Krzykalski v. Tindall

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
interest of brevity, portions of any opinion may not have been summarized.)

                            Mark R. Krzykalski v. David T. Tindall (A-55-16) (078744)

Argued January 30, 2018 -- Decided April 17, 2018

SOLOMON, J., writing for the Court.

         In this automobile accident case brought under the Comparative Negligence Act, 
N.J.S.A. 2A:15-5.1 to -5.8
(CNA), the Court is called upon to determine whether a jury should be asked to apportion fault between a named
party defendant and a known but unidentified defendant (John Doe).

         This case arises out of a car accident in Florence Township. The car driven by plaintiff Mark Krzykalski
was in the left lane traveling north, and the car driven by defendant David Tindall was directly behind plaintiff’s car.
As the left-lane traffic proceeded through an intersection, a vehicle in the right lane driven by John Doe
unexpectedly made a left turn, cutting off the cars in the left lane. Plaintiff was able to stop his car without striking
the vehicle in front of him. Defendant, however, was unable to stop in time and rear-ended plaintiff’s vehicle.

         Plaintiff suffered serious injuries in the accident and filed an uninsured motorist (UM) claim against his
automobile insurance carrier. Plaintiff sued defendant and John Doe for negligence. In defendant’s answer, he
asserted third-party negligence as a defense, included cross-claims for indemnity and contribution from any co-
defendants, and demanded fault allocation against any defendants that might settle before trial.

         The UM carrier chose not to intervene in the lawsuit. At the conclusion of the trial, over plaintiff’s
objection, the trial court included John Doe on the verdict sheet and instructed the jury to allocate fault between
defendant and John Doe in the event that both parties were found negligent. The jury found defendant three percent
negligent and John Doe ninety-seven percent negligent. Ultimately, the jury awarded plaintiff $107,890 in damages.

          On appeal, the Appellate Division affirmed, concluding that an alleged tortfeasor does not need to be an
identified party for his or her negligence and degree of responsibility to be considered by a jury. The Court granted
plaintiff’s petition for certification. 
229 N.J. 622 (2017).

HELD: The jury properly apportioned fault between defendant and the John Doe defendant because plaintiff and
defendant acknowledged the role of John Doe in the accident, plaintiff’s UM carrier was aware of the litigation, and
plaintiff had fair and timely notice that defendant would assert that John Doe was the cause of the accident.

1. The CNA and the Joint Tortfeasors Contribution Law (JTCL), 
N.J.S.A. 2A:53A-1 to -5, comprise the statutory
framework for the allocation of fault when multiple parties are alleged to have contributed to the plaintiff’s harm.
Under New Jersey law, “joint tortfeasors” are “two or more persons jointly or severally liable in tort for the same injury
to person or property, whether or not judgment has been recovered against all or some of them.” 
N.J.S.A. 2A:53A-1.
The allocation of damages among joint tortfeasors is prescribed by the CNA. The CNA provides that, when multiple
defendants have been found liable, the trier of fact shall determine “[t]he extent, in the form of a percentage, of each
party’s negligence or fault.” 
N.J.S.A. 2A:15-5.2(a)(2). (pp. 8-10)

2. The CNA requires the jury to make a good-faith allocation of the percentages of negligence among joint tortfeasors
based on the evidence—not based on the collectability or non-collectability of the tortfeasors’ respective shares of the
damages. That principle applies not only to defendants without the assets necessary to satisfy any judgment against
them, but also to defendants who are at fault but would not be required to satisfy judgments for other reasons. For
example, fault can be allocated to those defendants who have reached independent settlements with a plaintiff. But
allocation to settling defendants is contingent on the plaintiff’s receipt of “fair and timely notice” that the remaining
defendants will argue that liability should be attributed to those defendants who have settled. Young v. Latta, 
123 N.J. 584, 596-97 (1991). (pp. 10-13)

                                                           1
3. In New Jersey, a plaintiff may sue a person or entity as “John Doe” if the plaintiff knows a cause of action exists
against the defendant but does not know the defendant’s identity. The rules direct the plaintiff to “amend the complaint
to state defendant’s true name” at a time “prior to judgment.” R. 4:26-4. Amendment under Rule 4:26-4 is a
prerequisite to recovery: “[n]o final judgment shall be entered against a person designated by a fictitious name.”
Sometimes, it may be impossible to learn the identity of a fault-bearing defendant. This is a frequent problem, for
example, in hit-and-run accidents. To protect those injured in motor vehicle accidents caused by known but
unidentified drivers, New Jersey has required that automobile insurance policies include a UM provision since 1968.

