Samuel v. Doe ( 1998 )

SHEBELL, P.J.A.D.,

concurring in part, and dissenting in part.

I concur with my colleagues’ finding that Samuel should “not receive UM benefits under the MTF policy because the LeBaron is not an uninsured vehicle.” N.J.S.A. 17:28-1.1. I disagree, however, with their decision to relax Rule 4:26-4, pursuant to Rule 1:1-2, in order to allow Samuel to obtain a judgment against the fictitious “John Doe” defendant.

Although I agree that Samuel should not be left without a remedy, it is not necessary to circumvent Rule 4:26 — 4 in order to achieve this result. The most effective and direct procedural remedy would be to allow Samuel, on remand, in the interests of justice, to file a counterclaim in MTF’s declaratory judgment action. R. 4:7 — 4; See generally, Jeffer v. National Fire Ins. Co. of Pittsburgh, 306 N.J.Super. 82, 84, 703 A.2d 316 (App.Div.1997) (involving defendant filing answer, counterclaim, and third party claim for declaratory judgment in response to plaintiffs complaint for declaratory judgment); Appleman, Insurance Law and Practice § 11375, at 446 (1980) (stating that a “defendant in an action for declaratory judgment may counterclaim for affirmative relief, and secure an award under the policy or other relief upon such counterclaim if successful”).

In a declaratory judgment action pursuant to a counterclaim, the court may determine not only the parties’ rights under an insurance contract, but also issues of fact. See N.J.S.A 2A:16-53; N.J.S.A 2A:16-58 (“When a proceeding under this article involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are determined in other actions in the court in which the proceeding is pended.”). As long as Samuel establishes that she was injured while someone else drove the LeBaron with her permission, and that she made reasonable efforts to locate the unknown driver, she may defeat summary judgment on this issue and proceed with her injury claims with MTF providing coverage and indemnification to the driver of the LeBaron.

It is understandable why Samuel’s counsel filed only an answer rather than a counterclaim in the declaratory judgment action; it was not unreasonable to assume that perfection of the claim against MTF could await the obtaining of the required verdicts in the injury action against the unknown defendant. If a counterclaim had been filed, however, the procedural avenues of this case would have been much easier to traverse, and the “falling through the cracks” problem perceived by the majority would not have been an issue. Accordingly, I part company from my colleagues, in that I see no reason or purpose to enter judgment against the unknown defendant in contravention of our court rules. In the interests of justice, on remand, the court should permit Samuel to file a counterclaim in the MTF declaratory judgment action, and resolve the issues of whether she was injured while someone else was driving the LeBaron with her permission, and whether she has made reasonable efforts to locate the driver.

Another option, on remand, would be for the trial judge to construct the procedure as though, in effect, a counterclaim had been filed. Whether or not to try the declaratory judgment action before the injury action rests in the sound discretion of the court. R. 4:38-2; Tobia v. Cooper Medical Center, 136 N.J. 335, 643 A.2d 1 (1994); Ventura v. Ford Motor Corp., 180 N.J.Super. 45, 433 A.2d 801 (App.Div.1981). Thus, the trial judge could simply opt to try the injury action before, the declaratory judgment action, and allow the resolution of the issues in the declaratory judgment action to be conditionally based on the findings to be made by the jury in the injury action. Interrogatories could be propounded on the jury to determine whether Samuel made reasonable efforts to locate the driver and whether the driver was driving with Samuel’s permission. If Samuel is unable to establish these points, then a finding in favor of MTF would be warranted. In addition, the court could also present to the jury, if warranted, the issue of Samuel’s comparative negligence, Lee v. Kiku Restaurant, 127 N.J. 170, 603 A.2d 503 (1992), and the damages, if any, to which Samuel is entitled. Trying the cases in this order would give MTF the clear message that they should appear in defense of the John Doe defendant in the injury action, based upon a judicially recognized reservation of right. There is no reason why MTF cannot participate in the injury trial with leave of court while preserving its rights in the declaratory judgment action.

Therefore, I concur in the result, but dissent as to the procedure that the majority would employ to bring a just conclusion to these actions.