SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued January 3, 2005 -- Decided March 21, 2005
LONG, J., writing for a unanimous Court.
In this appeal, the Court addresses the interplay of the statute of repose protecting designers and builders, N.J.S.A. 2A:14-1.1, and the rule governing New Jersey’s fictitious-party practice. R. 4:26-4.
On March 11, 1999, Wendy Greczyn, plaintiff, tripped and fell on a staircase
in the Colgate-Palmolive office center in Piscataway, New Jersey. On October 3, 2000,
Greczyn filed suit against the building owner and several fictitious defendants, identified as
the designers and builders of the staircase. During discovery, Greczyn learned that Kling
Lindquist was the designer involved in the renovation and construction of that staircase
and that Kling Lindquist had substantially completed its work in November 1990, nearly
ten years prior to Greczyn’s initial complaint. In October 2001, a trial judge
granted Greczyn’s motion to amend her complaint, substituting Kling Lindquist for a fictitious
defendant. Greczyn filed an amended complaint in December 2001, explicitly naming Kling Lindquist
in the suit for the first time.
In March 2003, a different trial judge granted Kling Lindquist’s motion for summary
judgment based on the ten-year statute of repose found in N.J.S.A. 2A:14-1.1. The
Appellate Division affirmed, concluding that a statute of repose does not permit “relation
back” under fictitious-party practice and that because a statute of repose is substantive,
it cannot be tolled under equitable principles.
The Supreme Court granted plaintiff’s petition for certification.
HELD: When plaintiff’s injury and the filing of a lawsuit occur within the
period of repose, utilization of our fictitious-party practice allows a previously unknown, although
functionally identified, designer or builder to be named after the expiration of the
period of repose, so long as plaintiff has acted diligently.
1. Through its statute of repose, New Jersey provides protection from liability for
architects and builders after a specific time period. N.J.S.A. 2A:14-1.1. The discovery rule
provides that the statute of limitations does not start to run until a
victim discovers or should have discovered that a wrong has been inflicted. The
“completed and accepted rule” provided that an architect’s or a builder’s liability for
negligent design or construction of a structure “terminated upon the completion of the
professional’s work and its acceptance by the property owner.” E.A. Williams,
82 N.J. 160, 165-166 (1980). We repudiated the “completed and accepted rule” outright in Totten
v. Gruzen,
52 N.J. 202 (1968), a year after the enactment of N.J.S.A.
2A:14-1.1. (Pp. 4-7)
2. The purpose of the fictitious-party practice rule, R. 4:26-4, is to render
timely the complaint filed by a diligent plaintiff, who is aware of a
cause of action against an identified defendant but does not know the defendant’s
name. A specific claim must be filed against a described, though unnamed party,
within the statute of limitations and plaintiff must diligently seek to identify the
fictitiously-named defendant. Despite not being called by name, Greczyn’s complaint fully identified “persons”
by function: those John Does who “designed a certain interior staircase” at the
Colgate-Palmolive office complex in Piscataway. In other words, though claiming against as yet
“unnamable” persons, Greczyn’s action was brought against “persons” nonetheless. (Pp. 8-10)
3. Kling Lindquist suggests that our prior jurisprudence is dispositive of the correctness
of the Appellate Division’s holding that Greczyn’s suit is barred. We disagree. In
Rosenberg, the complaint was filed thirty-three years after the “improvement” and in Stix,
Hudson County and O’Connor, sixteen, fifteen and eleven years later, respectively. The statute
of repose, by its very terms – “no action…shall be brought…more than ten years
after…construction” – bars those claims. In contrast to them, Greczyn both was injured and
filed an action within the ten-year period of repose. (The Court then discusses
out-of-state cases at Pp. 14-18) (Pp. 10-18)
4. We are satisfied that allowing the use of fictitious-party practice in these
circumstances is sound. N.J.S.A. 2A:14-1.1 does not specifically preclude importation of fictitious-party practice,
thus rendering it open to interpretation on that issue, and the facts presented
are exactly what fictitious-party practice was developed for. The Legislature intended to limit
the time within which a cause of action may arise against an architect
or builder to ten years from the date construction is substantially completed. Thus,
injuries sustained or suits filed after the ten-year period are barred. Greczyn’s injury
arose, and the complaint was filed, within the prescribed ten-year window under the
fictitious-party practice rule. Allowing fictitious-party practice in this context will not subject an
architect or a builder to liability for life or even to indefinite vulnerability
for a structural defect: A plaintiff who is injured or who files suit
after ten years is simply out of time, and a plaintiff who is
injured and files within ten years but is dilatory in seeking the fictitious
party’s name is likewise barred. Where the elements of timely filing and diligence
are satisfied, the potential exposure of a builder or designer is finite and
circumscribed, thus meeting the legislative intent underlying N.J.S.A. 2A:14-1.1. (Pp. 18-20)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED
to the trial court for further proceedings consistent with this opinion, and in
particular for disposition of the question of Greczyn’s diligence.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join in
JUSTICE LONG’s opinion.