N.J.S.A. 17:28-1.1; Riccio v. Prudential Prop. & Cas. Ins. Co., 
108 N.J. 493, 499 (1987). UM provisions insure drivers
against “damages from the operator of an uninsured motor vehicle, or hit and run motor vehicle.” Riccio, 
108 N.J. at 499. Under that scheme, accident victims can recover through their own UM carrier—up to the policy limits—for the
damages caused by a “phantom vehicle,” or a known, fault-bearing driver who cannot be identified. (pp. 13-15)

4. In Riccio, the Court affirmed a judgment in which fifty percent of the fault for the accident had been allocated to a
known but unidentified driver. Id. at 496-97. The result in that case suggests that known but unidentified defendants
who are not immune from liability may be allocated fault alongside the known defendants in the case. The Appellate
Division held as much in Cockerline v. Menendez, 
411 N.J. Super. 596 (App. Div. 2010). In Cockerline, the plaintiff
brought a wrongful death suit against the drivers involved in a multi-vehicle accident that killed her husband. Id. at
605. A number of those drivers were identified, but other drivers involved in the accident, who left the scene and were
never identified, appeared in the complaint as John Doe defendants. Id. at 610. The panel noted the “different goals
and purposes” served by the law that governs UM coverage and the JTCL and CNA: the former aims “'to make the
victim whole, but not provide a windfall or to allow a double recovery’”; the latter laws are designed “'to relieve
tortfeasors of an injustice among themselves.’” Id. at 619 (quoting Riccio, 
108 N.J. at 504). In accordance with those
distinct policy aims, the Appellate Division panel allowed the allocation of fault to the John Doe drivers. Ibid. From
Riccio and Cockerline derives the principle that parties known to be at least in part liable should be allocated their share
of the fault, even when unidentified. In such cases, known but unidentified parties may be allocated fault even though
recovery against those parties will be possible only through the plaintiff’s UM coverage. (pp. 15-17)

5. An exception to that general rule can be found in Bencivenga v. J.J.A.M.M., Inc., 
258 N.J. Super. 399 (App. Div.
1992). In that case, a nightclub patron sued the club after he was punched in the face by a fellow patron, whose identity
he did not know. Id. at 402. The complaint named the assailant as a John Doe defendant. Ibid. The trial court,
however, refused to allow the jury to consider the John Doe defendant’s negligence. Ibid. The Appellate Division
relied on a policy justification to affirm the trial court—that the nightclub was more likely than the plaintiff to know the
assailant’s identity. Id. at 410. (pp. 17-18)

6. This case strongly resembles Cockerline. John Doe here is a known but unidentified party. Indeed, plaintiff and
defendant acknowledge the role that John Doe played in causing the accident. By requiring that automobile insurance
policies include a UM provision, the Legislature has acknowledged and prepared for precisely such circumstances.
“Phantom vehicles” driven by known but unidentified motorists that play a part in an accident presumptively may be
allocated fault in accordance with the JTCL, the CNA, and the laws requiring UM coverage. The presumptive ability to
allocate fault to such defendants may be defeated if the identified defendants do not provide fair and timely notice of
their intent to argue that fault should be allocated to the John Doe defendant. Here, it is undisputed that plaintiff
received fair and timely notice defendant would assert that John Doe was the cause of the accident. Plaintiff’s UM
carrier, moreover, received notice of the litigation and had the option to intervene. Additionally, the other grounds
upon which allocation has been denied in other cases do not apply here. Under the circumstances of this case and in
light of the undisputed evidence that John Doe’s negligence contributed to the accident, the trial court appropriately
submitted the question of John Doe’s negligence to the jury for fault allocation. (pp. 18-21)

7. John Doe’s party status under the CNA does not mean that the UM carrier who will ultimately cover any damages
attributed to John Doe must intervene in the case and formally become a party to the negligence suit. (pp. 21-22)

         The judgment of the Appellate Division is AFFIRMED.

         CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, and TIMPONE
join in JUSTICE SOLOMON’s opinion. JUSTICE FERNANDEZ-VINA did not participate.



                                                           2
                                     SUPREME COURT OF NEW JERSEY
                                       A-
55 September Term 2016
                                                078744


MARK R. KRZYKALSKI and
MICHELE KRZYKALSKI,
    Plaintiffs-Appellants,
         v.
DAVID T. TINDALL,
    Defendant-Respondent.


