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 lanе 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 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 Doe
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.
The jury found defendant three percent negligent and John Doe ninety-seven percent negligent. Ultimately, the jury awarded
On appeal, the Appellate Division affirmed, concluding that an alleged tortfeasor does nоt 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
We granted plaintiff's petition for certification.
II.
A.
Plaintiff argues that a jury should not be permitted to apportion fault between а 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
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"
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 surprisеd 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
C.
The NJAJ argues that the Appellate Division conflated the concept of fictitious parties with the concept of phantom vehicles
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
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 аlleged to have contributed to the plaintiff's harm." Town of Kearny v. Brandt,
The allocation of damages among joint tortfeasors is prescribed by the CNA. The CNA providеs 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.
"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.,
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.,
That рrinciple 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 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.,
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."
The appellate panel properly held that "our Legislature expressed its intent to limit the task of the trier of fact to 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,
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 thаt 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,
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
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 autоmobile insurance policies include a UM provision since 1968. N.J.S.A. 17:28-1.1 ; Riccio v. Prudential Prop. & Cas. Ins. Co.,
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,
The Appellate Division held as much in Cockerline v. Menendez,
The panel noted the "different goals and purposes" served by thе 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.' "
In accordance with those distinct policy aims, the Appellate Division panel allowed the allocation of fault to the John Doe drivers.
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
An exception to that general rule can be found in the case on which plaintiff relies hеre- 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.
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.
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
IV.
Although there were only two defendants here-the identified defendant and the John Doe defendant-this case 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,
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.
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 participatе 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.
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.
JUSTICE FERNANDEZ-VINA did not participate.
Notes
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.
"The practical effect of a defendant proving that the 'empty chair' was responsible for the accident is that the plaintiff will rеceive no recovery." Brodsky v. Grinnell Haulers, Inc.,
"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.,
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 ... greatеr 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,
A Demand for Arbitration can be filed, in lieu of a lawsuit, under the UM provisions of an insurance contract. See Riccio,
To the extent that the holding in Bencivenga also rested on the panel's determination that fault could not be allocated to the John Doe defendant because "a fictitious person is not a party to a suit,"