SUPREME COURT OF NEW JERSEY
A-
2 September Term 2004
WENDY GRECZYN,
Plaintiff-Appellant,
and
STEVEN FISHMAN,
Plaintiff,
v.
COLGATE-PALMOLIVE,
Defendant,
and
KLING LINDQUIST,
Defendant-Respondent,
and
JOHN DOES (1-20) AND ABC CORPS. (1-20),
Defendants.
Argued January 3, 2005 --– Decided March 21, 2005
On certification to the Superior Court, Appellate Division, whose opinion is reported at
367 N.J. Super. 385 (2004).
Jared P. Kingsley argued the cause for appellant (Bumgardner, Ellis, McCook & Kingsley,
attorneys).
Andrew J. Carlowicz, Jr., argued the cause for respondent (Hoagland, Longo, Moran, Dunst
& Doukas, attorneys).
JUSTICE LONG delivered the Opinion of the Court.
On this appeal, we address the interplay of the statute of repose protecting
designers and builders, N.J.S.A. 2A:14-1.1, and the rule governing our fictitious-party practice. R.
4:26-4. The case arose when plaintiff was injured on a staircase in a
building approximately nine years after its completion. One month prior to the expiration
of the ten-year statute of repose, plaintiff filed suit against the building’s owner
and several fictitious defendants, identified as the designers and builders of the staircase.
A year after the expiration of the ten-year period, plaintiff amended her complaint,
substituting the name of the designer of the staircase for one of the
fictitious defendants. The designer moved for summary judgment, which the trial court granted
and the Appellate Division affirmed. We granted plaintiff’s petition for certification and now
reverse.
We hold that, when plaintiff’s injury and the filing of her lawsuit occur
within the period of repose, utilization of our fictitious- party practice allows a
previously unknown, although functionally identified, designer or builder to be named after the
expiration of the period of repose, so long as plaintiff has acted diligently.
I
The essential facts in the case are not in dispute. Plaintiff, Wendy Greczyn
tripped and fell on a staircase in the Colgate-Palmolive office center in Piscataway
on March 11, 1999. On October 3, 2000, Greczyn filed suit to recover
damages for personal injuries allegedly arising from that fall.
See footnote 1
She joined her employer,
Colgate-Palmolive, solely for the purposes of discovery and named as additional defendants John
Does, one through twenty, and ABC Corps., one through twenty. Greczyn described fictitious
defendants eleven through fifteen as the designers of the staircase on which she
fell, and then, during discovery, learned that Kling Lindquist was the designer involved
in the renovation and construction of that staircase. Kling Lindquist substantially completed its
work on the staircase in November 1990, nearly ten years prior to Greczyn’s
initial complaint.
See footnote 2
In October 2001, a trial judge granted Greczyn’s motion to amend
her complaint, substituting Kling Lindquist for a fictitious defendant. Greczyn filed an amended
complaint in December 2001, explicitly naming Kling Lindquist in the suit for the
first time.
In March 2003, a different trial judge granted Kling Lindquist’s motion for summary
judgment based on the ten-year statute of repose found in N.J.S.A. 2A:14-1.1.
The Appellate Division affirmed, relying on the distinction between a statute of
limitations and a statute of repose. Acknowledging the considerations undergirding fictitious-party practice, the
court nevertheless concluded that a statute of repose does not permit “relation back”
under fictitious party practice because relation back “would result in the complete evisceration
of the period of repose the Legislature intended to confer.” Greczyn v. Colgate
Palmolive,
367 N.J. Super 385, 393 (App. Div. 2004). Moreover, the court concluded
that because a statute of repose is substantive, it cannot be tolled under
equitable principles. Id. at 394. This petition for certification ensued.