         Argued January 30, 2018 – Decided April 17, 2018
         On certification to the Superior Court,
         Appellate Division, whose opinion is
         reported at 
448 N.J. Super. 1 (App. Div.
         2016).
         Kenneth G. Andres, Jr., argued the cause for
         appellant Mark R. Krzykalski (Andres &
         Berger, attorneys; Kenneth G. Andres, Jr.,
         of counsel and on the brief, and Abraham
         Tran, on the brief).
         Daniel J. Pomeroy argued the cause for
         respondent (Pomeroy, Heller & Ley,
         attorneys; Daniel J. Pomeroy and Karen E.
         Heller, on the brief).
         Michael J. Epstein argued the cause for
         amicus curiae New Jersey Association for
         Justice (The Epstein Law Firm, attorneys;
         Michael J. Epstein, of counsel and on the
         brief, and Michael A. Rabasca, on the
         brief).


    JUSTICE SOLOMON delivered the opinion of the Court.




                               1
    In this automobile accident case brought under the

Comparative Negligence Act, 
N.J.S.A. 2A:15-5.1 to -5.8 (CNA), we

are called upon to determine whether a jury should be asked to

apportion fault between a named party defendant and a known but

unidentified defendant (John Doe).   We conclude that the jury

properly apportioned fault between the named party defendant

David Tindall (defendant) and the John Doe defendant because

plaintiff Mark Krzykalski (plaintiff) and defendant acknowledged

the role of John Doe in the accident, plaintiff’s Uninsured

Motorist (UM) carrier was aware of the litigation, and plaintiff

had “fair and timely” notice that defendant would assert that

John Doe was the cause of the accident.

                               I.

    According to the appellate record, this case arises out of

a car accident in Florence Township.   The car driven by

plaintiff was in the left lane traveling north, and the car

driven by defendant was directly behind plaintiff’s car.   As the

left-lane traffic proceeded through an intersection, a vehicle

in the right lane driven by John Doe unexpectedly made a left

turn, cutting off the cars in the left lane.   Plaintiff was able

to stop his car without striking the vehicle in front of him.

Defendant, however, was unable to stop in time and rear-ended

plaintiff’s vehicle.



                                2
     Plaintiff suffered serious injuries in the accident and

filed a UM claim against his automobile insurance carrier.

Plaintiff rejected his insurance company’s offer to settle the

UM claim for the policy limits and sued defendant and John Doe1

for negligence.   In defendant’s answer, he asserted third-party

negligence as a defense, included cross-claims for indemnity and

contribution from any co-defendants, and demanded fault

allocation against any defendants that might settle before

trial.

     Prior to trial, plaintiff moved for a directed verdict

against defendant.   The trial court denied plaintiff’s motion,

and the case proceeded to a jury trial.   During trial, plaintiff

again refused his UM carrier’s settlement offer for the full

policy limits on the UM claim, and the UM carrier chose not to

intervene in the lawsuit.   At the conclusion of the trial, over

plaintiff’s objection, the trial court included John Doe on the

verdict sheet and instructed the jury to allocate fault between

defendant and John Doe in the event that both parties were found

negligent.




1  The complaint names three John Doe defendants. John Doe I is
described as the driver of the car that made the improper left
turn; John Doe II is described as the owner of that car; and
John Doe III is described as the individual or entity on whose
behalf that car was being driven. The action was litigated only
against defendant and John Doe I.
                                 3
    The jury found defendant three percent negligent and John

Doe ninety-seven percent negligent.     Ultimately, the jury

awarded plaintiff $107,890 in damages.     The trial court denied

plaintiff’s post-verdict motion for a new trial or additur.

    On appeal, the Appellate Division affirmed, concluding that

an alleged tortfeasor does not need to be an identified party

for his or her negligence and degree of responsibility to be

considered by a jury.     In the panel’s view, precluding fault

allocation to known but unidentified defendants would give

litigants in plaintiff’s position an improper windfall.        The

appellate panel reasoned that similarly situated plaintiffs

could recover all of their damages from the identified defendant

and then also receive compensation from their UM carrier for the

known but unidentified defendant’s share of the fault.     A member

of the panel, writing separately, concurred in the opinion,

stating that allowing the jury to assess the fault of John Doe

defendants is proper for a number of reasons:     1) it prevents

plaintiffs from strategically delaying their UM claim until

after the lawsuit; 2) it allocates fault based on the actual

negligence of the various drivers; and 3) it avoids double

recovery by plaintiffs.

    We granted plaintiff’s petition for certification.      
229 N.J. 622 (2017).   We also granted amicus curiae status to the

New Jersey Association for Justice (NJAJ).

                                  4
                               II.

                               A.

