitutional status in the 1947 Constitution:

Subject to the rules of the Supreme Court, the Law Division and the Chancery Division shall each exercise the powers and functions of the other division when the ends of justice so require, and legal and equitable relief should be granted in any cause so that all matters in controversy between the parties may be completely determined.

[N.J. Const art. VI, § 2,¶4],

Even before the 1947 Constitution, courts recognized the doctrine as an efficient means of administering justice. See, e.g., Smith v. Red Top Taxicab Corp., 111 N.J.L. 439, 440-41, 168 A 796 (E. & A 1933) (stating that “[n]o principle of law is more firmly established than that a single or entire cause of action cannot be subdivided into several claims, and separate actions maintained thereon”); Mantell v. International Plastic Harmonica Corp., 141 N.J. Eq. 379, 393, 55 A.2d 250 (E. & A. 1947) (declaring equity court may render “final determination of the entire controversy” to further “the policy of avoiding ‘a multiplicity of suits’ ”).

Early interpretations of the entire controversy doctrine led to rulings that the Chancery Division should adjudicate the legal issues of a case, even when the equitable issues had been determined previously. Steiner v. Stein, 2 N.J. 367, 378, 66 A.2d 719 (1949); see also Tumarkin v. Friedman, 17 N.J.Super. 20, 24, 85 A.2d 304 (App.Div.1951) (ruling that county court was authorized to resolve both legal and equitable issues of suit properly filed in its jurisdiction) certif. denied, 9 N.J. 287, 88 A.2d 39 (1952). In Massari v. Einsiedler, 6 N.J. 303, 313, 78 A.2d 572 (1951), the Court broadened the reach of the doctrine by requiring joinder of defenses. See also Applestein v. United Bd. & Carton Corp., 35 N.J. 343, 356, 173 A.2d 225 (Í961) (stating that a defendant “must assert all matters which will defeat a claim against him and a plaintiff must seek complete relief for vindication of the wrong he charges”). The Court precluded a claimant who had been a defendant in an earlier action from asserting a claim in a later action that could have been asserted as a defense in the earlier one. 6 N.J. at 311-12, 78 A.2d 572.

The Court in Ajamian v. Schlanger, 14 N.J. 483, 103 A.2d 9, cert. denied, 348 U.S. 835, 75 S.Ct. 58, 99 L.Ed. 659 (1954), extended the doctrine by precluding such proceedings by the plaintiff. The Court held that a plaintiffs failure to raise a claim for damages in a proceeding in which he had sought rescission of an allegedly fraudulent contract barred a later action for money damages. Id. at 488-89, 103 A.2d 9.

Justice Brennan, writing for the Court, explained that the procedural reform was

designed and purposed for the just and expeditious determination in a single action of the ultimate merits of an entire controversy between litigants. It is a fundamental objective of this procedural reform to avoid the delays and wasteful expense of the multiplicity of litigation which results from splitting of a controversy.

[Id. at 485, 103 A.2d 9.]

Moreover, “to sanction [one party’s] holding in reserve his one available remedy for the purpose of attack in another suit, would be utterly destructive of the policy____ ‘To hold otherwise would be to revive one of the worst defects of the old order and to do violence to both the letter and the spirit of the new Constitution.’ ” Id. at 489, 103 A.2d 9 (quoting State ex rel. Wm. Eckelmann, Inc. v. Jones, 4 N.J. 374, 383, 72 A.2d 872 (1950)); see also Falcone v. Middlesex County Medical Soc’y, 47 N.J. 92, 219 A.2d 505 (1966) (stating that elemental considerations of fairness to other party and judicial economy dictate all of plaintiffs claims arising from same occurrence be joined in a single proceeding). In Vacca v. Stika, 21 N.J. 471, 122 A.2d 619 (1956), we further broadened the doctrine by requiring representative parties to assert counterclaims in one suit. Id. at 476, 122 A.2d 619; see Korff v. G & G Corp., 21 N.J. 558, 571-72, 122 A.2d 889 (1956) (broadening doctrine to include defendant’s counterclaim against nonresident plaintiff who voluntarily instituted a lawsuit in New Jersey).

