The legal issues arising out of the operation of schools and not for profit entities are often unique to their missions. We have worked with public and private universities, private, independent and charter schools, and day care centers who need experienced legal counsel who understand the challenges they face. WCM has assisted clients who have faced claims ranging from the failure to supervise a student, routine premises liability exposures, and in more sensitive matters involving instances of sexual harassment, abuse or assault. Whether the matter implicates the Clery Act reporting requirements, New Jersey’s Charitable Immunity Act, or otherwise, we stand ready to guide you through these complex problems. Education and Not for Profit Law The legal issues arising out of the operation of schools and not for profit entities are often unique to their missions. We have worked with public and private universities, private, independent and charter schools, and day care centers who need experienced legal counsel who understand the challenges they face. WCM has assisted clients who have faced claims ranging from the failure to supervise a student, routine premises liability exposures, and in more sensitive matters involving instances of sexual harassment, abuse or assault. Whether the matter implicates the Clery Act reporting requirements, New Jersey’s Charitable Immunity Act, or otherwise, we stand ready to guide you through these complex problems. Practice Lead Nicole Y. Brown Managing Partner +1 212 267 1900 nbrown@wcmlaw.com Download Download

News Bond Deemed Ambiguous and Surety Company Suffers June 7, 2010 < Back Share to: On a construction project, AWL Industries was the general contractor. They hired Cole Mechanical as a subcontractor to do some of the work. The subcontract contained a promise by Cole that it would indemnify AWL under certain circumstances. AWL also required that Cole secure a performance bond and Cole secured the bond from Nova Casualty Company. The bond contained the following language: "Surety [i.e., Nova] upon demand of Obligee [i.e., AWL] may arrange for the performance of Principal's [i.e., Cole's] obligation under the subcontract." Cole defaulted on its contract and Nova stepped in and hired Nelson Air Device Corp to complete the work. Nova also hired a consultant to oversee Nelson's work. An employee of the consultant was injured at the job site and filed suit against AWL. AWL commenced a third party action against Nova, with claims for contractual indemnity and failure to obtain general liability insurance for the benefit of AWL. Nova moved to dismiss the third party action, saying that it had met its obligation under the bond by arranging for Nelson to step in and finish the work. The court denied Nova's motion, saying that the language of the bond was ambiguous. While Nova read the word "arrange" to mean that they only had to arrange to complete the work, the court said that another reading of the bond was that Nova had to "arrange" to take on all of Cole's responsibilities under the subcontract, including the obligation to indemnify AWL. Now a jury will decide what is a fair reading of the bond that Nova drew up. Posted by Georgia Stagias. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04723.htm. Previous Next Contact

News Insurer Has Duty to Defend Allegations of Negligence, Despite Insured’s Admission of Intentional Conduct in Criminal Proceedings. May 10, 2012 < Back Share to: In Am. Auto. Ins. Co. v. Sec. Income Planners & Co., a federal district court in New York recently held that the American Auto Insurance Company had the duty to defend negligence claims against Security Income Planners & Co., LLC, despite plea allocution by the insured’s president and CFO where he admitted to intentional conduct. American Auto insured Security Income under a life insurance agents errors and omissions policy, which included a “Commingling, Misappropriation or Conversion” exclusion, as well as an “Improper Personal Profit” exclusion. After a criminal investigation, the president/CFO admitted he “engaged in a scheme constituting a systematic ongoing course of conduct with the intent to defraud ten or more people by false or fraudulent pretenses, representations or promises, and obtained property from one or more such persons.” With the assistance of a knowledgeable and clever attorney, several of the defrauded individulas brought an action against Security Income and the the president/CFO for unjust enrichment and misrepresentation, and later amended the complaint to include allegations of negligence, negligent training and supervision, and breach of fiduciary duty. American Auto denied coverage to Security Income based on the two policy exclusions noted above. A coverage battle ensued. The court rejected American Auto’s position, holding that the two