     Plaintiff argues that a jury should not be permitted to

apportion fault between a named party defendant and an

unidentified party who is not represented by counsel.     In

plaintiff’s view, John Doe is not a “true party” to the case

under the CNA, and placing John Doe on the jury verdict sheet

and allowing fault allocation to John Doe results in a

miscarriage of justice.

     Plaintiff asserts that the cases relied upon by the

Appellate Division are inapposite because they involved named

defendants who were dismissed before jury deliberations.       Here,

plaintiff argues that John Doe’s identity was never ascertained

and so he never actually became a party to the lawsuit.

     Plaintiff raises three additional arguments.   First, he

argues that allowing fault allocation to John Doe improperly

allows identified defendants to present an “empty chair defense”2

by blaming unidentified John Doe defendants.   Therefore,

according to plaintiff, if this Court allows allocation to John

Doe defendants, it should require UM carriers to present a

defense on behalf of the John Doe defendant.   Second, plaintiff


2  “The practical effect of a defendant proving that the 'empty
chair’ was responsible for the accident is that the plaintiff
will receive no recovery.” Brodsky v. Grinnell Haulers, Inc.,

181 N.J. 102, 114 (2004).
                                5
asserts that if this Court allows allocation, it should require

identified defendants to advise the court and opposing counsel

that they will assert John Doe’s negligence.     Finally, plaintiff

claims that allowing allocation to John Doe in this case creates

a slippery slope by permitting defendants to assert the

negligence of entities outside the litigation.

                               B.

    Defendant argues that it was proper to allocate fault to

John Doe because the legislative purpose of the CNA is to

promote the fair sharing of the burden of a judgment.     In

defendant’s view, it is the joint tortfeasor status, not the

party status, that determines whether allocation is appropriate,

and each tortfeasor should pay damages in accordance with the

percentage of fault attributed to it by the fact-finder.       Thus,

according to defendant, because the complaint alleged that he

and John Doe were joint tortfeasors, it was proper for the jury

to allocate fault both to him and to John Doe.     Defendant

further stresses that plaintiff should not have been surprised

that John Doe was listed on the verdict sheet, given that

plaintiff elected to name John Doe as a defendant in the

complaint.

    Defendant adds that there is no “rule prohibiting the

allocation of fault to fictitious parties” and that Bencivenga

v. J.J.A.M.M., Inc., 
258 N.J. Super. 399 (App. Div. 1992), from

                                6
which that proposition stems, is inapposite.   Finally, defendant

argues that joinder should not be mandatory because UM carriers

already receive notice of litigation and have the option to

intervene.   Therefore, in defendant’s view, there is no reason

to force carriers to participate in litigation where they would

not do so of their own volition.

                                 C.

     The NJAJ argues that the Appellate Division conflated the

concept of fictitious parties with the concept of phantom

vehicles3 for which there is mandatory insurance coverage in all

motor vehicle policies issued in New Jersey.   It asks that this

Court “clarify and reaffirm” the “long-standing rule barring the

jury’s assessment of a fictitious party’s negligence and the

placement of a fictitious party on the verdict sheet.”   The NJAJ

also argues that this Court should adopt a bright-line rule

“requiring the joinder of a plaintiff’s UM carrier in motor

vehicle cases where there is a known and identified defendant

driver and a phantom vehicle.”




3  “Phantom vehicle” is a term used for vehicles that were known
to be involved in an automobile accident but never sufficiently
identified as to permit the owner or operator to be hauled into
court. See Wadeer v. N.J. Mfrs. Ins. Co., 
220 N.J. 591, 598-99,
609 (2015) (describing the unidentified vehicle that caused an
accident as a “phantom vehicle”); Estate of Hanges v. Metro.
Prop. & Cas. Ins. Co., 
202 N.J. 369, 374, 389 (2010) (same).
                                   7
    The NJAJ notes that John Doe was never identified during

discovery, substituted in as a party to the litigation, or

served with process, and stresses that plaintiff’s UM insurance

carrier never intervened in the case or presented a defense on

behalf of John Doe, even though the UM claim was unresolved and

the carrier had notice of the litigation.   The NJAJ argues that

the Appellate Division’s decision therefore violates the rule

set forth in Bencivenga -- that John Doe defendants are not

parties for the purpose of fault allocation under the CNA.    In

the NJAJ’s view, the panel improperly established a “blanket”

“empty chair” defense available whenever plaintiff names

fictitious defendants in a complaint.

                               III.

                                A.