180 N.J. 453.
II
The parties reiterate the arguments they advanced before the Appellate Division. Greczyn
contends that both the accident and the original lawsuit occurred within the ten-year
statute of repose and that that is all that is required. She argues
that the occurrence of the injury and the filing of suit within the
ten-year period is what distinguishes this case from the cases cited by Kling
Lindquist and the Appellate Division. She further argues that any concern over endlessly
extending the liability of designers and builders into the future are overstated in
light of the requirement of diligence in fictitious-party practice. Finally, she urges “substantial
compliance” as an alternative ground for reversing the Appellate Division.
Kling Lindquist counters that the plain language of N.J.S.A. 2A:14-1.1 prohibits the
importation of the fictitious-party practice rules into the statute of repose; that that
statute created substantive rights that we are without power to alter; that our
long-standing jurisprudence supports the imperviousness of the statute of repose to Greczyn’s attack;
and that equitable notions such as substantial compliance have no place in a
statute of repose analysis.
III
Through its statute of repose, New Jersey provides protection from liability for
architects and builders after a specific time period. N.J.S.A. 2A:14-1.1 provides in relevant
part:
No action . . . to recover damages for any deficiency in the
design, planning, surveying, supervision or construction of an improvement to real property .
. . shall be brought against any person performing or furnishing the design,
planning, surveying, supervision of construction of such improvement to real property, more than
10 years after the performance or furnishing of such services and construction.
The legislative history of the act is singularly unhelpful. As we observed in
Rosenberg v. Town of North Bergen,
61 N.J. 190, 194 (1972), it is
“meager and unrevealing.” See also O’Connor v. Altus,
67 N.J. 106, 121 (1975)
(stating that legislative history is “of little assistance”). We do know this however:
the adoption of the discovery rule and the repudiation of the “completed and
accepted rule” were two “unrelated developments in the law [that] may well have
provided the motivation for [N.J.S.A. 2A:14-1.1].” Rosenberg, supra, 61 N.J. at 194.
The discovery rule provides that the statute of limitations does not start to
run until a victim discovers or should have discovered that a wrong has
been inflicted. Fernandi v. Strutlly,
35 N.J. 434 (1961). The advent of the
discovery rule exposed defendants, including architects and builders, to “potential liability for injuries
caused by defective workmanship [that] would last indefinitely, inasmuch as many defects would
often not be discovered or give rise to a claim for damages until
an injury had in fact occurred.” E.A. Williams, supra,
82 N.J. 160,at 165
(1980) (citing O’Connor v. Altus, supra, 67 N.J. at 117); Lunch, “Why Statutes
of Limitations?” 22 Consulting Engineer, 70, 70-71 (February 1964)).
The “completed and accepted rule” provided that an architect’s or a builder’s
liability for negligent design or construction of a structure “terminated upon the completion
of the professional’s work and its acceptance by the property owner.” Id. at
165-66. We repudiated the “completed and accepted rule” outright in Totten v. Gruzen,
52 N.J. 202 (1968), a year after the enactment of N.J.S.A. 2A:14-1.1. As
we have pointed out, the “tendency away from the completed and accepted rule
was so clearly established as to make it reasonable to assume that the
Legislature took that trend into account in enacting the statute.” O’Connor, supra, 67
N.J. at 118 (citing Rosenberg, supra, 61 N.J. at 197 n.2). The demise
of the “completed and accepted” rule “left those involved in the design and
construction of improvements to real property vulnerable indefinitely to liability for injuries arising
from a structure’s defect.” E.A. Williams, supra, 82 N.J. at 166 (citing O’Connor,
supra, 67 N.J. at 117-18; Rosenberg, supra, 61 N.J. at 197-98). N.J.S.A. 2A:14-1.1
was “a legislative response seeking to delimit th[at] greatly increased exposure,” Rosenberg, supra,
61 N.J. at 194, and to “prevent ‘liability for life’ against contractors and
architects.” Russo Farms, Inc. v. Vineland Board of Education,
144 N.J. 84, 117
(1996).
IV
The fictitious-party practice rule provides:
In any action, irrespective of the amount in controversy, other than an action
governed by R. 4:4-5 (affecting specific property or a res), if the defendant’s
true name is unknown to the plaintiff, process may issue against the defendant
under a fictitious name, stating it to be fictitious and adding an appropriate
description sufficient for identification. Plaintiff shall on motion, prior to judgment, amend the
complaint to state defendant’s true name, such motion to be accompanied by an
affidavit stating the manner in which that information was obtained. If, however, defendant
acknowledges his or her true name by written appearance or orally in open
court, the complaint may be amended without notice and affidavit. No final judgment
shall be entered against a person designated by a fictitious name.