exclusions did not apply to the negligent supervision claim against Security Income. The court reasoned that negligence and negligent supervision claims arising from fraudulent or intentional acts were not excluded by the policy’s “Comingling, Misappropration or Conversion” and “Improper Personal Profit” exclusions because the claim for negligent supervision did not allege Security Income comingled, misapprpriated, or converted any funds or gained any improper personal profit through its alleged negligent supervision. With regard to at least the duty to defend, insurers must realize that the actual facts are largely irrelevant. The allegations contained in the complaint, if assumed to be true, control the insurer’s duty to defend. If the principle -- and policy forms and exclusions – is worth defending, be prepared for lengthy litigation where a trial may be required to determine whether plaintiff’s allegations are true and the insurer’s duty to indemnify is triggered. http://web2.westlaw.com/find/default.wl?cite=2012+WL+957528&rs=WLW12.04&vr=2.0&rp=%2ffind%2fdefault.wl&sv=Split&fn=_top&mt=407 Thanks to Joe Fusco for this post. If you have any questions or comments, please email Paul at pclark@wcmlaw.com       Previous Next Contact

News $38.5 Million Punitive Damage Award Barred By Statute of Limitations (PA) July 21, 2017 < Back Share to: The Pennsylvania Superior Court recently addressed the $38.5 million punitive damages jury verdict in Wilson v. U.S. Security Associates (2015) - the highest award in Philadelphia in 2015. In 2010, two factory workers were fatally shot and a third seriously injured at the Kraft-Nabisco factory in North Philly. The defendant security firm was found negligent by a jury when two security guards abandoned their post in fear when they saw an armed woman - a suspended Kraft worker who returned to the company looking for revenge. The issue on appeal was the trial court’s decision to allow the plaintiffs—mid-trial—to reinstate a claim for punitive damages which was withdrawn by stipulation in exchange for a withdrawal of preliminary objections two years earlier. And by the time plaintiffs sought to introduce the punitive damages claim, the statute of limitations had expired. The plaintiffs argued that the claim was merely an amendment to the ad damnum clause—the section of the complaint outlining damages—not a new claim; and as such there was no statute of limitations issue. Unpersuaded, the court held that to prove punitive damages, the plaintiffs must prove “reckless, outrageous, intentional and/or wanton” conduct, which is an extra element and not merely an amendment to an existing claim. After finding punitive damages to be a claim instead of an amendment, the court moved to its statute of limitations analysis. Plaintiffs’ stipulation in exchange for the defense withdrawing their preliminary objections removed the claim from the complaint. Accordingly, the complaint must be read without the punitive damages claim. If the claim is not in the original complaint, the statute of limitations was never tolled by filing the complaint and the statute ran from 2010. Therefore, when the plaintiffs sought to reintroduce the claim at trial in 2015, the statute of limitations had already expired. To support this conclusion, the court looked to the settled law of voluntary nonsuits—voluntarily withdrawing an entire lawsuit. In voluntary nonsuits, the original complaint is treated as if it never existed; the statute of limitations is not tolled. The court reasoned there is “no legal basis on which the strategic withdrawal of one significant cause of action, punitive damages, should be treated differently than our settled controlling authority treats the withdrawal of an entire lawsuit.” And thus Wilson v. U.S. Security Associates was stripped of its accolade of Philadelphia Court of Common Pleas’ largest 2015 award. Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono if you would like more information. Previous Next Contact

News Affidavit of Restaurant Manager Insufficient to Thwart Constructive Notice Claim (NY) February 7, 2018 < Back Share to: In Lewis v Carrols LLC, the Fourth Department recently discussed the practical obstacles faced by a defendant in showing that it neither created, nor had notice of, a defective condition. The claim arose from injuries suffered by plaintiff when she allegedly slipped on water in the vestibule of a restaurant owned by defendant. In plaintiff's complaint and bill of particulars, she alleged that defendants either created the dangerous condition or had actual or constructive notice of it. The Supreme Court denied defendant’s motion to dismiss to dismiss the complaint in its entirety, and defendant appealed. On appeal, the Fourth Department noted that defendant submitted evidence that it was raining on the date of loss, and