CARLOS J. CISTERNAS et al. v. CEDAR BROOK II CORPORATE CENTER, LP

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1843-05T51843-05T5

CARLOS J. CISTERNAS and MARGARITA

CISTERNAS,

Plaintiffs-Appellants,

v.

CEDAR BROOK II CORPORATE CENTER, LP,

Defendant,

and

KAUFMAN STAIRS, INC.,

Defendant/Third-Party

Plaintiff,

and

THE FINISHING TOUCH QUALITY CONTROL

CONTRACTORS, INC.,

Defendant/Third-Party

Defendant,

and

HAMILTON CONSTRUCTION,

Defendant/Third-Party

Plaintiff-Respondent,

v.

PENN NATIONAL INSURANCE,

Third-Party Defendant-

Respondent.

_________________________________________

 

Argued October 30, 2006 - Decided November 27, 2006

Before Judges Lintner and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Ocean County,

L-1508-01.

Mitchell D. Perlmutter argued the cause for appellants (Stanley M. Klein, attorney; Mr. Perlmutter, on the brief).

Robert M. Kaplan argued the cause for respondent Penn National Insurance (Margolis Edelstein, attorneys; Lisa Datta, on the brief).

Maselli Warren, attorneys for respondent Hamilton Construction (Michael W. Hoffman, on the letter relying on the brief filed on behalf of respondent Penn National Insurance).

PER CURIAM

Plaintiff, Carlos Cisternas, and his wife Margarita, appeal from an order for summary judgment dismissing his personal injury case against defendant Hamilton Construction based upon the running of the statute of limitations. We affirm.

Cisternas, an employee of Eastern Management Company (Eastern Management), was injured on October 24, 2000, when he fell through an opening on the second floor of a two-story single-family house that was under construction. On May 7, 2001, he filed a complaint naming defendant Cedar Brook II Corporate Center LP (Cedar Brook) as the general contractor. The caption of the complaint also named "JOHN DOES (the latter being fictitious persons/entities, the true names thereof being incapable of ascertainment at the time of filing hereof)." In the body of the complaint, the "CEDAR BROOK II CORPORATE CENTER LP and/or JOHN DOES" were designated as "the general contractors on the job."

On March 12, 2002, plaintiff amended his complaint, with leave of the court, adding subcontractor Kaufman Stairs, Inc. (Kaufman Stairs) as a defendant. Although the caption of plaintiff's amended complaint named the John Does again as "fictitious persons/entities" whose true names were "incapable of ascertainment," the third paragraph of the first count stated that on October 24, 2000, "KAUFMAN STAIRS, INC. and/or JOHN DOES, were subcontractors on the . . . job." On July 25, 2003, plaintiff filed a second amended complaint naming subcontractor The Finishing Touch Quality Control Contractors, Inc. (Finishing Touch) as a defendant. On October 8, 2004, Finishing Touch was permitted to file a third-party complaint against Hamilton Construction. Plaintiff's motion to file a third amended complaint naming Hamilton as a defendant was granted on October 22, 2004.

Plaintiff settled his claims with Cedar Brook, Kaufman Stairs, and Finishing Touch. On May 17, 2005, Hamilton answered, and filed a third-party complaint against Penn National Insurance (Penn National), seeking a declaration that Penn National provide liability coverage. Penn National obtained consent from both Hamilton and plaintiff to file a summary judgment motion on behalf of Hamilton, asserting that plaintiff's complaint against Hamilton was barred by the statute of limitations.

Theodore Hamilton, principal of Hamilton Construction, testified at depositions on October 22, 2003, and August 8, 2005. He stated that he had been contacted by plaintiff's counsel approximately one year to "[m]aybe a year and a half" before his October 2003 deposition, at which time he told plaintiff's counsel that he was the framing subcontractor on the job. At his October 22, 2003, deposition, Hamilton testified that his company did all the framing on the job, including sub-flooring. As part of its duties, his company framed out the opening in the floor through which plaintiff fell. However, they did not install any railing nor did they cover the hole.