[R. 4:26-4.]
The purpose of the rule is to render timely the complaint filed by
a diligent plaintiff, who is aware of a cause of action against an
identified defendant but does not know the defendant’s name. Gallagher v. Burdette-Tomlin Hosp.,
318 N.J. Super 485, 492 (App. Div. 1999), aff’d,
163 N.J. 38 (2000).
Judge Pressler’s comment to the rule explains what it is not intended to
cover:
It does not apply if the plaintiff has properly designated some defendants by
fictitious names and then later discovers a cause of action against undescribed defendants
whom he then seeks to join. Id. Nor is the rule applicable where
a plaintiff is unaware that an injury was caused by an identifiable defendant.
See Caravaggio v. D’Agostini,
166 N.J. 237, 244 n.1 (2001). Moreover, the rule
will not protect a plaintiff who had ample time to discover the unknown
defendant’s identity before the running of the statute of limitations. See Matynska v.
Fried,
175 N.J. 51, 53 (2002).
[Pressler, Current N.J. Court Rules, Comment on R. 4:26-4 (2005).]
Put another way, for the rule to operate, a specific claim must be
filed against a described, though unnamed party, within the statute of limitations and
plaintiff must diligently seek to identify the fictitiously-named defendant. That is the backdrop
for our inquiry.
V
Greczyn’s fundamental argument is that this case is a perfect paradigm for
invocation of the fictitious-party practice rule in that she sustained an injury and
filed suit -- identifying Kling Lindquist, although not by name -- within the
ten year repose period. Kling Lindquist counters that the plain language of N.J.S.A.
2A:14-1.1 prohibits any action against a “person” after ten years and that although
Greczyn filed suit inside that window, it was not against a “person” within
the meaning of the statute. That particular plain language argument is unpersuasive because
an entirely different interpretation of the statute is plausible. Despite not being called
by name, Greczyn’s complaint fully identified “persons” by function: those John Does who
“designed a certain interior staircase” at the Colgate-Palmolive office complex in Piscataway. In
other words, though claiming against as yet “unnameable” persons, Greczyn’s action was brought
against “persons” nonetheless. Therefore, the plain language of the statute is not dispositive
of the issue presented here.
VI
We thus look beyond the words of the statute for enlightenment. As we
have said, the legislative history, ordinarily a source of information, is not of
assistance. Kling Lindquist suggests that our prior jurisprudence is dispositive of the correctness
of the Appellate Division’s holding that Greczyn’s suit is barred. We disagree.
A.
In Rosenberg, supra, plaintiff sued for injuries she sustained in 1968 when she
caught her heel in a fissure in the roadbed of Bergenline Avenue in
North Bergen. The road had been repaved in 1935. The contractors were granted
summary judgment under N.J.S.A. 2A:14-1.1. The Appellate Division reversed on the ground that
a road is not “an improvement to real property” within the meaning of
the act. We granted certification and reversed the narrow holding of the Appellate
Division regarding the sweep of the statute. In so doing, we had occasion
to comment on the character of N.J.S.A. 2A:14-1.1:
It seems important, first, to examine the nature of this law. In an
important respect it is unlike the typical statute of limitations. Commonly such a
statute fixes a time within which an injured person must institute an action
seeking redress, and generally this time span is measured from the moment the
cause of action accrues. Here such is not the case. The time within
which suit may be brought under this statute is entirely unrelated to the
accrual of any cause of action.
Where a claim for redress is based upon negligent injury to person or
property, the cause of action accrues when there has been a negligent act
with proximately resulting injury or damage. The careless act itself is not enough
to give rise to a cause of action; there must also be consequential
injury or damage. Rosenau v. City of New Brunswick, supra, 51 N.J. at
137-139. Thus plaintiff’s alleged cause of action did not arise until she fell
and sustained injury. Of course this was many years after the ten-year period
fixed by the statute had expired. She claims that the statute, in its
application to her, amounts to a deprivation of due process, since, as she
expresses it, the statute bars her cause of action before it has arisen.