that any water accumulation in the vestibule was a "result of the weather conditions as opposed to an employee spoiling anything in the floor." Accordingly, the Fourth Department held that defendant did not create the condition as a matter of law, and the Supreme Court erred in denying that part of defendant’s motion. The defendant also provided an affidavit from the restaurant manager establishing that she did not personally observe any dangerous condition when she inspected the vestibule approximately thirty minutes before plaintiff’s accident. However, defendants failed to submit evidence that 1) other employees did not observe water on the floor or 2) that there were no complaints about the allegedly wet floor prior to plaintiff’s accident. Accordingly, the Fourth Department held that defendant failed to establish that lacked actual notice of the allegedly dangerous condition, as a matter of law. In its discussion of constructive notice, the Court noted that defendant “cannot satisfy its burden merely by pointing out gaps in the plaintiff’s case, and instead must submit evidence concerning when the area was last cleaned and inspected prior to the accident.” In addition to submitting the restaurant manager’s testimony that she inspected the area approximately thirty minutes prior to plaintiff’s accident, defendant also submitted the testimony of plaintiff’s husband, another restaurant employee. In contrast to the manager’s testimony, plaintiff’s husband testified that the manager was not even present in the restaurant at the time of the accident. He also testified that the area had not been inspected for at least five hours prior to the plaintiff’s accident. While defendant tried to argue that the husband’s contrary testimony was not credible as a matter of law, the Fourth Department instead felt that this testimony created as issue of fact as to when the vestibule had last been inspected. Overall, this decision is interesting because, while defendant proved that it did not create the hazardous condition as a matter of law, the defendant’s own motion showed the existence of issues of fact regarding notice. The restaurant manager’s affidavit indicated that she inspected the area just half an hour prior to the accident. However, defendants also submitted a contradictory affidavit from plaintiff’s husband. Accordingly the Fourth Department held that that defendants failed to prove it lacked actual and constructive notice of the dangerous condition as a matter of law. This decision highlights the uphill battle defendants face in New York. This defendant provided an affidavit a restaurant manager, who inspected the subject area 30 minutes before the accident -- and this was not enough to avoid summary judgment. Thanks for Evan King for his contribution to this post. Please email Brian Gibbons with any questions.     Previous Next Contact

News Plaintiff Fails to File Proper Notice under Torts Claims Act is Fatal December 2, 2016 < Back Share to: At Wade Clark Mulcahy, we often defend cases against public entities. The New Jersey Torts Claims Act requires a claimant to file a notice of claim against a public entity within ninety (90) days of the incident. The case of Pressley v. Borough of Pine Hill affirms how important it is for defense counsel to request and analyze a copy of any notice of claim filed by a plaintiff to determine whether it meets the requirements of the Torts Claims Act. In December, 2013, a Borough of Pine Hill vehicle hit Exia Monroe’s car. At the time, her boyfriend, Gregory Pressley was driving the car. The day after the accident, Monroe contacted the borough, and filled out a notice of claim, listing herself as the claimant. In the body of the notice, she referenced her boyfriend, but was not listed as a claimant. Five days after the ninety (90) day deadline, plaintiff sent a second notice solely his behalf, which was rejected by the Borough. In February, 2015, over one year after the accident, plaintiff filed a motion seeking to file a late notice of Tort Claim. In his motion, plaintiff argued that the Borough had actual notice of the accident, and that the Notice of Claim filed five days late demonstrated substantial compliance with the statute. The Judge denied the motion. On appeal, the plaintiff again argued that his he substantially complied with the statute by filing his notice five days late. He also argued, for the first time ever, that the first notice of claim filed by girlfriend was also filed on his behalf. The Appellate Court upheld the trial court’s decision, finding that 1) the plaintiff’s failure to file a motion for leave to a late notice of claim within one year was fatal to his claim, and 2) plaintiff waived the argument that the first notice of claim filed by Monroe was filed on his behalf, since he failed to raise that point in his original motion papers. Thanks to Healther Aquino for her contribution to this post.             Previous Next Contact