Plaintiff's counsel was also provided with a list of the subcontractors on the job prior to the June 13, 2003, deposition of Richard Benedict, a construction supervisor on the site and plaintiff's boss. The house was being built for Benedict. On November 25, 2003, Vincent Gallagher of Safety Research, Inc. rendered an expert report for plaintiff. He had reviewed various depositions, including the testimony of Theodore Hamilton and Richard Benedict. He opined that plaintiff's fall resulted from violations of principles and practices of construction safety management and OSHA regulations by Cedar Brook, Kaufman Stairs, and Finishing Touch.

Cedar Brook obtained an expert report dated March 26, 2004, from Joseph Mills of National Forensic Consultants, Inc. Mills pointed out that plaintiff's employer, Eastern Management, was hired by Cedar Brook, the owner and developer of the property, to manage the construction and oversee site safety. He suggested that plaintiff must have removed the cover that had been placed over the second floor opening. He opined that the failure to have a railing did not present an unusual risk of harm and that plaintiff admitted that he understood the risks of working near an unprotected opening.

On June 29, 2004, John McCarthy of Pro Safety Services, LLC, issued a report to Finishing Touch. McCarthy observed that Hamilton Construction, as the "Creating Employer," had the duty to provide temporary fall protection unless the controlling employer had assigned the task to someone else. McCarthy described Eastern Management as the "Correcting Employer," who "should have assigned a contractor to install temporary safety equipment." He also designated Eastern Management as the "Controlling Employer" responsible for "prevent[ing] or correct[ing] a violation or . . . requir[ing] another employer to do so." He then concluded:

If Eastern Management Properties, their construction superintendent or Cedar Brook II, the owner of the property, had conducted site safety inspections, instructed contractor or sub contractors to install guardrails along the stairs and second floor open balconies, this accident could have been prevented. If they had provided adequate guardrails along the open edges, provided fall protection training for their laborer, [plaintiff] would not have fallen from the second to the first floor and sustained serious injuries.

. . . .

Eastern Management Properties and Cedar Properties II [sic] should have recognized the fall hazard and provided adequate fall protection by either a guardrail or other means, to prevent a fall through the leading edge of the second floor.

Relying primarily upon Guichardo v. Rubinfeld, 177 N.J. 45 (2003), plaintiff asserts on appeal that the judge erred in not applying the discovery rule. He argues that it was not until McCarthy "pointed out the culpability of the third party that the plaintiff had any reason to pursue a claim against Hamilton Construction." He asserts that the complexities of a construction accident case are similar to those found in medical malpractice cases in which the discovery rule has been applied. He contends that, because the experts must rely on the discovery process to sort out the responsibilities of the various subcontractors, the discovery rule should have controlled to toll the statute of limitations. He also maintains that he was not dilatory but rather he reasonably relied upon expert advice that indicated lack of fault on the part of Hamilton Construction, until receipt of McCarthy's report.

The discovery rule has been adopted in an attempt to mitigate the harsh results that are potentially caused by a mechanical application of the statute of limitations. Tevis v. Tevis, 79 N.J. 422, 431 (1979). The rule provides:

[I]n an appropriate case a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim.

[Lopez v. Swyer, 62 N.J. 267, 272 (1973).]

The discovery rule does not require "knowledge of a specific basis for legal liability or a provable cause of action," however, it does require "knowledge not only of the injury but also that another is at fault." Martinez v. Cooper Hosp.-Univ. Med. Ctr., 163 N.J. 45, 52 (2000). As a result, the rule encompasses two types of plaintiffs: "those who do not know that they have been injured and those who know they have suffered an injury but do not know that it is attributable to the fault of another. A cause of action does not accrue until both of those factors exist." Id. at 53 (citation omitted). "'[W]hen a plaintiff knows of an injury and that the injury is due to the fault of another, he or she has a duty to act.'" Guichardo, supra, 177 N.J. at 52 (quoting Caravaggio v. D'Agostini, 166 N.J. 237, 249-50 (2001)). "However, when that plaintiff reasonably remains unaware that an additional third party may also be at fault, 'the accrual clock does not begin ticking against the third party until the plaintiff has evidence that reveals [the third party's] possible complicity.'" Ibid. (quoting Caravaggio, supra, 166 N.J. at 250).

