Opinion
DOCKET NO. A-1578-13T4
07-01-2015
HEATHER CHAMPAGNE-BRADY, Plaintiff-Appellant, v. ANTHONY GALLO and GERARD INAUGURATO, Defendants-Respondents.
Drazin & Warshaw, P.C., attorneys for appellant (Christopher R. Brown, on the brief). Johnson & Kriney, attorneys for respondent Anthony Gallo (Jared A. Johnson, on the brief). Carton Law Firm, LLC, attorneys for respondent Gerard Inaugurato (David J. Leone, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1794-12. Drazin & Warshaw, P.C., attorneys for appellant (Christopher R. Brown, on the brief). Johnson & Kriney, attorneys for respondent Anthony Gallo (Jared A. Johnson, on the brief). Carton Law Firm, LLC, attorneys for respondent Gerard Inaugurato (David J. Leone, on the brief). PER CURIAM
Plaintiff Heather Champagne-Brady appeals the trial court's order granting summary judgment because her suit, the second suit regarding the same automobile accident, violated the entire controversy doctrine. We affirm.
I.
In reviewing the grant of a motion for summary judgment, we "accept as true all the evidence which supports the position of the party defending against the motion and must accord [that party] the benefit of all legitimate inferences which can be deduced therefrom." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 535 (1995) (internal quotation marks omitted). The following facts were either proffered by Champagne-Brady in her complaint and admitted in defendant Anthony Gallo's answers, or asserted by Champagne-Brady in her deposition.
On May 4, 2010, Gallo was driving his motorcycle on Raritan Road in Clark. At the T-intersection of Raritan Road and Featherbed Lane, defendant Gerard Inaugurato was stopped in northbound traffic on Raritan Road, while Champagne-Brady was stopped on Featherbed Lane waiting to make a left turn. Inaugurato allegedly waved Champagne-Brady to make the left turn in front of him onto southbound Raritan Road. Gallo drove his motorcycle past the left side of Inaugurato's vehicle, and collided with Champagne-Brady's vehicle making the left turn from Featherbed Lane.
The following day, Champagne-Brady began experiencing lower back pain. On May 10, 2010, she was examined by an orthopaedist, Dr. Michael J. Cunningham. In September 2010, an MRI revealed she had a disc bulge. Meanwhile, Champagne-Brady hired personal counsel who, on June 14, 2010, advised Gallo and Gallo's insurer that Champagne-Brady sustained injuries when her car was struck by his motorcycle.
Gallo filed a complaint against Champagne-Brady on July 9, 2010, for his injuries stemming from the accident. Champagne-Brady was personally served with the Gallo complaint. Champagne-Brady turned the case over to her insurance carrier, GEICO, which provided her with an attorney. The attorney filed an answer and a third-party complaint for contribution against Inaugurato. He later settled the case for the $15,000 policy limit in a stipulation of dismissal filed on June 30, 2011.
Champagne-Brady's complaint against Gallo and Inaugurato for her own injuries was filed by her personal counsel on April 23, 2012. In response, both Inaugurato and Gallo filed motions for summary judgment raising the entire controversy doctrine. After oral argument, Judge Dennis R. O'Brien granted Gallo's motion on September 12, 2013 and Inaugurato's motion on November 8, 2013. Champagne-Brady appealed both orders granting summary judgment.
Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). To determine whether there is a genuine issue of material fact, a "judge must decide whether 'the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting Brill, supra, 142 N.J. at 540). Because "appellate courts 'employ the same standard that governs the trial court,'" we review summary judgment rulings de novo, and the "trial court rulings 'are not entitled to any special deference.'" Henry v. N.J. Dept. of Human Servs., 204 N.J. 320, 330 (2010) (citations omitted). We must hew to that standard of review.
The entire controversy doctrine "embodies the principle that the adjudication of a legal controversy should occur in one litigation in only one court; accordingly, all parties involved in a litigation should at the very least present in that proceeding all of their claims and defenses that are related to the underlying controversy." Wadeer v. N.J. Mfrs. Ins. Co., 220 N.J. 591, 605 (2015) (internal quotation marks omitted). The purposes of the doctrine are "'(1) the need for complete and final disposition through the avoidance of piecemeal decisions; (2) fairness to parties to the action and those with a material interest in the action; and (3) efficiency and the avoidance of waste and the reduction of delay.'" Ibid. (quoting DiTrolio v. Antiles, 142 N.J. 253, 267 (1995)). Rule 4:30A generally provides that the "[n]on-joinder of claims required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims to the extent required by the entire controversy doctrine[.]"