News Too Much, Too Late: 2nd Department Denies Plaintiff’s Leave to Amend and Grants Defendant SJ (NY) May 3, 2017 < Back Share to: The discovery process presents a long and winding road to resolution, and in New York in particular, it often feels as if the plaintiff side is offered disproportionate leeway in terms of substance and deadlines. Plaintiffs often supplement or amend their pleadings, with tacit Court approval, frustrating the defense or minimizing its impact. However, in Tabak v. Shaw Industries, Inc., The Appellate Division, Second Department reversed the trial court’s decision to grant plaintiff’s motion for leave to amend the bill of particulars and granted defendant’s cross motion for summary judgment dismissing the complaint. In the 2010 complaint the plaintiff alleged that he was injured on August 16, 2007. In a bill of particulars dated April 28, 2010, the plaintiff reiterated that the accident occurred on August 16, 2007. At plaintiff’s deposition, he testified that the accident occurred on August 16, 2007. The matter was stricken from the trial calendar on October 28, 2013 just prior to jury selection. Approximately a year later plaintiff moved to restore the matter back to the trial calendar and for leave to amend the bill of particulars to change the date of the accident from August 16, 2007 to July 16, 2007. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint, asserting that the plaintiff had conceded that the defendant did not make a delivery to the plaintiff’s location on August 16, 2007. The Supreme Court granted the portion of plaintiff’s motion for leave to amend. In its reversal, the Appellate Division noted although generally, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or devoid of merit, here the defendant demonstrated that it would suffer significant prejudice as a result of the unexplained delay as plaintiff moved for leave more than four year after the action was commenced and almost a year after the matter was stricken from the trial calendar. As a result, defendant’s cross motion for summary judgment dismissing the complaint was granted as the plaintiff admitted that the defendant did not have presence at the plaintiff’s location on August 16, 2007. That the trial court initially granted the plaintiff’s leave to amend is an example of the leeway that lower courts will often provide plaintiffs. The Second Department’s reversal is at least a reminder that there are some limits. Thanks to Justin Pomerantz for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News In PA, Delay Damages Can Only Be Awarded on Auto Policy’s Limits. January 17, 2013 < Back Share to: In Pennsylvania, an injured party can recover “delay damages”, i.e. interest that runs from the date suit is filed until the date of a favorable judgment for the plaintiff. The question that Pennsylvania’s Supreme Court, the state’s highest court, was recently called to address is whether an insurer can be forced to pay delay damages on an award that exceed the policy limits. In the case of Marlette v. State Farm Mutual Automobile Insurance Company, the controversy stemmed from a car accident in Pittsburgh between Richard Marlette (who was accompanied by his wife, Marleen Marlette) and an uninsured motorist, Herman Jordan. Jordan crossed the centerline and sideswiped the Marlette’s car, leaving Mr. Marlette seriously injured and impairing his future earning capacity. After trial, the jury awarded damages of $550,000 to Mr. Marlette for bodily injuries and $150,000 to Mrs. Marlette for loss of consortium. The trial court molded the $700,000 verdict to fit the Marlette’s uninsured motorist policy with State Farm, which was capped at $250,000. The Marlettes then filed a motion for delay damages on the jury verdict, which was granted. Although the delay damages granted were calculated based on the molded jury verdict, they still caused the total amount of damages collected by the Marlette’s to exceed the insurance cap of $250,000. Thereafter, both the Marlettes and State Farm filed appeals and the case ultimately ended up before the Supreme Court of Pennsylvania. The Supreme Court limited its review to the question of whether delay damages should be awarded on the jury verdict or the policy limit. Ultimately the Supreme Court ruled that delay damages can only be awarded on the policy’s limits and not the jury verdict. One questions whether the result would have been the same if the Supreme Court had been faced with a commercial general liability policy affording third-party coverage. It appears to us that the answer would be “no” so the potential for significant extra contractual exposure remains. Special thanks to Thalia Staikos for her contributions to this