The Appellate Division in Wm. Blanchard Co. v. Beach Concrete Co., 150 N.J.Super. 277, 375 A.2d 675, certif. denied, 75 N.J. 528, 384 A.2d 507 (1977), identified the underlying transaction, not the nature of the plaintiffs cause of action, as defining the limit of the action. In a factually complex dispute, the Appellate Division barred a series of cross-claims and counterclaims that co-parties in an earlier action had failed to assert. Id. at 287, 375 A.2d 675. The court ruled that the entire controversy doctrine required that defendants assert not only claims deriving from plaintiffs cause of action, but also any and all cross-claims and counterclaims arising out of the underlying transaction. Id. at 294, 375 A.2d 675.

In the following year, the Appellate Division barred a shareholder’s suit for alleged breach of an oral agreement to make a loan to the corporation, when the suit was brought two years after the corporation had lost a suit brought by the bank. Malaker Corp. Stockholders Protective Comm. v. First Jersey Nat’l Bank, 163 N.J.Super. 463, 468, 395 A.2d 222 (1978), certif. denied, 79 N.J. 488, 401 A.2d 243 (1979). Although the shareholders were not parties to the earlier action, the court dismissed the second suit on the basis of the entire controversy doctrine and Rule 4:7-1, which requires mandatory joinder of counterclaims seeking liquidated damages. Id. at 496-500, 395 A.2d 222.

Thus the entire controversy doctrine encompasses “virtually all causes, claims, and defenses relating to a controversy.” Cogdell, supra, 116 N.J. at 16, 560 A.2d 1169. In essence, “it is the factual circumstances giving rise to the controversy itself, rather than a commonality of claims, issues or parties, that triggers the requirement of joinder to create a cohesive and complete litigation.” Mystic Isle, supra, 142 N.J. at 323, 662 A.2d 523 (citing DiTrolio v. Antiles, 142 N.J. 253, 267-68, 662 A.2d 494 (1995)).

In 1979, we incorporated into our court rules the policy of mandatory joinder of claims and defenses. Ultimately, the application of the doctrine depends on the exercise of judicial discretion in the facts of each case. Mystic Isle, supra, 142 N.J. at 323, 662 A.2d 523. Thus, equitable considerations can relax mandatory-joinder requirements when joinder would be unfair. See ibid, (noting that doctrine does not apply to bar component claims that are “unknown, unarisen, or unaccrued at the time of the original action”); Cafferata, supra, 251 N.J.Super. at 260, 597 A.2d 1101 (stating that doctrine does not bar transactionallyrelated claims of which party was unaware during pendency of prior litigation). In sum, the entire controversy doctrine compels litigants at the risk of preclusion to assert all claims in a single controversy.

The mandatory joinder of parties has evolved more tentatively than the mandatory joinder of claims. Before our decision in Crispin, supra, we had declined to extend the entire controversy doctrine to the mandatory joinder of parties. See, e.g., Thornton v. Potamkin Chevrolet, 94 N.J. 1, 5, 462 A.2d 133 (1983) (stating that “[t]he essence of that policy is the joinder of claims and not parties”); Aetna Ins. Co. v. Gilchrist Bros., Inc., 85 N.J. 550, 556-60, 428 A.2d 1254 (1981); McFadden v. Turner, 159 N.J.Super. 360, 369, 388 A.2d 244 (App.Div.1978) (holding that entire controversy doctrine “[i]s a rule of mandatory joinder of claims, not of parties,” so plaintiffs suit against nurses for injuries sustained during stay at hospital may proceed even though verdict already won against hospital for same injuries). In Crispin, however, we recognized that joinder of known parties in a single pending action, especially in complex negligence cases, should be the norm. 96 N.J. at 343, 476 A.2d 250. Consistent with the equitable principles of the entire controversy doctrine, we decided to proceed on a case-by-case basis, “recognizing that the doctrine is one of judicial fairness and will be invoked in that spirit.” Ibid.