    “The [CNA] and the Joint Tortfeasors Contribution Law

[(JTCL), 
N.J.S.A. 2A:53A-1 to -5,] comprise the statutory

framework for the allocation of fault when multiple parties are

alleged to have contributed to the plaintiff’s harm.”     Town of

Kearny v. Brandt, 
214 N.J. 76, 96 (2013).   Under New Jersey law,

“joint tortfeasors” are “two or more persons jointly or

severally liable in tort for the same injury to person or

property, whether or not judgment has been recovered against all

or some of them.”   
N.J.S.A. 2A:53A-1.   “The [JTCL] was enacted

to promote the fair sharing of the burden of judgment by joint

                                 8
tortfeasors and to prevent a plaintiff from arbitrarily

selecting his or her victim.”     Holloway v. State, 
125 N.J. 386,

400-01 (1991).

     The allocation of damages among joint tortfeasors is

prescribed by the CNA.     The CNA provides that, when multiple

defendants have been found liable, the trier of fact shall

determine “[t]he extent, in the form of a percentage, of each

party’s negligence or fault.4    The percentage of negligence or

fault of each party shall be based on 100% and the total of all

percentages of negligence or fault of all of the parties to a

suit shall be 100%.”     
N.J.S.A. 2A:15-5.2(a)(2).   A plaintiff

ordinarily can recover only the percentage of damages attributed

to a particular defendant.     
N.J.S.A. 2A:15-5.3(c).   However, if

a defendant is found to be sixty percent or more at fault, the

plaintiff can recover the full amount of damages from that one

defendant, 
N.J.S.A. 2A:15-5.3(a), and that defendant may in turn

“recover contribution from the other joint tortfeasor or joint




4  The CNA also provides that a plaintiff cannot recover damages
if his or her negligence was “greater than the negligence of the
person against whom recovery is sought or . . . greater than the
combined negligence of the persons against whom recovery is
sought.” 
N.J.S.A. 2A:15-5.1. “In other words, a plaintiff who
is found to be more than fifty percent at fault is entitled to
no recovery,” whereas “[a] plaintiff who is found to be fifty
percent or less at fault is entitled to a recovery, but any
award of damages is diminished by the percentage of negligence
attributed to her.” Brodsky, 
181 N.J. at 109.
                                   9
tortfeasors for the excess so paid over his pro rata share.”


N.J.S.A. 2A:53A-3.

    “The [CNA] was designed to further the principle that '[i]t

is only fair that each person only pay for injuries he or she

proximately caused.’”   Jones v. Morey’s Pier, Inc., 
230 N.J.
 142, 159 (2017) (second alteration in original) (quoting

Fernandes v. DAR Dev. Corp., 
222 N.J. 390, 407 (2015)).    “The

law favors apportionment even where the apportionment proofs are

imprecise, allowing only for rough apportionment by the trier of

fact.”   Boryszewski v. Burke, 
380 N.J. Super. 361, 384 (App.

Div. 2005).

    Moreover, the CNA requires the “jury to make a good-faith

allocation of the percentages of negligence among joint

tortfeasors based on the evidence -- not based on the

collectability or non-collectability” of the tortfeasors’

respective shares of the damages.    Brodsky v. Grinnell Haulers,

Inc., 
181 N.J. 102, 121 (2004); see also Brandt, 
214 N.J. at 103

(“[A]pportionment of fault under the [CNA] and the [JTCL] does

not turn on whether the plaintiff is in a position to recover

damages from the defendant at issue.”).

    That principle applies not only to defendants without the

assets necessary to satisfy any judgment against them, but also

to defendants who are at fault but would not be required to

satisfy judgments for other reasons.    For example, fault can be

                                10
allocated to those defendants who have reached independent

settlements with a plaintiff and thus will not have to pay

further even if a greater payment would be required based on

eventual allocation of fault.   See, e.g., Cartel Capital Corp.

v. Fireco of N.J., 
81 N.J. 548, 569 (1980).   But allocation to

settling defendants is contingent on the plaintiff’s receipt of

“fair and timely notice” that the remaining defendants will

argue that liability should be attributed to those defendants

who have settled.   Young v. Latta, 
123 N.J. 584, 596-97 (1991);

see also Higgins v. Owens-Corning Fiberglas Corp., 
282 N.J.

Super. 600, 609, 615 (App. Div. 1995) (remanding for new trial

because trial judge granted defendant’s motion and included on

jury verdict sheet additional asbestos manufacturer never named

as defendant that settled with plaintiff).