post. For more information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Superior Court Declines to Expand Personal Jurisdiction over Foreign Corporations (PA) July 30, 2020 < Back Share to: In Fulano v. Fanjul Corp., the Pennsylvania Superior Court recently considered whether forty-one foreign plaintiffs could establish personal jurisdiction over four corporate defendants all located in different states or countries. Plaintiffs were forty-one Dominican agricultural workers who alleged they became sick after exposure to toxic chemicals while working in the Dominican Republic. Plaintiffs sued the corporate parents of their employers, Fanjul Corp. and Inicia Ltd, who were both large sugar producers and distributors based in Florida and the British Virgin Islands, as well as the pesticide manufacturers, Drexel Chemical Company and UPL Limited, who were based in Tennessee and India, respectively. Plaintiffs asserted various theories attempting to establish personal jurisdiction over each of the Defendants and Defendants filed preliminary objections for lack of personal jurisdiction. The trial court sustained the Defendants’ objections and dismissed the claims with prejudice. Plaintiffs appealed. The Superior Court affirmed the trial court’s decision. Regarding the sugar producers, the Superior Court determined that plaintiffs could not assert a “stream of commerce” theory. Although the producers’ products made its way to Pennsylvania, Plaintiffs did not allege they were injured from those products. Plaintiffs failure to show injury from these products proved fatal to their personal jurisdiction claim. As the Superior Court noted, such a theory would subject a foreign corporation to any forum in which their products entered, regardless of their connection to a claim. Regarding Drexel, Plaintiffs attempted to show that Drexel contacts with Pennsylvania were “so substantial as to render it at home in Pennsylvania.” The Superior Court rejected this argument, noting that approximately 5% of Drexel revenue came from the Pennsylvania market, Drexel sole presence in Pennsylvania was a leased warehouse in Bucks County, and Drexel did not directly advertise or market its products in Pennsylvania. Plaintiffs also alleged that personal jurisdiction existed over Drexel because Drexel registered its products under Pennsylvania’s Pesticide Control Act. The Superior Court rejected this argument, as well, noting that the Pesticide Control Act does not notify its registrants of their consent to jurisdiction by registering. Finally, the Superior Court declined to follow Plaintiffs’ argument that UPL had an “alter-ego” subsidiary based in Pennsylvania. Under the “alter-ego” theory, jurisdiction is granted if the degree of control exercised by the parent is greater than normally associated with common ownership and control. The Superior Court agreed with UPL, noting that such control over UPL’s subsidiary did not exist. Specifically, UPL did not own any of the subsidiary’s stock, there were no common officers, directors, or employees, no interchange of managerial personnel, and did not share financial accounts. As a result, the Superior Court found that Plaintiffs were unable to show personal jurisdiction through this theory. Although Plaintiffs’ personal jurisdiction attempts were unsuccessful, this opinion serves as an illustration of the various theories of personal jurisdiction the defense attorney may face. Thanks to Benjamin G. Ferrell for this post. Please contact Vincent Terrasi if you have any questions or comments. Previous Next Contact

News New York Court of Appeals Takes on Late Notice…Again April 6, 2016 < Back Share to: Although the issue of late notice may have calmed in recent years, cases still bubble up through the judicial system and reach the Court of Appeals. In Spoleta Const LLC v Aspen Ins UK Ltd, the Fourth Department asked the Court of Appeals to review whether an additional insured provided sufficient notice to trigger coverage. Spoleta, the general contractor for a construction project, entered into an agreement with subcontractor Hub-Langie Paving. The agreement required Hub to defend and indemnify Spoleta as an additional insured for claims of bodily injury arising out of Hub’s work. Thereafter, an employee of Hub was injured at the worksite in 2008. Spoleta was first placed on notice of the accident in December 2009 when it received a notice of intent to make a claim from the worker’s attorney. On January 27, 2010, Spoleta sent a letter to Hub providing details surrounding the claim, and advising Hub of its contractual duties to defend under the Spoleta-Hub agreement. The January letter also requested that Hub place its insurance carrier on notice of the claim. The January letter and the Spoleta-Hub contract were timely forwarded to Aspen. After the worker commenced suit