WENDY GRECZYN v. COLGATE-PALMOLIVE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6646-04T16646-04T1

WENDY GRECZYN,

Plaintiff-Appellant,

v.

COLGATE-PALMOLIVE,

Defendant,

and

KLING-LINDQUIST,

Defendant-Respondent.

______________________________________________

 

Argued April 26, 2006 - Decided May 10, 2006

Before Judges Conley, Weissbard and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, MID-L-8177-00.

Jared P. Kingsley argued the cause for appellant (Bumgardner, Ellis, McCook & Kingsley, attorneys; Mr. Kingsley, on the brief).

Andrew J. Carlowicz argued the cause for respondent (Hoagland, Longo, Moran, Dunst & Doukas, attorneys; Stephen E. Slaven, on the brief; Mr. Carlowicz, of counsel and on the brief).

PER CURIAM

Following the Supreme Court's remand to the trial judge to determine "the question of [plaintiff's] [fictitious-party practice] diligence", Greczyn v. Colgate-Palmolive, 183 N.J. 5, 19 (2005), the trial judge concluded plaintiff had not exercised the necessary diligence. Plaintiff now appeals the July 29, 2005, order granting summary judgment to the late named party, Kling-Lindquist. In doing so, and after setting forth detailed findings of fact which the record fully supports, the trial judge explained:

Now this matter comes before the Court as a result of the Supreme Court remanding this matter to the trial court. See the Court's opinion in Greczyn v. [Colgate-]Palmolive, 183 N.J. 5 (2005). And the Court specifically held as follows in that case:

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.

[Id. at 7.]

And the Court concluded by saying:

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.

[Id. at 19.]

It was conceded by plaintiff's counsel that if, as part of that analysis, the Court is not required in the sense of it being either a factor or an element of a due diligence analysis, to determine what prejudice, if any, Kling-Lindquist suffered, that this matter was ripe for disposition by way of summary judgment.

This Court in reviewing the Supreme Court's opinion in Greczyn sees not a single mention of prejudice and found, as previously indicated in the, quote, "abridged" decision which I put on the record, that the Court's analysis is limited to the question of the plaintiff's diligence.

But I also went on to find that if somehow or other prejudice is to be considered by the Court, that I found that indeed Kling-Lindquist had been prejudiced by the passage of time, which the case law indicates in and of itself is prejudice, and by the fact that in the summer of 2001 which is some nine, perhaps ten months after the filing of the complaint in this action, Kling-Lindquist, as part of its records control and records retention and discarding policy, disposed of the file in connection with this particular project. And that constitutes prejudice.

An argument was also made that certain witnesses are no longer there, but some of those witnesses who are no longer there left well before this injury or this accident and some left after this complaint was filed.

Now in analyzing the question of diligence, as I indicated in my decision, in my abridged decision, I analyze the plaintiff's diligence or lack of diligence. And that analysis has to start with the plaintiff herself.

She fell at work. She fell on stairs at work on March 11, 1999. Her complaint was not filed until October 3rd, 2000. Now the explanation that she offered was that she really didn't know until shortly before that that she had suffered serious injuries and so she really didn't - hadn't decided to pursue a lawsuit until that time.

But she certainly was involved shortly after the accident, as reflected in her email activity, in some information-gathering with respect to the stairs in question. As pointed out by Mr. Carlowicz repeatedly at the first oral argument and the second oral argument, it would have been a relatively easy task for the plaintiff herself to ask internally of the appropriate people, when was the building constructed who constructed the building, and who was the architect.

Prior to litigation plaintiff's counsel certainly could have made that inquiry. As pointed out, a letter before complaint filed to the effect that we are going to start suit naming Colgate-Palmolive for discovery purposes only for us to learn the identity of the contractor and the architect of the project in question and other pertinent information. That in all probability there would have been a response to that letter providing the information. It certainly may very well may have avoided Colgate-Palmolive being named in a lawsuit for discovery purposes only.

Be that as it may, even if that wasn't done, if just utilizing the timeframe set forth in the court rules, complaint filed on October 3rd, 2000, on the assumption that the filed complaint is received by plaintiff's counsel by October 17, two weeks after it's filed and then sent for service, and service is effectuated within a week, that October the 24th, which would mean that thirty-five days from October the 24th an answer would have to have been filed by Colgate-Palmolive which would have taken us to the end of November of 2000.