Beginning with Cogdell, we extended the entire controversy doctrine to the joinder of parties. 116 N.J. at 26, 560 A.2d 1169. Shortly after rendering the decision in Cogdell, we adopted Rule 4:30A, thereby codifying the mandatory joinder of both claims and parties. Last year we applied the doctrine to four cases involving party joinder. See Mortgagelinq Corp. v. Commonwealth Land Title Ins. Co., 142 N.J. 336, 662 A.2d 536 (1995) (barring claims against parties omitted from earlier action in another jurisdiction if jurisdiction was available in the first forum); Mystic Isle, supra, 142 N.J. at 325, 334, 662 A.2d 523 (barring legal-malpractice claims arising from real estate development suit because developer failed to join attorneys as defendants in first litigation); Circle Chevrolet v. Giordano, Halleran & Ciesla, 142 N.J. 280, 662 A.2d 509 (1995) (barring attorney-malpractice claims for failure to join attorneys and assert claims in underlying action against landlord for reformation of commercial lease agreement); DiTrolio, supra, 142 N.J. at 279, 662 A.2d 494 (barring physician’s suit against members of hospital staff because of failure to join them as defendants in prior suit against hospital).

Those decisions have attracted some criticism from academicians and the bar. See Geoffrey C. Hazard, Jr., An Examination Before and Behind the Entire Controversy Doctrine, New Jersey Institute for Continuing Legal Education, Entire Controversy Doctrine, Seminar Material (1996) (criticizing the party-joinder requirements of the entire controversy doctrine as introducing unnecessary uncertainty into complex civil litigation, but noting that claims-joinder decisions prior to Cogdell are consistent with the principles of res judicata)-, Albert L. Cohn & Terri A. Smith, Practice and Malpractice after Circle Chevrolet, New Jersey-Institute for Continuing Legal Education, Entire Controversy Doctrine, Seminar Material (1996) (articulating the pitfalls created by requirement in Circle Chevrolet of mandatory joinder of attorneys for malpractice claims in underlying suit); see also Russ Bleemer, First Thing You Do, Sue All the Lawyers, 141 N.J.L.J. 1 (Aug. 7, 1995) (interpreting the court’s opinions as stating “[s]ue early and sue everyone, including your own lawyer”). The criticism, however, is limited to the application of the entire controversy doctrine to the joinder of parties, particularly to the joinder of attorneys for the purpose of asserting potential malpractice claims. Whatever problems may inhere in party joinder do not apply to the issue in the present case, which concerns only the joinder of claims.

-III-

In 1989, when Olsen filed her action, neither the court rules nor the case law made any exception from the entire controversy doctrine for automobile cases. During the pendency of this appeal, the Appellate Division rendered , conflicting .decisions on the issue.

Burrell v. Quaranta, 259 N.J.Super. 243, 612 A.2d 379 (App.Div.1992), involved facts almost identical to those in this case. Burrell was injured in a three-car accident. One driver initially filed an action against the other drivers, including Burrell. The insurance carrier’s counsel represented Burrell in that action. Subsequently, Burrell filed a separate personal injury action against the same parties. The trial court barred Burrell’s action on the basis of the entire controversy doctrine, and the Appellate Division affirmed.

In Stebbins v. Robbins, 278 N.J.Super. 439, 651 A.2d 486 (App.Div.1995), however, another part of the Appellate Division reached a contrary result. Stebbins was operating a jitney bus when a jeep collided with the bus. In three separate actions, the jeep passengers sued the operators of both vehicles. Stebbins had retained personal counsel shortly after the accident, but had not asserted an affirmative claim in the original suit. After two of the cases settled, Stebbins filed a personal injury action against the owner and operator of the jeep. The court permitted Stebbins to maintain his personal injury action. It reasoned that a contrary result would deprive the plaintiffs of personal injury claims while relegating them to malpractice actions against their attorneys. Id. at 448, 651 A.2d 486. The Appellate Division declined to follow Burrell, stating that automobile-accident cases constituted an exception to the requirements of the mandatory joinder of claims. It reasoned further that the filing of a separate action during the pendency of another personal injury action would satisfy the entire controversy doctrine, because it would alert the court and other parties to all claims. Id. at 445, 651 A.2d 486.