against Spoleta in April 2010, Spoleta requested defense and indemnification from Aspen as an additional insured under Hub’s policy. Aspen disclaimed additional insured coverage to Spoleta on the basis of late notice. Aspen argued that Spoleta received notice of the occurrence in 2009, but did not seek coverage as an additional insured until it was served with the complaint. Aspen argued that the January letter only provided notice of a claim for contractual indemnification, and it there was no indication that Spoleta sought additional insured coverage. Spoleta commenced a declaratory judgment action against Aspen, but the complaint was dismissed by the trial court on a pre-answer motion. On appeal, the Forth Department reversed, but granted leave to appeal in light of a dissenting opinion. At issue for the Court of Appeals was whether the January letter constituted proper notice of claim for additional insured coverage. The Court of Appeals affirmed the Fourth Department, and rejected Aspen’s argument that the January letter only provided notice of a contractual indemnity claim. The Court held that the January letter simply requested defense and indemnity under the Spoleta-Hub contract without having to specifically invoke either the agreement’s additional insured or indemnification provisions. Moreover, the Court held that Aspen was made aware of how, when and where the “occurrence” took place and the nature and location of the alleged injuries. As a result, the Court found that the January letter satisfied the notice requirements of the Aspen policy, and reinstated the complaint. This case demonstrates the Court of Appeals’ reluctance to allow an insurer to escape coverage on a technicality. Aspen believed that the sole purpose of the January letter was to place it on notice that Spoleta intended to make a contractual claim against Hub, and it was unaware whether Spoleta even qualified as an additional insured. Aspen even sent a letter to Spoleta acknowledging Spoleta’s contractual indemnification claim against Hub, and argued that it may have conducted its investigation differently if it knew Spoleta sought additional insured coverage. However, a review of the oral arguments shows that several judges on the Court found this argument to be highly tenuous since Aspen was in receipt of the Spoleta-Hub agreement where Spoleta was named as an additional insured. The judges focused on the fact that compliance with notice provisions are necessary because an insurer must have the opportunity to investigate an occurrence or claim to preserve its rights. Specifically, Judge Pigott stated the improbability of an insurer receiving notice of a claim and saying, “oh, well, we're not going to go and investigate this because they're saying they're looking for indemnification as opposed to [additional insured] coverage.” The decision seems to accept the realities of construction projects; where there may be multiple parties seeking additional insured coverage, but AIs may not know the proper insurer to tender. In a perfect world, an AI would use trigger words such as “pick up the defense and indemnification” or “we are tendering a defense and indemnification to you under the policy.” However, the decision in Spoleta adopts substance over form and makes clear that such words are not always necessary. Notice provisions may be satisfied by an AI as long as the AI states that it seeks defense and indemnification, provides necessary information regarding the “occurrence,” and advises the party to place its insurer or notice. Thanks to Dan Beatty for his contribution to this post. If you have any questions about this post, please email Brian Gibbons for additional information.   Previous Next Contact

News Just The Facts Please November 11, 2021 < Back Share to: Few things are more irritating than having to tell a client, in a first party insurance claim, that it must pay prevailing party attorney’s fees and costs that are two, three, four times or more than that recovered by the insured. This is especially true in Florida where it often seems that excessive, legally unsupported, fee and cost awards are not the exception, but the norm. In Citizens Property Insurance Corp. v. Casanas, 2021 LEXIS 14270; 2021 WL 4978608 (Fla. 3d DCA October 27, 2021), a simple hurricane roof damage case, the claim had been “minimally litigated,” with no depositions, no dispositive motions, few hearings and no trial. After the claim was settled at mediation for $35,000, the insured moved for and received a prevailing party fee and cost award of $150,600. On appeal, the Casanas Court found that the party seeking a fee and cost award must provide evidentiary support for the amounts demanded and where the “record on appeal is devoid of substantial competent evidence to support the order, the appellate court will reverse the