"The standard for application of the discovery rule is objective: whether the plaintiff 'knew or should have known of sufficient facts to start the statute of limitations running.'" Maldonado v. Leeds, 374 N.J. Super. 523, 531 (App. Div. 2005) (quoting Baird v. Am. Med. Optics, 155 N.J. 54, 72 (1998)). In weighing and evaluating the relevant facts and circumstances, the court may consider

"the nature of the alleged injury, the availability of witnesses and written evidence, the length of time that has elapsed since the alleged wrongdoing, whether the delay has been to any extent deliberate or intentional, [and] whether the delay may be said to have peculiarly or unusually prejudiced the defendant."

[Ibid. (quoting Lopez, supra, 62 N.J. at 276).]

The discovery rule has been applied most often in medical malpractice actions. See, e.g., Guichardo, supra, 177 N.J. at 51-56; Mancuso v. Neckles, 163 N.J. 26 (2000); Gallagher v. Burdette-Tomlin Mem'l Hosp., 163 N.J. 38 (2000). However, "[i]ncreasing acceptance of the principle of the discovery rule has extended the doctrine to contexts unrelated to medical malpractice." O'Keeffe v. Snyder, 83 N.J. 478, 492 (1980) (applying discovery rule in replevin action); see also Grunwald v. Bronkesh, 131 N.J. 483, 493-94 (1993) (applying discovery rule in legal malpractice action); Burd v. N.J. Tel. Co., 76 N.J. 284, 291-93 (1978) (applying discovery rule in products liability action); New Mkt. Poultry Farms, Inc. v. Fellows, 51 N.J. 419, 425-26 (1968) (applying discovery rule in surveyor liability claim).

In medical malpractice cases, the statute of limitations has been tolled where a plaintiff does not have a reasonable basis for pursuing a claim against a medical provider in the absence of a supporting expert opinion linking the medical provider's conduct to the plaintiff's injuries. Guichardo, supra, 177 N.J. at 51. In cases

involving "complex medical causation," in which "it is not at all self-evident that the cause of injury was "the fault of . . . a third party, more is required than mere speculation or an uninformed guess without some reasonable medical support that there was a causal connection" between the plaintiff's condition and the third party's conduct.

[Ibid. (quoting Mancuso, supra, 163 N.J. at 34) (citation omitted).]

In Mancuso, the plaintiff underwent two mammograms, one in 1988 and one in 1989, but was not diagnosed with breast cancer until 1992. Mancuso, supra, 163 N.J. at 30-31. After obtaining a medical expert report that the plaintiff's surgeon was negligent, the plaintiff sued her surgeon, asserting that the delay in her diagnosis had reduced her chance of surviving the cancer. Id. at 32. In April 1996, a defense expert opined that a mammogram was misread by a radiologist who had misdiagnosed a cyst in the plaintiff's breast as benign, three years prior to her surgery. Ibid. As a result, the plaintiff amended her complaint one year after receiving the defendant's expert report, which was nine years after the mammogram. Ibid. at 32. The Court concluded that the plaintiff "was reasonably unaware, until the expert's 1996 deposition, that her injury was possibly due to the fault of" the radiologist, and that "[t]he 'nature of the information' that she possessed did not suggest that the spread of her cancer may have been due to the fault of [the radiologist]." Id. at 35.

In Gallagher, supra, 163 N.J. at 40, decided the same day as Mancuso, the plaintiff instituted suit against the surgical team that failed to correct her incontinence. Years later, the plaintiff was alerted by the deposition of a defense expert that her incontinency may have been the responsibility of the urologist who provided negligent after-care in the "treatment of a post-operative infection that developed into an abdominal abscess due to the lack of timely antibiotic therapy." Ibid.