This formulation suggests a misconception of the effect of the statute. It does
not bar a cause of action; its effect, rather, is to prevent what
might otherwise be a cause of action, from ever arising. Thus injury occurring
more than ten years after the negligent act allegedly responsible for the harm,
forms no basis for recovery. The injured party literally has no cause of
action. The harm that has been done is damnum absque injuria -- a
wrong for which the law affords no redress. The function of the statute
is thus rather to define substantive rights than to alter or modify a
remedy. The Legislature is entirely at liberty to create new rights or abolish
old ones as long as no vested right is disturbed.
[Rosenberg, supra, 61 N.J. at 199-200.]
We went on to hold that plaintiff’s action, brought thirty years after the
repaving of the roadway, was barred.
In O’Connor v. Altus, supra, an infant plaintiff asserted claims against a builder
for injuries that occurred nine years after completion of the structure that she
alleged was negligently built. The action was filed sixteen months after the injury,
and thus outside the ten-year statute of repose. 67 N.J. at 120. The
state of the law at the time allowed a personal injury plaintiff to
pursue a claim if she asserted it within two years of becoming twenty-one.
Ibid. Applying N.J.S.A. 2A:14-1.1’s prohibition, and citing Rosenberg extensively, however, we concluded that
“the legislature did not intend the ten-year period after construction to be ‘expanded’
by reason of one’s infancy.” Id. at 123. Put another way, the infant
could not file suit after ten years.
In Hudson County v. Terminal Constr. Corp.,
154 N.J. Super. 264 (App. Div.
1977), certif. denied,
75 N.J. 605 (1978), the court declined to extend the
statute of repose to allow Hudson County to assert a claim for defects
discovered in the county administration building in 1975 against the builder who completed
construction in 1960. Hudson County’s proposed exception to the ten-year statute of repose
for allegations of fraud was unavailing in the face of the court’s determination
that “[s]uch an exception would quickly engulf the statute [] and render it
worthless.” Id. at 269.
In Stix v. Greenway Development Company, Inc.,
185 N.J. Super. 86 (App. Div.
1982), the Appellate Division affirmed a summary judgment dismissing plaintiff’s 1980 complaint against
a builder for negligent construction of a house completed prior to 1963. The
court stated that the “plain [and] unambiguous” language of N.J.S.A. 2A:14-1.1 makes no
exception for claims that are filed after expiration of the statute of repose,
even those based on a theory of fraudulent misrepresentation. Id. at 89-90.
We do not read those cases as dispositive of the issue before us.
In Rosenberg, the complaint was filed thirty-three years after the “improvement” and in
Stix, Hudson County and O’Connor, sixteen, fifteen and eleven years later, respectively. The
statute of repose, by its very terms -- “no action . . .
shall be brought . . . more than ten years after . .
. construction” -- bars those claims. In contrast to them, Greczyn both was
injured and filed an action within the ten-year period of repose.
B.
The Appellate Division cited several out-of-state cases as bearing on the issue presented
here. In Tindol v. Boston Hous. Auth.,
487 N.E.2d 488 (Mass. 1986), a
minor plaintiff, scalded in a public housing complex, commenced an action against the
Boston Housing Authority in 1979 and in 1984 sought to amend the complaint
to add architects and engineers. At the time, the statute of repose for
tort actions arising from improvements to real property prohibited any action commenced “more
than six years after the performance or furnishing of such design, planning, construction
or general administration.” Id. at 489 (quoting Mass. Gen. Laws c. 260, § 2b
(1984)). The relevant improvement was completed in 1977. Plaintiff argued that the amendment
adding an architecture firm and an engineering company “related back” to the original
filing. Id. at 490. The Supreme Judicial Court disagreed, concluding, “[A]pplication of the
relation-back doctrine would have the effect of reactivating a cause of action that
the Legislature obviously intended to eliminate.” Id. at 491 (quotation marks omitted).
Tindol was faced with a complaint that was filed outside the six-year statute
of repose and no fictitious-party filing was implicated. Tindol is thus not of
assistance in our present analysis except insofar as we agree that if Greczyn
had not commenced her action within the ten-year period, she could not avoid
the strictures of the repose statute.
Likewise, in Nett v. Bellucci,
774 N.E.2d 130 (Mass. 2002), a minor plaintiff
sought to amend a complaint and add a defendant before expiration of the
statute of repose but did not file the complaint until after expiration of
the statute. 774 N.E.
2d at 132-34. The court in Nett discussed statutes of
repose:
Both the statute governing medical malpractice tort claims involving minors, G.L. c. 231,
§ 60D, and the statute governing medical malpractice tort claims generally, G.L. c. 260,
§ 4, provide that “in no event shall any such action be commenced more
than seven years after occurrence of the act or omission which is the
alleged cause of the injury upon which such action is based” (emphasis added).