A.
"In determining whether a subsequent claim should be barred under [the entire controversy] doctrine, 'the central consideration is whether the claims against the different parties arise from related facts or the same transaction or series of transactions.'" Wadeer, supra, 220 N.J. at 605 (quoting DiTrolio, supra, 142 N.J. at 268). "'It is the core set of facts that provides the link between distinct claims against the same parties . . . and triggers the requirement that they be determined in one proceeding.'" Ibid. (quoting DiTrolio, supra, 142 N.J. at 267-68).
Here, there is no dispute that Champagne-Brady's claims against Gallo and Inaugurato arise from the same set of facts or transaction, namely the auto accident of May 4, 2010, that was the subject of Gallo's earlier proceeding against Champagne-Brady. See Prevratil v. Mohr, 145 N.J. 180, 183, 195-97 (1996) (holding "that the entire controversy doctrine applies to actions arising out of automobile-accident cases"); Burrell v. Quaranta, 259 N.J. Super. 243, 255 (App. Div. 1992) (same). Therefore, Champagne-Brady was required to "present in that proceeding all of [her] claims and defenses that are related to the underlying controversy," Wadeer, supra, 220 N.J. at 605, unless an exception applied.
Champagne-Brady argues there was no adjudication or arbitration of the issues in the first suit because it settled, and thus her claim is not barred by the entire controversy doctrine. However, the doctrine can apply "'when a prior action based on the same transactional facts has been tried to judgment or settled.'" 700 Highway 33 LLC v. Pollio, 421 N.J. Super. 231, 238 (App. Div. 2011) (quoting Allstate N.J. Ins. Co. v. Cherry Hill Pain & Rehab. Inst., 389 N.J Super. 130, 140 (App. Div. 2006) (quoting Arena v. Borough of Jamesburg, 3 09 N.J. Super. 106, 111 (App. Div. 1998)), certif. denied, 190 N.J. 254 (2007)). "[T]he consideration of inefficiency and waste of judicial resources is not negated by the fact that a prior action did not proceed to trial or a judgment on the merits" and instead was settled. DiTrolio, supra, 142 N.J. at 278. "More importantly, there is an obvious waste of judicial resources if the second litigation would have been obviated or rendered unnecessary by mandatory joinder." Ibid.
In DiTrolio, our Supreme Court ruled that the doctrine precluded a plaintiff's new suit against new defendants where the prior suit involved almost "one year of vigorous pre-trial litigation, including fairly extensive discovery," before it was settled. Ibid. Moreover, the Court pointed out that at the time of settlement, the plaintiff knew of the additional defendants and could have brought them into the prior suit by filing a claim against them. Id. at 279.
Here, Gallo filed the initial complaint on July 9, 2010. The case was dismissed with prejudice following a settlement approved by Champagne-Brady's GEICO-provided counsel on June 30, 2011, almost one year later. During that time, Champagne-Brady answered Gallo's complaint, asserted defenses, and filed a third-party complaint against Inaugurato. She also served interrogatories and supplemental interrogatories and received answers. Thus, the original suit was litigated for a similar time period as DiTrolio, and likewise included in discovery. Moreover, Champagne-Brady not only knew the persons against whom she had a claim, but they were already parties in Gallo's lawsuit against her. She "had a fair and reasonable opportunity to have fully litigated [her] claim in the original action" prior to settlement. DiTrolio, supra, 142 N.J. at 273 (internal quotation marks omitted); see Prevratil, supra, 145 N.J. at 183-84, 196 (finding "ample evidence" supported the dismissal of the second suit under the entire controversy doctrine based on a prior suit which settled within seven months).
Thus, this case bears no resemblance to Karpovich v. Barbarula, 150 N.J. 473, 476 (1997), where the Supreme Court held "that the settlement of the underlying action did not sufficiently involve the use of judicial resources to invoke the entire controversy doctrine as a bar to [a] legal-malpractice action." In Karpovich, "[o]nly seven days" transpired between the plaintiff's filing of her initial suit and its settlement by "the entry of a consent judgment," and the suit involved no discovery and "virtually no judicial resources." Id. at 481-82.