Similar to the facts in Mancuso, the Court in Gallagher determined that "[t]his 'type of case' involving medical causation demands special attention due to the intrinsic hardship facing a potential medical malpractice claimant in determining fault." Id. at 43. Applying the discovery rule, and thus tolling the statute of limitations, the Court concluded that the plaintiff "had no reasonable basis to suspect that her crippling condition was caused by anything other than the original surgery." Ibid.

In Guichardo, supra, 177 N.J. at 47-49, the plaintiff, who was rendered a paraplegic, obtained an expert evaluation that concluded that the defendant doctor, who treated plaintiff's pain with thoracic epidural catheterizations, was negligent in the insertion of a catheter during a September 1992 hospitalization. Approximately one year after filing her August 1994 complaint and after consulting two additional experts, plaintiff learned, for the first time, from a fourth expert that a second doctor, who had also seen plaintiff in September 1992, had negligently delayed one month before diagnosing an epidural abscess, which was a contributing factor to her paraplegia. The Court stated that, just "[a]s in Mancuso and Gallagher, [the] plaintiff reasonably relied on earlier expert advice indicating an absence of fault on the part of a particular defendant." Id. at 55.

In Mancuso, the Court distinguished between cases involving "complex medical causation" and those "in which injury and cause are self-evident, as when a record press machine malfunctions and crushes a worker's hand." Mancuso, supra, 163 N.J. at 34. "In cases of complex medical causation, it is not at all self-evident that the cause of injury was '(a) the fault of (b), a third party. Not only is the nature of the injury generally unclear, its very existence is frequently masked.'" Ibid. (quoting Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 434 (1987)). Even though a plaintiff does not necessarily have to "have an expert report in hand before the statute of limitations will commence to run . . . the nature of the information available to the injured party" remains a key issue. Id. at 35 (citation omitted).

In Mancuso, Gallagher, and Guichardo, the plaintiffs had no reason to suspect that procedures or treatments performed at different times by other doctors not named as the original defendants were causally connected to their resulting conditions. By contrast, here, plaintiff's fall and his resulting injury were self-evident. Likewise, the cause of plaintiff's injuries was self-evident. The opening in the floor and the lack of a temporary safety railing and cover were obvious. Plaintiff's status as an employee of the contractor hired to do general construction and maintain a safe work place certainly placed him in the position where he knew or should have known who the various subcontractors were and what they did. Moreover, plaintiff does not dispute that such information was available or ascertainable. Hamilton's deposition testimony reflects that he spoke with plaintiff's counsel and described his company's involvement in the project within the limitation period between a year and one and one-half years before Hamilton's October 22, 2003, deposition. Moreover, plaintiff's supervisor, Benedict, for whom the house was being built, knew the identity of the various subcontractors on the job.

"The discovery rule has been, and is, pertinent only in those circumstances in which a plaintiff was not, and reasonably could not be, aware of the underlying factual basis for a cause of action." Tevis, supra, 79 N.J. at 432. Each of the experts had before them the same facts and materials. Only the third expert concluded in his report that Hamilton Construction was a potentially liable party. On July 14, 2004, after receipt of McCarthy's report, Gallagher testified at his deposition that the framer of the building may have had a duty to install a temporary guardrail system around the opening in the floor. Gallagher was not given any new facts to consider, but simply had neglected to draw this conclusion in his earlier report. He had reviewed Hamilton's deposition prior to issuing his report and was aware of Hamilton Construction's connection with the alleged dangerous condition at the site.

Contrary to plaintiff's argument, the nature of the information giving rise to a cause of action against Hamilton Construction was not so complex or obscure that plaintiff would not reasonably be expected to make a connection between Hamilton Construction and his injury but for the third expert's report. The judge properly declined to apply the discovery rule, finding "that the knowledge of [Hamilton Construction] was far long in existence and could or should have been named as a party to the action."

