In the past, identified defendants drew the shorter straw when it came to involvement of culpable but unidentified tortfeasor, such as operators of phantom vehicles. The courts would not allow the identified defendant to request the jury to apportion fault with a John Doe defendant, which usually meant the identified defendant was the only defendant listed on the jury verdict sheet and was left holding the bag at the time of verdict. Sometimes the plaintiff had uninsured motorist (UM) coverage to take the place of the phantom operator, which would give the identified defendant an opportunity to get a phantom operator on the verdict sheet. This would only work if the plaintiff sued his/her UM insurance carrier or the UM insurance carrier intervened. If the identified defendant tried to third-party in the UM carrier into the suit, the UM carrier would assert the identified defendant had no standing to sue it due to lack of privity of contract, i.e., “you are not our insured!”
Well, the New Jersey Supreme Court recently helped solve that problem involving unidentified tortfeasors in Krzykalski v. Tindall, A-55-16, 2018 N.J. LEXIS 484 (2018). In that matter, the Court held that a jury properly apportioned fault between a known identified defendant and a John Doe defendant phantom driver in an automobile accident matter. In this matter, the plaintiff Krzykalski was proceeding in the left lane with the known defendant Tindall traveling behind her in the same lane. A phantom vehicle in the right lane made a sudden left hand turn from the right lane in front of plaintiff Krzykalski who responded by bringing his vehicle to a sudden stop. Plaintiff Krzykalski was then struck in the rear by the identified defendant Tindall. Plaintiff Krzykalski sued the phantom driver identified as “John Doe” and Tindall for personal injuries sustained in the accident. Defendant Tindall’s answer put plaintiff Krzykalski on notice that he intended to blame the other driver. “John Doe” was never identified in discovery. Tindall’s uninsured motorist (“UM”) carrier was on notice of the lawsuit but chose not to intervene; it’s response was to offer its policy limits to resolve the UM claim. At trial, Tindal was able to convince the trial judge to instruct the jury to apportion fault between himself and “John Doe.” The jury apportioned 97% fault to the John Doe defendant and 3% fault to the known defendant Tindal, with a verdict of $107,000.
On appeal, plaintiff Krzykalski argued that a jury should not be permitted to apportion fault between a named party defendant and an unidentified party, and that the trial court in doing so created a miscarriage of justice. The New Jersey Supreme Court started out with the premise that Comparative Negligence Act requires the jury to apportion fault among joint tortfeasors, and that apportionment is not dependent upon whether the party can be identified by name, and whether the plaintiff can recover money from the joint tortfeasor. The ability to point the finger at the John Doe defendant at trial was conditioned upon:
- the plaintiff was on timely notice that the known defendant was going to blame the John Doe defendant at the time of trial;
- there was no disagreement as to the John Doe’s involvement as a factor in the claim;
- the known defendant was not in a better position than the plaintiff to identify the John Doe tortfeasor.
The Court also noted that the legislature had determined that judgment could not be entered against a John Doe defendant, and that the legislature created UM coverage to help compensate for that empty pocket.
In addition, the Court also ruled that the UM carrier could not be compelled to intervene and participate at trial if it had notice of the lawsuit, and chose not to do so.
Therefore, we take notice of our ability to point the finger at an identified John Doe defendant going forward. Defendants should consider filing a third-party complaint against a John Doe tortfeasor if the plaintiff does not sue such a fictitiously named defendant directly or does not name the UM carrier on the complaint in order to preserve this right at the time of trial.