Even if discovery requests were not served, as the court rules provide, when the complaint was served on Colgate-Palmolive, for example, a set of interrogatories or request for production of documents and the deposition notice could have been served with the complaint. But even if that wasn't done, if Colgate-Palmolive had been served in a timely fashion, they would have answered by the end of November, and if discovery requests were sent out within two weeks of receiving their answer, a - responses to interrogatories would have been received by the middle of January 2001, responses to document requests would have been received by the middle of December of 2000, and a deposition could have been taken during that time, even before documents were produced to obtain some basic information: When was the building constructed, who constructed the building, and who was the architect. But that wasn't done.

In fact, the Court generated a notice on February the 3rd, 2001 to dismiss the complaint for lack of prosecution. That in and of itself is a clear indication of a lack of diligent prosecution of a matter. Why was that notice generated? Because no answer was filed. Why was no answer filed? Because the complaint wasn't served.

Within a matter of a couple of days after receiving the notice, Colgate- Palmolive was served. Even given those timeframes, there was a lack of diligence by plaintiff's counsel in pursuing responses to discovery requests. The interrogatories that were propounded apparently were never answered. The request for production of documents that were propounded were not responded to for more than four months after they were served. They were served in April. If they had been responded to in May, the information would have - regarding the architect for the facility would have been disclosed, a motion to amend would have been filed, and Kling-Lindquist may very well have been in the case and served with a complaint before their file was destroyed.

Now, in connection with analyzing due diligence, the Court is particularly persuaded by the Appellate Division in Mears v. Sandoz [Pharms.], 300 N.J. Super. 622 (App. Div. 1997), which is similar to the instant matter.

In that case, the plaintiff, who was employed for a subcontractor working on the premises of Sandoz Chemicals, fell from scaffolding and was injured on December 11, 1990. On the date of the accident, plaintiff had ascended and descended the subject scaffolding several times. And on the third or fourth time he stepped on the upper platform and felt something collapse under his foot. The plaintiff fell approximately five feet before hitting his head and shoulders on the concrete steps and then rolled down the stairs approximately twenty-eight feet.

He was sent home by the shop foreman and did not return to work for one or two days.

The plaintiff consulted an attorney approximately one year later, in December 1991, and suit was filed [o]n December 8, 1992 against Sandoz, the plaintiff's employer, and several John Doe and John Roe defendants.

On May 19, 1994, the plaintiff moved to amend his complaint to add the general contractor Walsh Construction, which motion was denied. However, after reconsideration, the trial court granted the amendment on September 19, 1994. An amended complaint was filed on September 27, 1994.

Walsh then filed a third-party complaint against Beavertown Cast Stone. The plaintiff again sought to amend his complaint, this time to add Beavertown as a direct defendant, which the trial court granted. And a second amended complaint was filed on March 13, 1995.

Finally, the trial court granted the plaintiff leave to file a fourth amended complaint to add another fictitious party, [Daurio and Russo] and Sons Construction. Thereafter, Walsh and [Daurio] moved for summary judgment based on the plaintiff's failure to file the amended complaints substituting them for fictitious parties prior to the expiration of the statute of limitations.

The trial court granted summary judgment applications and the plaintiff appealed. On appeal, the Appellate Division held that the complaints against Walsh and [Daurio] were time barred as the plaintiff, quote "knew or should have known through the exercise of due diligence Walsh and [Daurio's] identity long before he claims he did."

The Mears court set forth the simple measures the plaintiff could have taken to identify the defendants, but failed to do, as follows, and I quote:

First, if plaintiff only believed, but did not know, that Walsh was a general contractor, a simple inquiry to Sandoz or Walsh itself would have revealed that Walsh was indeed the general contractor on the job. There is nothing in the record to show or even suggest that plaintiff could not have obtained information from Sandoz or Walsh. For that matter, if plaintiff had made a simple inquiry at the jobsite where he returned following the accident, he could have learned that Walsh was the general contractor. Moreover, even if plaintiff waited until he retained an attorney to determine the identity of the general contractor, a simple inquiry by his attorney to Sandoz or plaintiff's employer Rise Steel as to whom was the general contractor on the site would have revealed Walsh's identity. Additionally, had plaintiff or his attorney merely obtained and reviewed the contractor meeting minutes or the daily force reports of March 11, 1990, he or his attorney would have known Walsh's identity as Walsh's letterhead is on both documents. In fact, it is quite conspicuous on the contractor meeting minutes. Indeed, plaintiff does not even argue that Walsh's identity is not evident from the due documents. Thus, if plaintiff or plaintiff's attorney had used diligence, he or his attorney would have known Walsh's identity prior to the running of the statute of limitations.

[Id. at 631-32.]