In addition, the Stebbins court relied on an exception recognized in Humble Oil & Ref. Co. v. Church, 100 N.J.Super. 495, 242 A.2d 652 (App.Div.1968), which involved a collision of a tractor trailer, owned by Humble Oil, with two automobiles. In the first suit for wrongful death, an insurance company attorney represented Humble Oil, which subsequently filed an action for property damage. The Appellate Division allowed the property damage action to proceed primarily because the insurer, not the insured, had controlled the wrongful-death action. Id. at 498-99, 242 A.2d 652. The court also reasoned: “A property damage claim, a personal injury claim and a claim for contribution under the Joint Tortfeasors Contribution Law constitute separate claims for relief even though they all arise by reason of one tortious incident. Joinder of such claims is permissive, not mandatory.” Id. at 500, 242 A.2d 652.

Humble Oil no longer supports the proposition that property damage and personal injury actions are necessarily distinct actions. First, at the time of the decision in Humble Oil, the joinder of claims was permissive, not mandatory. See R. 4:7-1; see also Schweizer v. MacPhee, 130 N.J.Super. 123, 325 A.2d 828 (App.Div. 1974) (distinguishing Humble Oil because claims there were permissive, not mandatory, counterclaims). Second, Humble Oil apparently had brought its property damage claim before its carrier settled the wrongful-death suit. Humble Oil, supra, 100 N.J.Super. at 497, 242 A.2d 652. But see Stebbins, supra, 278 N.J.Super. at 446 n. 1, 651 A.2d 486 (explaining that discrepancies in timing of Humble Oil litigations suggest wrongful-death action may have been resolved prior to filing of Humble Oil’s property damage suit). Because all parties knew of the property damage claim during the first action, the holding comported with the entire controversy doctrine as it had evolved at that time. Even when Humble Oil was decided, however, the entire controversy doctrine would have barred a subsequent personal injury action instituted after the conclusion of a related action arising from the same accident.

We reject plaintiffs request to make an exception under Humble Oil for litigants represented by insurance counsel in the initial litigation. For decades, courts have discounted a plaintiff’s representation in an earlier action by counsel provided by an insurer. See Schweizer, supra, 130 N.J.Super. at 127, 325 A.2d 828 (stating that “[t]he mere fact that an insurance carrier’s] ... counsel defended, in no way demonstrates the inability of plaintiff to comply with the rules of the court”); Burrell, supra, 259 N.J.Super. at 254, 612 A.2d 379. Although an insurer may select the attorney to represent an insured, that “attorney owes his first allegiance to his client in the action, the insured, and bears the responsibility to represent him properly in all respects.” Molnar v. Hedden, 260 N.J.Super. 133, 147, 615 A.2d 647 (App.Div.1992), rev’d on other grounds, 138 N.J. 96, 649 A.2d 71 (1994); see also Lieberman v. Employers Ins., 84 N.J. 325, 336, 419 A.2d 417 (1980) (stating that insurance carrier has fiduciary duty to represent insured); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 492, 323 A.2d 495 (1974). Plainly stated, in any litigation, counsel for an insurer must put the insured’s interests ahead of the insurer’s. Lieberman, supra, 84 N.J. at 336, 419 A.2d 417.

-IV-

We reject any categorical exception of automobile negligence cases from the entire controversy doctrine. Since 1979, such cases, .like other litigation, have been subject to the mandatory joinder of all claims arising from a controversy. This conclusion conforms with Rule 4:30A and with our long-standing practice of encouraging efficient and fair resolution of disputes by requiring all parties to bring their claims in one action. The doctrine admits of equitable exceptions to avoid harsh results. We stress however, that except as provided in Rule 4:64r-5 (foreclosure actions) and Rule 4:67-4(a) (leave required for counterclaims or cross-claims in summary actions), all disputes, including automobile-negligence cases, initially are subject to the doctrine. Equitably enforced, as it has been in cases like Cafferata and Burrell, Rule 4:30A provides a sensible solution to addressing an ever-increasing docket.

