Can you apportion fault in a car accident between a ‘phantom’ & an actual defendant?
Recovery for damages in auto accidents can be complicated when you know someone else was at fault, but you can't find the wrongdoer.
This story is reprinted with permission from FC&&S Legal, the industry’s only comprehensive digital resource designed for insurance coverage law professionals. Visit the website to subscribe.
If you drive on any U.S. highway or busy street, this scenario is familiar to you. Driver A — usually weaving in and out of traffic at high speed — slows down abruptly causing Driver B in the following car to slam on the brakes and be rear-ended by Driver C in the car behind Driver B. Sometimes, there’s a chain reaction of several cars hitting each other, but Driver A sails on down the road, unscathed.
In this situation, who is at fault? If fault is to be apportioned, what’s the correct method when Driver A is unidentified? The N.J. Supreme Court has provided an answer in a recent decision.
The case
The case arose out of a car accident in Florence Township, N.J., when a car driven by Mark Krzykalski (plaintiff) was in the left lane traveling north and a car driven by David Tindall (defendant) was directly behind the 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. The plaintiff was able to stop his car without striking the vehicle in front of him. The defendant, however, was unable to stop in time, and he rear-ended the plaintiff’s vehicle.
The plaintiff suffered serious injuries in the accident and filed a claim for uninsured motorist (UM) benefits with his automobile insurance carrier. The plaintiff rejected his insurance company’s offer to settle the UM claim for the policy limits and sued the defendant and John Doe for negligence.
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The case proceeded to trial, during which the 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 the plaintiff’s objection, the trial court included John Doe on the verdict sheet and instructed the jury to allocate fault between the defendant and John Doe in the event that both parties were found negligent.
The jury found the defendant 3% negligent and John Doe 97% negligent. Ultimately, the jury awarded the plaintiff $107,890 in damages.
An intermediate appellate court affirmed, concluding that an alleged wrongdoer (tortfeasor, in legal parlance) did not need to be an identified party for his or her negligence and degree of responsibility to be considered by a jury. In the appellate panel’s view, precluding fault allocation to known but unidentified defendants would give litigants in the plaintiff’s position an improper windfall.
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John Doe: Not a ‘true party’?
The dispute reached the New Jersey Supreme Court. There, the plaintiff argued that the jury should not have been permitted to apportion fault between the defendant and John Doe — an unidentified party who was not represented by counsel. In the plaintiff’s view, John Doe was not a “true party” to the case under the state’s comparative negligence act (CNA), and placing John Doe on the jury verdict sheet and allowing fault allocation to John Doe resulted in “a miscarriage of justice.” The plaintiff also argued that if the court permitted allocation to John Doe defendants, UM carriers should be required to present a defense on their behalf.
For his part, the defendant argued that it was proper to allocate fault to John Doe because the legislative purpose of the CNA was to promote the fair sharing of the burden of a judgment. In the defendant’s view, it was the joint tortfeasor status — not the party status — that determined whether allocation was appropriate, and each tortfeasor should pay damages in accordance with the percentage of fault attributed to it by the factfinder.
Thus, according to the 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. The defendant also argued that there was no reason to force the plaintiff’s UM carrier to participate in the litigation because it already had notice of the litigation and had the option to intervene on its own volition.
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N.J. Supreme Court’s Decision
The N.J. Supreme Court concluded that the jury had properly apportioned fault between the defendant and John Doe because the plaintiff and the defendant both acknowledged the role of John Doe in the accident, the plaintiff’s UM carrier was aware of the litigation, and the plaintiff had “fair and timely” notice that the defendant would assert that John Doe had caused the accident.
In its decision, the court first explained that the CNA requires the allocation of fault to defendants who may be responsible for a plaintiff’s injury without regard to whether those defendants are, for other reasons, invulnerable to recovery by the plaintiff.
The court next pointed out that, 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. Indeed, the court added, UM coverage provides for judgment to be entered in favor of plaintiffs when a tortfeasor is a known but unidentified motorist. The court then decided that fault could be allocated to John Doe, the unidentified driver of a “phantom” vehicle, given that John Doe’s role in the accident had been acknowledged.
The court was not persuaded by the plaintiff’s contention that John Doe was a “fictitious” person “who was not named and could never be named” and who could never be a “true party under [the CNA].” According to the court, John Doe was “a known but unidentified party” and both the plaintiff and the defendant acknowledged the role that John Doe had played in causing the accident: He improperly made a left turn, cutting off the line of cars in the plaintiff’s lane of travel.
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No recovery against ‘The Phantom Vehicle’
The court conceded that John Doe was not someone against whom recovery could be sought, explaining that due process prevented entry of judgment against a person designated by a fictitious name. The court stated, however, that John Doe was not a “fictitious person” in the sense that “his existence and involvement in the accident” were not subject to dispute. Rather, John Doe “was the operator of a motor vehicle” involved in the plaintiff’s accident who could not be identified. The court said: “Stated simply, “phantom vehicles” driven by known but unidentified motorists that play a part in an accident presumptively may be allocated fault in accordance with the … CNA, and the laws requiring UM coverage.
The court acknowledged that the presumptive ability to allocate fault to a John Doe defendant could be defeated if the identified defendants did not provide “fair and timely” notice of their intent to argue that fault should be allocated to the John Doe defendant.
It also decided that John Doe’s party status under the CNA’s fault-allocation provision did not mean that the UM carrier that ultimately would cover any damages attributed to John Doe had to intervene in the case and formally become a party to the negligence suit. According to the court, because it was the plaintiff’s UM carrier that was responsible for the damages caused by John Doe, there was no reason to require its participation in the litigation where it had chosen not to do so.
The case is Krzykalski v. Tindall, No. A-55 (N.J. April 17, 2018).
Editor’s Note: There are various ways that attorneys and insurers might use to try to find a phantom driver, including traffic or other cameras that photographed the incident, eyewitnesses, or a record of the license plate and description of the driver’s car. That frequently is not possible, however, and New Jersey insurance agents should keep this decision in mind when helping clients who might be filing claims in similar situations.
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Steven A. Meyerowitz, Esq., is the director of FC&S Legal, the editor-in-chief of the Insurance Coverage Law Report, and the founder and president of Meyerowitz Communications Inc. Email him at smeyerowitz@meyerowitzcommunications.com.