    In Morey’s Pier, for example, we allowed the allocation of

fault to a public entity defendant who had been dismissed

because the plaintiff had failed to serve it with a timely

notice of claim as required by the Tort Claims Act after noting

that the “parties ha[d] long been on notice of the . . .

defendants’ intention to seek the apportionment of a percentage

of fault.”   
230 N.J. at 165; see also Brodsky, 
181 N.J. at 108

(allowing allocation of fault to defendant dismissed from

litigation pursuant to discharge in bankruptcy); Burt v. W.

Jersey Health Sys., 
339 N.J. Super. 296, 305 (App. Div. 2001)

                                11
(holding that doctor dismissed from malpractice litigation due

to plaintiff’s failure to properly file affidavit of merit was

still fault-allocable party under CNA).

    By contrast, when a named defendant is found to be immune

from liability -- as opposed to at fault but invulnerable to

recovery because a defendant is either unable to satisfy or

excused from satisfying an adverse judgment -- then fault may

not be allocated to that defendant.   The Appellate Division

explained that distinction in Ramos v. Browning Ferris

Industries of South Jersey, Inc., 
194 N.J. Super. 96, 101, 105

(App. Div. 1984), rev’d on other grounds, 
103 N.J. 177 (1986).

In Ramos, a worker was injured on the job while wheeling a 400-

pound drum of solid waste.   
194 N.J. Super. at 100.   The jury

attributed twenty-five percent of the negligence to the worker

and seventy-five percent to defendant Browning Ferris, “a solid

waste hauler that leased the container to plaintiff’s employer.”

Ibid.   The Appellate Division considered Browning Ferris’s

argument that the employer’s negligence should have been

considered in assessing the cause of the worker’s injuries, even

though the employer was immune from suit under a provision of

the New Jersey Workers’ Compensation Act, 
N.J.S.A. 34:15-8.       Id.

at 102-03.

    The appellate panel properly held that “our Legislature

expressed its intent to limit the task of the trier of fact to

                                12
determining the percentages of negligence of only those persons,

necessarily parties, whose percentages must be known in order to

mold the judgment.”   Id. at 107.       Thus, because the employer’s

immunity meant it could not be a joint tortfeasor as a matter of

law or a party to the litigation, it was properly exempt from

the allocation of fault.   Ibid.

    In sum, the CNA requires the allocation of fault to

defendants who may be responsible for the injury without regard

to whether those defendants are, for other reasons, invulnerable

to recovery by the plaintiff.   This case poses the question of

how those principles apply when a defendant is a known but

unidentified “John Doe” defendant.       To answer that question, we

review the law of fictitious parties.

                                   B.

    In New Jersey, a plaintiff may sue a person or entity as

“John Doe” if the plaintiff knows a cause of action exists

against the defendant but does not know the defendant’s

identity.   See Greczyn v. Colgate-Palmolive, 
183 N.J. 5, 11

(2005).   Our court rules provide that “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.”   R. 4:26-4.   The rules also direct the



                                   13
plaintiff to “amend the complaint to state defendant’s true

name” at a time “prior to judgment.”       Ibid.

     Amendment under Rule 4:26-4 is a prerequisite to recovery:

“[n]o final judgment shall be entered against a person

designated by a fictitious name.”       Indeed, the fictitious name

rule acts to “suspend the running of the statute of limitations

until the actual identity of a defendant is discovered.”

Lawrence v. Bauer Publ’g & Printing Ltd., 
78 N.J. 371, 375-76

(1979).

     Sometimes, it may be impossible to learn the identity of a

fault-bearing defendant.    This is a frequent problem, for

example, in hit-and-run accidents.      To protect those injured in

motor vehicle accidents caused by known but unidentified

drivers, New Jersey has required that automobile insurance

policies include a UM provision since 1968.        
N.J.S.A. 17:28-1.1;

Riccio v. Prudential Prop. & Cas. Ins. Co., 
108 N.J. 493, 499

(1987).     UM provisions insure drivers against “damages from the

operator of an uninsured motor vehicle, or hit and run motor

vehicle.”    Riccio, 
108 N.J. at 499.     “[T]o collect under UM

coverage, the claimant-insured must be able to prove an

automobile liability case against the uninsured.”       Ibid.   Under

that scheme, accident victims can recover through their own UM

carrier -- up to the policy limits -- for the damages caused by

a “phantom vehicle,” or a known, fault-bearing driver who cannot

                                  14
be identified.   In other words, the UM coverage scheme

anticipates and provides for judgment to be entered in favor of

plaintiffs when the tortfeasor is a known but unidentified

motorist.

     We next consider cases that have harmonized the foregoing

principles applicable to fictitious parties, particularly in the

UM context, with the allocation of fault among tortfeasors

pursuant to the JTCL and the CNA.