The court system cannot afford the luxury of needless multiple actions. From November 1994 to October. 1995, 128,274 civil actions were filed in New Jersey. Of those, 50,048 or thirty-nine percent, were automobile-negligence eases. We will never sacrifice justice for economic considerations, but we cannot ignore the cost to the public of such extensive litigation. All branches of government, including the judiciary, must strive to function efficiently, as well as fairly. The question is not whether the judiciary should provide a forum for the pursuit of claims for personal injuries in automobile-accident cases, but whether in providing such a forum, the judiciary should consider not only the rights of the injured party, but also the rights of the other parties and the public.

To prevent any problems arising from the failure of insureds to assert affirmative claims, insurance companies and their counsel should notify insureds of the requirement of mandatory joinder, explain that the insureds must join all related claims in a pending suit, and advise insureds of the need to seek the advice of personal counsel regarding affirmative claims. It is our understanding, confirmed at oral argument, that insurance companies and their attorneys have been following that practice for years. Hence, we do not anticipate any practical problems with that procedure.

We also recognize the special considerations arising from the application of the entire controversy doctrine to automobile-insurance litigation, particularly when the initial action involves a claim for property damage in the Special Civil Part. Statistics provided by the Administrative Office of the Courts demonstrate that insurers increasingly resort to inter-company arbitration to resolve subrogation claims. Over a four-year period, automobile property damage claims declined from 10,414 in 1991 to 5,626 in 1995, a forty-six percent decrease. When an insured asserts a personal injury claim, the court may remand the entire action to the Law Division or sever the property damage action from the personal injury action. We are aware, moreover, that for decades insurance company counsel appearing for insureds have successfully resolved questions of representation when the insureds have retained their own counsel on personal injury claims. In sum, the problems are manageable.

In the present case, the trial court found that Prevratil knew of the pendency of the Olsen action. While that action was pending, moreover, he retained counsel to prosecute both a workers’ compensation claim and a civil action for the injuries he allegedly sustained in the accident. Thus, ample evidence supports the judgment of the lower courts dismissal of Prevratil’s complaint. Out of an abundance of caution, however, we are remanding the matter to the Law Division for further consideration in light of this opinion. The purpose of the remand is to permit the Law Division to consider the fairness of dismissal. The Law Division has already conducted a plenary hearing on certain issues, including Prevratil’s knowledge of the pendency of the Olsen action. Hence, the court need not revisit that issue. Prevratil’s counsel, however, may wish to bring other issues to the attention of the court. We do not suggest that the Law Division should reach a different result. We leave to the sound discretion of the Law Division, moreover, the determination whether to permit the parties to supplement the record.

The basic flaw in the dissent is its failure to recognize that for seventeen years, the Rules of Court have required the mandatory joinder of claims in all civil actions, including those arising out of automobile accidents. Misplaced also are the dissent’s concerns about the effect of the verbal threshold. One of the twin pillars of the entire controversy doctrine is fairness. In deciding whether to apply the doctrine, a trial court may consider whether an injured party lacks sufficient information to assert a claim because of the uncertainty about (a) the permanency of the loss of use of a body organ or member, N.J.S.A. 39:6A-8a (Type 7); (b) the significance of limitation of use of a bodily function or system, id. (Type 8); or (c) the extent of impairment of a non-permanent injury, id. (Type 9). Concerns about such matters need not deprive the courts, the parties, and the public of the benefits of a court system that is efficient, as well as fair. In the present case, moreover, such concerns are misplaced. Nothing indicates that they played any part in Prevratil’s decision or that of his attorney not to file a claim in the Olsen action.

The judgment of the Appellate Division is reversed, and the matter is remanded to the Law Division.