Plaintiff next argues that his cause of action was preserved by his use of fictitious names in his initial complaint and first amended complaint under R. 4:26-4. Hamilton and Penn National counter, asserting that (1) plaintiff failed to exercise due diligence to discover and identify Hamilton Construction prior to expiration of the statute of limitations, and (2) his pleading did not adequately describe the unidentified defendant so as to include Hamilton Construction as one of the defendants.

The fictitious party rule "renders[s] 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." Greczyn v. Colgate-Palmolive, 183 N.J. 5, 11 (2005). The rule does not apply "'where a plaintiff is unaware that an injury was caused by an identifiable defendant.'" Ibid. (quoting Pressler, Current N.J. Court Rules, comment 1 on R. 4:26-4 (2005)).

Even if plaintiff was not aware of Hamilton Construction prior to filing his May 2001 complaint, he had sufficient time to learn of its identity prior to the running of the limitation period on October 24, 2002. Hamilton Construction and Benedict had collaborated on projects in the past. Plaintiff could easily have learned about Hamilton Construction by making a simple inquiry of his boss. The fictitious party rule does not "'protect a plaintiff who had ample time to discover the unknown defendant's identity before the running of the statute of limitations." Greczyn, supra, 183 N.J. at 11 (quoting Pressler, Current N.J. Court Rules, comment 1 on R. 4:26-4 (2005)); see also Mears v. Sandoz Pharms., Inc., 300 N.J. Super. 622, 631-33 (App. Div. 1997); Cardona v. Data Sys. Computer Ctr., 261 N.J. Super. 232, 234-35 (App. Div. 1992).

Lastly, plaintiff asserts that his amended complaint naming Hamilton Construction relates back to the filing date of his original complaint under R. 4:9-3. Plaintiff's contention, raised for the first time on appeal, lacks merit. R. 4:9-3 provides:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading; but the court, in addition to its power to allow amendments may, upon terms, permit the statement of a new or different claim or defense in the pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment, that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party to be brought in by amendment. (emphasis added).

The first part of the rule permits new claims brought against a party already a party to the action. The second part deals with new parties, namely defendants who have been misidentified as the result of a misnomer, but nevertheless named in the complaint, or defendants improperly identified who have knowledge of the suit and have entered a defense within the statute of limitations. Pressler, Current N.J. Court Rules, comment 1 on R. 4:9-3 (2007). Under the rule, a plaintiff may assert a claim after the limitation period has run against a party impleaded by a third-party complaint filed prior to the running of the statute of limitations on the plaintiff's claim. See Lawlor v. Cloverleaf Mem'l Park, Inc., 56 N.J. 326, 339-45 (1970); Greco v. Valley Fair Enters., 105 N.J. Super. 582, 584 (App. Div. 1969). However, a plaintiff is not entitled to amend a complaint to include a party who is impleaded by a third-party complaint filed after the running of the limitation period on the plaintiff's claim. See McGlone v. Corbi, 59 N.J. 86, 94-97 (1971). That is precisely what happened here. Finishing Touch was permitted to file its third-party complaint against Hamilton Construction, by order of October 8, 2004, almost two years after the statute of limitations ran on plaintiff's claim. Furthermore, Hamilton Construction had no knowledge that it could be named as a defendant in the case prior to the time the limitation period ran. When plaintiff's counsel contacted Theodore Hamilton prior to his October 2003 deposition, he told Hamilton that he and his company were "absolutely not" in trouble and he did not need a lawyer at his deposition.

Affirmed.

 

Third-party defendant to third-party plaintiff Kaufman Stairs, Inc.

Third-party defendant to third-party plaintiff Hamilton Construction.

As Carlos suffered the personal injury for which he seeks damages, we refer to him as plaintiff.

Finishing Touch was brought into the action initially via a third-party complaint filed by Kaufman Stairs, with leave of court, on or about December 27, 2002.

Kaufman Stairs was the subcontractor responsible for installing the stairs and railings between the first and second floor, while Finishing Touch installed the finished handrail.

The record further reflects that Hamilton's deposition had been scheduled earlier but was adjourned three times.

(continued)

(continued)

18

A-1843-05T5

November 27, 2006