Like all the statutes of repose, “[t]he effect [of these statutes] is to
place an absolute time limit on the liability of those within [their] protection
and to abolish a plaintiff’s cause of action thereafter, even if the plaintiff’s
injury does not occur, or is not discovered, until after the statute’s time
limit has expired.” McGuiness v. Cotter,
412 Mass. 617, 622,
591 N.E.2d 659
(1992), citing Klein v. Catalano,
386 Mass 701, 702,
437 N.E.2d 514 (1982).
Unlike statutes of limitation, statutes of repose may not be “tolled” for any
reason, as “tolling” would deprive the defendant of the certainty of the repose
deadline and thereby defeat the purpose of a statute of repose. See Protective
Life Ins. Co. v. Sullivan, supra at 631 n.19,
682 N.E.2d 624, citing
Sullivan v. Iantosca,
409 Mass. 796, 798,
569 N.E.2d 822 (1991). The only
way to satisfy the “absolute time limit” of a statute of repose is
to “commence” the action prior to the expiration of that time limit. McGuinness
v. Cotter, supra. See Aldrich v. ADD Inc.,
437 Mass 213, 221,
770 N.E.2d 447 (2002).
[Id. at 134-35.]
The court went on to declare that for the purposes of the statute
of repose, a case “commences” on the date of the filing of a
motion for leave to amend a complaint to add a party, thus rendering
plaintiff’s claim timely. Id. at 143. In so doing, the court rejected a
strict definition of commencement (filing of the complaint) stating: “We recognize that statutes
of repose are harsh, but we will not adopt a needlessly artificial definition
of ‘commencement’ of actions brought by way of amended complaints that would make
a harsh rule even harsher.” Id. at 142. Again, as in Tindol, nothing
in Nett is dispositive of this case in which Greczyn in fact both
was injured and filed suit within the time constraints of the statute of
repose.
Contrariwise, the Alabama Supreme Court has faced the exact issue that is before
us. In Marsh v. Wenzel,
732 So.2d 985 (1998), plaintiff sued her
surgeon and various fictitious physicians in 1995, alleging negligence in failing to identify
a tissue mass in her breast as malignant in 1993. Id. at 986.
In 1997, plaintiff sought to add as a defendant the pathologist who analyzed
the tissue mass. Id. at 987. The Circuit Court granted summary judgment to
the pathologist, asserting that fictitious-party practice cannot be imported into Alabama’s Medical Liability
Act, Ala. Code § 6-5-482a, a statute of repose that prescribes: “[I]n no event
may [an] action be commenced more than four years after [the alleged medical
negligence occurred].” The Alabama Supreme Court rejected that notion and determined that the
act
speaks of the commencement of an action as the necessary operative event. It
does not expressly exclude the availability of fictitious-party practice and its doctrine of
relation back. Once the plaintiff complies with [Alabama’s fictitious-party practice rule], in an
action that otherwise is timely filed, the doctrine of relation back . .
. permits the plaintiff to satisfy the prerequisite that the action “be commenced”
as set forth in § 6-5-482.
[Id. at 988.]
The court concluded, however, that the plaintiff “knew the identity of the pathologist
before the expiration of the four-year period . . . . [The plaintiff]
[could not] reasonably [have been] deemed to have been ignorant of matters clearly
set forth in the records.” Id. at 988. Thus, because she was not
diligent in ascertaining the identity of a fictitious party, the plaintiff was barred
from pursuing her otherwise timely claim.
In Oliver v. Woodward,
824 So.2d 693 (2001), a victim of medical
malpractice filed a complaint, including several fictitiously-named doctors, nineteen months after being injured.
Id. at 694. After several years of discovery and the expiration of the
repose period, plaintiff learned the identity of the emergency-room doctor who had provided
treatment. She sought to add the doctor’s name the following day. Id. at
696. The trial court granted summary judgment to the physician, but the Alabama
Supreme Court reversed, allowing plaintiff to employ fictitious-party practice and amend the complaint
after expiration of the period of repose. Id. at 697-98.
VII
We are satisfied that the Alabama approach, allowing the use of fictitious-party practice
in these circumstances, is sound.