                                  C.

     In Riccio, this Court considered the damages recoverable by

a plaintiff whose daughter was killed when the car in which she

was a passenger was forced off the road by an unidentified

vehicle.    Id. at 495-97.   We affirmed a judgment in which fifty

percent of the fault for the accident had been allocated to the

known but unidentified driver.    See id. at 496-97 (after

successful Demand for Arbitration,5 “the arbitrator determined

that the drivers -- [the driver of the vehicle in which the

plaintiff’s daughter was a passenger] and the 'phantom’

uninsured -- shared responsibility for the accident on an equal

basis”).    Although allocation of fault was not the central

question in Riccio, the result in that case suggests that known




5  A Demand for Arbitration can be filed, in lieu of a lawsuit,
under the UM provisions of an insurance contract. See Riccio,

108 N.J. at 496.
                                  15
but unidentified defendants who are not immune from liability

may be allocated fault alongside the known defendants in the

case.

    The Appellate Division held as much in Cockerline v.

Menendez, 
411 N.J. Super. 596 (App. Div. 2010).      In Cockerline,

the plaintiff brought a wrongful death suit against the drivers

involved in a multi-vehicle accident that killed her husband.

Id. at 605.     A number of those drivers were identified, but

other drivers involved in the accident, who left the scene and

were never identified, appeared in the complaint as John Doe

defendants.   Id. at 610.     The plaintiff also initiated a UM

claim with her insurance carrier for the damages caused by the

John Doe drivers.     Ibid.   The UM carrier intervened in the

lawsuit and then settled with the plaintiff.      Ibid.

    The panel noted the “different goals and purposes” served

by the law that governs UM coverage and the JTCL and CNA:         the

former aims “'to make the victim whole, but not provide a

windfall or to allow a double recovery’”; the latter laws are

designed “'to relieve tortfeasors of an injustice among

themselves.’”    Id. at 619 (quoting Riccio, 
108 N.J. at 504).

    In accordance with those distinct policy aims, the

Appellate Division panel allowed the allocation of fault to the

John Doe drivers.     Ibid.   The panel concluded that “to preclude

defendants from seeking an apportionment of liability against

                                   16
the phantom vehicles does not advance the purposes of the UM law

and frustrates the purposes of the joint tortfeasor and

comparative fault law.”   Ibid.

     From Riccio and Cockerline we derive the principle that

parties known to be at least in part liable should be allocated

their share of the fault, even when unidentified.      In such

cases, known but unidentified parties may be allocated fault

even though recovery against those parties will be possible only

through the plaintiff’s UM coverage.

     An exception to that general rule can be found in the case

on which plaintiff relies here -- Bencivenga.      In that case, a

nightclub patron sued the club after he was punched in the face

by a fellow patron, whose identity he did not know.      
258 N.J.

Super. at 402.   The complaint named the assailant as a John Doe

defendant.   Ibid.   The trial court, however, refused to allow

the jury to consider the John Doe defendant’s negligence.        Ibid.

     On appeal, the nightclub argued that the trial court should

have allowed the jury to apportion fault between the nightclub

and the John Doe assailant.    Id. at 406.    The Appellate Division

relied on a policy justification to affirm the trial court --

that the nightclub was more likely than the plaintiff to know

the assailant’s identity.
6 Id. at 410.    The panel reasoned that


6  To the extent that the holding in Bencivenga also rested on
the panel’s determination that fault could not be allocated to
                                  17
by keeping the John Doe assailant off the verdict sheet, the

trial court forced the nightclub to either identify him and

mitigate its share of the fault, or decline to name him and bear

the cost of his share.   Ibid.   According to the Appellate

Division, that would create an incentive for the identified

defendant to name John Doe tortfeasors so that they can, in

turn, share in the allocation of fault, reducing the identified

defendant’s exposure.    Ibid.

    We turn now to the facts of this case and review de novo

the legal question of whether fault was properly allocated to

the known but unidentified John Doe defendant under the JTCL and

the CNA.   See Brandt, 
214 N.J. at 96 (citing Murray v.

Plainfield Rescue Squad, 
210 N.J. 581, 584 (2012); Manalapan

Realty, L.P. v. Twp. Comm. of Manalapan, 
140 N.J. 366, 378

(1995)).

                                 IV.