In this case, the plaintiff began her investigation within days of her accident in a series of email messages. She documented prior injuries or mishaps with fellow employees on the atrium stairs. Clearly, she began to acquire information to support potential litigation almost immediately after her accident. Yet, she failed to do a simplest of inquiries or to make the simplest of inquiries which is of someone - or she could certainly have started up the chain of command with her boss to just ask simple questions: When was the building built, who built the building, and who was the architect.

Mr. Rode, who was there and in charge of the project, certainly could have answered those questions. She certainly could have gone to the Piscataway Township Planning Board to obtain that information.

As previously indicated, once plaintiff's counsel was retained prior to filing the complaint, plaintiff's counsel says once he filed the complaint naming the plaintiff's employer, he felt that he could not contact Colgate. But he certainly did not have to file suit against Colgate as quickly as he did. A letter prior to filing suit to the effect, I have been retained to represent your employee Greczyn - clearly, Colgate is aware that they could not be sued given the Worker's Comp bar. But a letter indicating that we intend to start suit against you naming you for discovery purposes only within x number of days unless you provide us with the following information: One, when was the building built; two, who constructed the building; three, who was the architect, that one would think that a response to the letter providing the information would have been forthcoming rather quickly.

But even putting all that aside, I go back to the filing of the lawsuit and how the lawsuit was prosecuted. And I find that it was not diligently prosecuted.

Complaint filed October 3, 2000. Nothing done except trying to straighten out with the court the tracking that was assigned to the complaint. That doesn't excuse the failure to serve the complaint on Colgate. That wasn't done until a court-generated notice of February 3rd, 2001 saying, we're going to dismiss this complaint for lack of prosecution. Then Colgate-Palmolive is served.

Then Colgate-Palmolive asks for and gets an extension of time to answer. Discovery requests aren't served until April and then they're not diligently followed up because Colgate is not responding, but plaintiff's counsel is not forcing Colgate to respond by filing motions to compel.

It's not until August of 2001 that - in response to a notice to produce served in April of 2001 that documents are finally in plaintiff's hands, documents that they could have had long ago, identifying Kling- Lindquist. That is not, as far as this Court is concerned, diligence by the plaintiff. And, as previously indicated, the plaintiff herself bears some responsibility for this. All of this information she could have very easily obtained from her employer during the period pre-litigation, from March 11, 1999 through March 3 of 2000.

So the Court finds that the plaintiff was not diligent in seeking the fictitious party's name, in this case the identity of Kling-Lindquist.

I further find that if prejudice is a consideration for the Court in this analysis, notwithstanding the fact that the Supreme Court's opinion in this very case does not so indicate, that in fact Kling- Lindquist did suffer some prejudice, prejudice by the passage of time and specific - and concrete prejudice by virtue of the fact that in the summer of 2001, some nine or ten months after the complaint was filed, Kling-Lindquist, not being aware that it was soon to be sued, in the normal course destroyed its project file for the project in question. And I find that is prejudice.

There is nothing we can add to these findings and conclusions. Even in the context of a motion for summary judgment, they are fully supported by the record and the applicable law. Plaintiff raises no issues on appeal that warrant extended discussion. R. 2:11-3(e)(1)(E). The plain fact is, Kling-Lindquist's identity could easily have been discerned before the complaint was filed, not to mention before the statute of repose had run, and/or within a reasonable period of time thereafter. That an injured party has "an obligation to investigate all potentially responsible parties in a timely manner" goes without saying. Matynska v. Fried, 175 N.J. 51, 53 (2002); Mears v. Sandoz Pharms., 300 N.J. Super. 622, 631-32 (App. Div. 1997). Plaintiff made no effort to do so here.

As a result, Kling-Lindquist was not made aware of its potential exposure until thirty-four months after the accident, almost sixteen months after the original complaint, filed only against a "discovery" defendant, and almost fourteen months after the statute of repose had expired. Along the way, critical Kling-Lindquist employees involved in the design and construction of the alleged defective stairs left its employ and the "preliminary, developmental or design drawings . . . including developmental drawings for the stairs at issue," were destroyed.

Plaintiff argues, though, that no prejudice can arise as Kling-Lindquist was involved in the renovations that followed plaintiff's fall. But at that point there is no suggestion that it was on notice of any liability claim based upon its being the architect on the original project. Indeed, the fact that it was not thereafter timely sued would have lulled it into thinking to the contrary. It is undisputed that destruction of the developmental file occurred after the renovation, and a year after the statute of repose had run.