See footnote 3
First, N.J.S.A. 2A:14-1.1 does not specifically preclude importation
of fictitious-party practice, thus rendering it open to interpretation on that issue. Second,
the facts presented are exactly what fictitious-party practice was developed for -- to
protect a diligent plaintiff who is aware of a cause of action against
a defendant but not the defendant’s name, at the point at which the
statute of limitations is about to run.
Kling Lindquist properly underscores that N.J.S.A. 2A:14-1.1 is not a statute of limitations
but one of repose. However, that distinction does not end the inquiry. Even
statutes of repose, also termed “substantive” statutes (when “the time in which the
action must be commenced expires, both the remedy and the right are barred[,]”
LaFage v. Jani,
166 N.J. 412, 421-22 (2001)), “need not necessarily be construed
rigidly.
Negron [v. Llarena,
156 N.J. 296, 304 (1988)]
confirmed that our ‘approach
to substantive statutes of limitations has evolved to one that recognizes that their
application depends on statutory interpretation focusing on legislative intent and purposes.’”
See footnote 4
LaFage, supra,
166 N.J. at 422.
Plainly, the Legislature intended to limit the time within which a cause of
action may arise against an architect or builder to ten years from the
date construction is substantially completed. Thus, injuries sustained or suits filed after the
ten-year period are barred. Here, Greczyn’s injury arose, and the complaint was filed,
within the prescribed ten-year window, under the fictitious-party practice rule. The question is
whether allowing that procedure will violate the Legislative intent underlying N.J.S.A. 2A:14-1.1. Negron,
supra, 156 N.J. at 304. We think not.
Contrary to Kling Lindquist’s view, allowing fictitious-party practice in this context will not
subject an architect or a builder to liability for life or even to
indefinite vulnerability for a structural defect. Two conditions preclude such endless exposure. The
first is the filing within ten years, which is the statutorily authorized period,
and the second is the requirement of due diligence. With respect to the
former, a plaintiff who is injured or who files suit after ten years
is simply out of time. Regarding the latter, a plaintiff who is injured
and files within ten years but is dilatory in seeking the fictitious party’s
name is likewise barred. Where the elements of timely filing and diligence are
satisfied, the potential exposure of a builder or designer is finite and circumscribed,
thus meeting the legislative intent underlying N.J.S.A. 2A:14-1.1. Only this reading reconciles the
statute and the rule.
VIII
We therefore reverse the judgment of the Appellate Division and remand the case
to the trial court for disposition of the question of Greczyn’s diligence, an
issue that was not reached originally because the court declined to recognize the
applicability of fictitious-party practice in these circumstances. This ruling makes it unnecessary for
us to address Greczyn’s “substantial compliance” argument.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join in
JUSTICE LONG’s opinion.
SUPREME COURT OF NEW JERSEY
NO. A-2 SEPTEMBER TERM 2004
ON CERTIFICATION TO Appellate Division, Superior Court
WENDY GRECZYN,
Plaintiff-Appellant,
and
STEVEN FISHMAN,
Plaintiff,
v.
COLGATE-PALMOLIVE,
Defendant,
and
KLING LINDQUIST,
Defendant-Respondent.
DECIDED March 21, 2005
Chief Justice Poritz PRESIDING
OPINION BY Justice Long
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST
Footnote: 1
Steven Fishman, who was Greczyn’s husband, was an original plaintiff. He has
since been dismissed from the case.
Footnote: 2
In Russo Farms, Inc. v. Vineland Bd. of Educ.,
144 N.J. 84, 117-19
(1996), we held that the statute of repose, codified at N.J.S.A. 2A:14-1.1, commences
with “substantial completion”, i.e., when the certificate of occupancy is issued. The parties
stipulate that the certificate of occupancy for the Colgate-Palmolive facility was issued on
November 8, 1990. Greczyn’s October 2000 filing was therefore within the ten-year statute
of repose.
Footnote: 3
Although we agree with the Alabama Supreme Court’s reconciliation of its fictitious-party practice
and statute of repose, we differ with its characterization of the situation as
“relation-back”. Relation-back is a way of justifying the belated addition of a new
claim or a new party. Fictitious-party practice renders the initial filing against the
identified but unnamed defendant timely in the first instance, subject only to diligent
action by the plaintiff to insert defendant’s real name.
Footnote: 4
In Rosenberg, supra, we commented that N.J.S.A. 2A:14-1.1 is “unlike the typical statute
of limitations[;]” and that “[a]ll statutes limiting in any way the time within
which a judicial remedy may be sought are statutes of repose.” 61 N.J.
at 201.