award” and not allow the insured a do over, a second bite at the apple, on remand. Applying this reasoning to the case at hand, the court held that while the “hourly rates billed for each attorney were reasonable,” the number of hours awarded was “arbitrary and unsupported” and that on remand the trial court should award attorney’s fees for 81.1 hours of work, “the only number for which there is competent, substantial evidence adduced by the defendant's fee expert following a line-by-line accounting of the compensable hours.” The appellate court also reversed the cost order, finding that there was no evidentiary basis for the costs awarded. Finally, finding that there was no evidentiary basis for awarding an hourly fee enhancement multiplier, the Casanas Court struck that award too. While Casanas does not change the method of determining prevailing party fee and costs awards, it does signal that Florida’s appellate courts will not rubber stamp excessive, legally unsupported, fee and cost awards. Casanas also stands for the proposition that an insured seeking prevailing party fees and costs only gets one bite at the apple and if they don’t get it right the first time, there are no do overs. Thanks to Charles M-P “Chip” George for his contribution to this post. Please contact Chip with any questions. Previous Next Contact

News John Doe, with a Phantom Vehicle, on a Highway (NJ) May 11, 2018 < Back Share to: Wednesday, May 9, 2018 – The infamous phantom vehicle reared its ugly (cylinder) head a few weeks ago in Krzykalski v. Tindall, the facts of which otherwise are rather innocuous: plaintiff Krzykalski was attempting to make a left-hand turn when he was rear-ended by defendant Tindall. Both agreed, however, that a third driver – our phantom vehicle – unexpectedly made a left-hand turn from the right lane, cutting off both parties. Plaintiff was able to stop without striking the phantom vehicle; defendant struck the rear of plaintiff’s vehicle. At trial, plaintiff made two requests: (1) to enter a directed verdict on liability against defendant Tindall for the rear-end impact and (2) to remove John Doe from the jury verdict sheet. The trial judge denied both requests. The jury, free to apportion liability between defendant Tindall and John Doe, found Doe to be 97% at fault for the accident. Since the jury awarded damages in the amount of $107,890, the trial judge entered judgment against defendant Tindall in the amount of $3,236.70 – 3% of the total award. Plaintiff, unhappy with the minor recovery against the only other named party, appealed. In his appeal, plaintiff focused on the trial judge’s refusal to strike John Doe from the jury verdict sheet, thereby allowing the jury to apportion fault to an unknown party. Since “a fictitious party is not a party to a suit,” Bencivenga v. J.J.A.M.M., Inc., 258 N.J.Super. 399, 407 (App.Div.), certif. denied, 130 N.J. 598 (1992), the argument goes, and the trier of fact is to determine “each party’s negligence,” N.J.S.A. 2A:15-5.2(b), allowing the jury to apportion liability to a fictitious non-party was reversible error. The Appellate Division, in Krzykalski v. Tindall, 448 N.J.Super. 1 (App.Div. 2016), disagreed and affirmed the trial judge’s rulings. Plaintiff petitioned the New Jersey Supreme Court for certification. To appreciate plaintiff’s argument, it is necessary to take a step back to examine the facts of Bencivenga, supra. In that case, a nightclub patron sued the club after he was punched in the face by an unknown patron. Id. at 402. Contrary to Krzykalski, the trial court refused to allow the jury to consider the John Doe defendant’s negligence. Ibid. The Appellate Division, on appeal, relied on policy grounds to affirm the trial court’s ruling: since the nightclub was more likely to know the assailant’s identity, it was forced to either identify him and mitigate its share of fault or bear the cost. Id. at 410. Plaintiff therefore argued the same policy considerations involving phantom patrons apply to phantom vehicles. The New Jersey Supreme Court disagreed. In affirming the Appellate Division’s final judgment, the Supreme Court explicitly concluded that “’phantom vehicles’ driven by known but unidentified motorists that play a part in an accident presumptively may be allocated fault.” (19-20). Referring to Bencivenga as an exception to the general rule, the Court explained that a defendant driver is inherently in a different position than a commercial nightclub with patrons and invitees, and was not more likely than plaintiff to know John Doe’s identity in this case. (17, 20). As a result, the general rule applies, and the jury properly apportioned fault between defendant Tindall and John Doe. (21). Thanks to Brent Bouma for his contribution to this post. Please contact Tony Pinto for more information. Previous Next Contact