Plaintiff also asserts that the loss of the design file matters not, as plaintiff's claim relates to an alleged defect of the stairs as built. But, as counsel points out in his brief:

Ultimately "a" set of Kling-Lindquist's plans purportedly showing the design of the steps were obtained. Are they the final set? Why were the steps designed in the manner they allegedly were? Were there changes proposed in earlier sets which the township rejected during the permit approval process? Was the contractor advised or directed to make any changes to the stairs? Because of the lack of documents and witnesses, Kling-Lindquist cannot offer answers to these questions.

We add only that plaintiff's reliance upon Claypotch v. Heller, Inc., 360 N.J. Super. 472 (App. Div. 2003), is misplaced. There plaintiff was injured while operating a punch press at his place of employment. We observed that: "Based on the labeling on the punch press, both plaintiff and his employer believed that the machine had been manufactured by [defendant] Heller." Id. at 478. Thus, the complaint was filed timely, albeit just, against that defendant along with John Doe "manufacturers, designers, repairers and sellers." Ibid. Seven months later, Heller third-partied FICEP. The motion papers did not indicate its role in the matter except as an entity with potential liability. The third-party complaint was served in Italy, and FICEP filed an answer in March 2000. Over a year later, and just before the trial date, plaintiff moved to add FICEP as a direct defendant. The motion was denied for lack of due diligence, i.e., plaintiff had "known the identity of FICEP for over a year." Id. at 479. Because it turned out that FICEP was the manufacturer, not Heller, Heller's motion for summary judgment was granted. In reversing the denial of the motion to name FICEP as a direct defendant, we first concluded that, given the labeling on the machine, plaintiff had a reasonable basis for believing that Heller was the manufacturer at the time it filed its complaint. Id. at 480-81. We then considered whether plaintiff's delay in moving to name FICEP as a direct defendant constituted a lack of due diligence. We thought not, observing:

In arguing that plaintiff's delay in moving to name it as a direct defendant constituted a lack of due diligence, FICEP relies upon cases in which service of an amended complaint identifying the true name of the fictitiously named defendant was a manufacturer's first notice that it was being sued. See, e.g., Johnston [v. Muhlenberg Reg'l Med. Ctr.], 326 N.J. Super. [203,] 206-08 [(App. Div. 1999)]; Mears [v. Sandoz Pharms.], 300 N.J. Super. [622,] 632-33 [(App. Div. 1997)]. In such a case, any delay in identifying and serving an amended complaint upon a fictitiously named defendant directly implicates the policy of repose a statute of limitations is designed to serve. See Johnston, supra, 326 N.J. Super. at 208; Mears, supra, 300 N.J. Super. at 630. However, once FICEP was served with Heller's third-party complaint, it had notice of plaintiff's injury and of its potential liability. To protect its interests, FICEP then retained counsel and actively participated in the litigation, including taking plaintiff's deposition and submitting an expert report. FICEP has not suggested any additional discovery or other pretrial preparation it could have undertaken if it had been named as a direct defendant earlier. FICEP also should have reasonably anticipated it would be named as a direct defendant sooner or later. In short, FICEP has not shown that it suffered any prejudice as a result of plaintiff's delay in moving to name it as a directdefendant. See Lawlor [v. Cloverleaf Mem'l Park, Inc.], 56 N.J. [326,] 343 [(1970)]. Therefore, the trial court erred in denying the motion.

[Id. at 482-83.]

These are not the facts here. First, this is not a situation of a plaintiff timely serving a defendant he or she reasonably thought was the putative party. More importantly, plaintiff easily could have discerned Kling-Lindquist's identity as the potential tortfeasor before filing her complaint. Further, this is not a situation in which the proper tortfeasor is brought into the case by a defendant and, thus early on, noticed of its potential liability.

Here, plaintiff's accident occurred in March 1999. Her complaint against her employer, for discovery purposes only, and against the John Doe defendants was filed in October 2000. In November 2000, the ten-year statute of repose applicable to Kling-Lindquist ran its course. Discovery from the employer languished. It was not until August 2001, or ten months after the filing of the original complaint that plaintiff discovered that Kling-Lindquist was the potential tortfeasor. Even then, Kling-Lindquist was not served with an amended complaint until January 2002, or five months later. It is undisputed that during this time, and in reliance upon the passage of the repose period, Kling-Lindquist destroyed files relating to the site of the accident. Given all of this, we cannot disagree with the trial judge's conclusion that due diligence was not exercised.

Affirmed for the reasons set forth by Judge Frank M. Ciuffani in his July 29, 2005, oral decision.

 

(continued)

(continued)

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A-6646-04T1

May 10, 2006