    Although there were only two defendants here -- the

identified defendant and the John Doe defendant -- this case




the John Doe defendant because “a fictitious person is not a
party to a suit,” 
258 N.J. Super. at 407, we note that a John
Doe defendant’s unavailability for final judgment under the law
of fictitious persons affects the ability to recover damages,
but does not affect that defendant’s status as a party for
purposes of fault allocation. Indeed, in the context of this
case, it is necessary that fault be allocated to such known but
unidentified defendants because of the existence of UM insurance
coverage.
                                 18
strongly resembles Cockerline.   In that case, the drivers of the

“phantom vehicles” were never identified, but they were known

inasmuch as their roles in that accident were acknowledged.

Therefore, just as fault could be allocated to the John Does in

that case, fault was properly allocated to John Doe here.

     Plaintiff describes John Doe in this case as a “fictitious”

person “who was not named and could never be named” and can

never be a “true party under [the CNA].”    We disagree.   To begin

with, John Doe here is a known but unidentified party.     Indeed,

plaintiff and defendant acknowledge the role that John Doe

played in causing the accident -- he improperly made a left turn,

cutting off the line of cars in plaintiff’s lane of travel.

     It is true that John Doe “is not someone against whom

recovery can be sought because the fictitious person rule, R.

4:26-4, and due process prevents entry of judgment against a

person designated by a fictitious name.”   Bencivenga, 
258 N.J.

Super. at 406-07.   However, John Doe in this case is not a

“fictitious person” in the sense that his existence and

involvement in the accident are not subject to dispute.     Rather,

John Doe was the operator of a motor vehicle involved in

plaintiff’s accident, who cannot be identified.   By requiring

that automobile insurance policies include a UM provision, the

Legislature has acknowledged and prepared for precisely such

circumstances.   See 
N.J.S.A. 17:28-1.1.   Stated simply, “phantom

                                 19
vehicles” driven by known but unidentified motorists that play a

part in an accident presumptively may be allocated fault in

accordance with the JTCL, the CNA, and the laws requiring UM

coverage.

    We agree that the presumptive ability to allocate fault to

such defendants may be defeated if the identified defendants do

not provide “fair and timely” notice of their intent to argue

that fault should be allocated to the John Doe defendant.

Young, 
123 N.J. at 596.    However, here, it is undisputed that

plaintiff received “fair and timely” notice defendant would

assert that John Doe was the cause of the accident.    Indeed,

defendant’s third-party negligence defense was set forth in his

answer to the complaint.   Plaintiff’s UM carrier, moreover,

received notice of the litigation, offered the policy limits in

settlement of the UM claim, and had the option to intervene.

    Additionally, the other grounds upon which allocation has

been denied in other cases do not apply here.   In contrast to

the employer in Ramos, there is no statutory bar to finding John

Doe liable.   Unlike the asbestos manufacturer added to the

verdict sheet in Higgins, John Doe was properly joined as a

party in this case.   Finally, unlike the club owner in

Bencivenga, defendant in this case was not more likely than

plaintiff to know John Doe’s identity.



                                 20
       We agree with defendant that, under the circumstances of

this case and in light of the undisputed evidence that John

Doe’s negligence contributed to the accident, the trial court

appropriately submitted the question of John Doe’s negligence to

the jury for fault allocation.

       For completeness, we add that John Doe’s party status under

the CNA’s fault-allocation provision does not mean that the UM

carrier who will ultimately cover any damages attributed to John

Doe must intervene in the case and formally become a party to

the negligence suit.    Here, plaintiff’s UM carrier received

notice of the litigation and had the option to intervene and

participate at trial in an effort to limit its exposure.

Because it is plaintiff’s UM carrier that is responsible for the

damages caused by John Doe, there is no reason to require its

participation in this litigation where it chose not to do so.

       Indeed, our courts recognize that under some circumstances

“a defendant is allowed to prove that a non-party was the sole

proximate cause of the plaintiff’s harm -- the so-called 'empty

chair’ defense in which a defendant shifts blame to a joint

tortfeasor who is not in the courtroom.”    Brodsky, 
181 N.J. at
 114.    To the extent that plaintiff and amicus claim that the

“empty chair” defense is being permitted here, this is such a

circumstance.



                                 21
    In sum, plaintiff and defendant both asserted the existence

of a “phantom vehicle.”   Plaintiff and plaintiff’s UM carrier

received necessary notice that defendant would assert John Doe’s

responsibility for the accident.       Cf. R. 4:7-5.   Therefore, the

CNA mandates the allocation of fault to John Doe, a party to

this action.

                                  V.

    For the reasons set forth above, the judgment of the

Appellate Division is affirmed.



     CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, and TIMPONE join in JUSTICE SOLOMON’s opinion.
JUSTICE FERNANDEZ-VINA did not participate.




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