The purpose of the entire controversy doctrine is "'to eliminate delay, prevent harassment of a party and unnecessary clogging of the judicial system, avoid wasting the time and effort of the parties, and promote fundamental fairness.'" Alpha Beauty Distribs., Inc. v. Winn-Dixie Stores, Inc., 425 N.J. Super. 94, 104 (App. Div. 2012) (quoting Cogdell v. Hosp. Ctr. at Orange, 116 N.J. 7, 15 (1989)). To allow Champagne-Brady's suit after the year-long prior suit would engender the "waste of judicial resources" we have sought to avoid. Karpovich, supra, 150 N.J. at 482. For that reason, the trial court properly rejected this argument by Champagne-Brady.
B.
The entire controversy "doctrine 'does not apply to unknown or unaccrued claims.'" Wadeer, supra, 220 N.J. at 606 (quoting DiTrolio, supra, 142 N.J. at 274). Champagne-Brady argues the entire controversy doctrine is inapplicable here because she was uncertain if her injuries would pass the threshold for a permanent injury under N.J.S.A. 39:6A-8. N.J.S.A. 39:6A-8(a) requires insureds who elected the "'[l]imitation on lawsuit' option" to show specified injuries, including "a permanent injury" to a "body part or organ," and to provide a physician's certification to that effect. Our Supreme Court has indicated:
[i]n deciding whether to apply the [entire controversy] doctrine, a trial court may consider whether an injured party lacks sufficient information to assert a claim because of the uncertainty about (a) the permanency of the loss of use of a body organ or member; (b) the significance of limitation of use of a bodily function orHowever, the Court noted that "[c]oncerns about such matters need not deprive the courts, the parties, and the public of the benefits of a court system that is efficient, as well as fair." Ibid.
system; or (c) the extent of impairment of a non-permanent injury.
[Prevratil, supra, 145 N.J. at 197 (citations omitted).]
Champagne-Brady has admitted facts which show she knew of her injury in time to raise it in the original lawsuit. She asserted, and Judge O'Brien found, that her back pain began the day after the May 4, 2010 accident. Five days later, she sought treatment from Dr. Cunningham, who found tenderness in the lumbar region. Champagne-Brady continued to complain of pain, and Dr. Cunningham noted the possibility of disc herniation. After multiple appointments for orthopaedic treatment and physical therapy, she obtained an MRI on September 28, 2010, showing she had a "L4-5 disc bulge." Indeed, Dr. Cunningham relied on that "L4-5 disc bulge" in finding Champagne-Brady had "a permanent injury" in his May 17, 2012 certification under N.J.S.A. 39:6A-8(a). Champagne-Brady admits she stopped treatment on January 11, 2011, and does not claim to have acquired any additional medical information in the five months before the settlement of the original litigation on June 30, 2011.
Champagne-Brady argues her claims were unripe or unaccrued at the time of the original action because she had not yet obtained her physician's certification under N.J.S.A. 39:6A-8(a). Under N.J.S.A. 39:6A-8(a), a plaintiff must "provide the defendant with a certification from the licensed treating physician" that, based on "objective clinical evidence," the plaintiff "sustained an injury." However, Champagne-Brady failed to proffer why she could not obtain Dr. Cunningham's certification before the first suit was settled June 30, 2011. Dr. Cunningham had treated her since May 10, 2010, stopped treating her on January 11, 2011, and based his certification on a diagnosis made on September 28, 2010. Moreover, a physician's certification is not a prerequisite to filing a complaint. See Casinelli v. Manglapus, 181 N.J. 354, 365 (2004). Further, N.J.S.A. 39:6A-8(a) allows for a sixty-day period after the defendant answers the complaint, and extendable by the trial court for an additional sixty days "upon a finding of good cause," for the plaintiff to obtain and submit the certification. Champagne-Brady's argument is without merit.
Champagne-Brady also argues that she was unaware GEICO appointed counsel on her behalf, received no communication from the attorney provided for her by GEICO, and was uninformed of the status and settlement of the first case. However, as Judge O'Brien noted, when a plaintiff's counsel fails to advise her to "join [her] affirmative claim in defending the [initial] action or risk its loss altogether," then her remedy, if any, is against counsel. Burrell, supra, 259 N.J. Super. at 254; see also Prevratil, supra, 145 N.J. at 194-95. Champagne-Brady's alleged lack of knowledge on the progress of the suit cannot be used revive a case to the detriment of Gallo and Inaugurato. "Nothing in this case warrants relief from the entire controversy bar." Burrell, supra, 259 N.J. Super. at 255.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION