NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2539-14T3 A-2774-14T3

MARK R. KRZYKALSKI and MICHELE KRZYKALSKI, APPROVED FOR PUBLICATION

Plaintiffs-Appellants, December 5, 2016

APPELLATE DIVISION v.

DAVID T. TINDALL,

Defendant-Respondent.

____________________________________________________

Submitted September 13, 2016 – Decided December 5, 2016

Before Judges Fisher, Leone and Vernoia (Judge Leone concurring).

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3048-11.

Law Offices of Robert F. Rupinski, attorneys for appellant Michele Krzykalski (Robert F. Rupinski, on the brief).

Andres & Berger, P.C., attorneys for appellant Mark R. Krzykalski (Kenneth G. Andres, Jr., of counsel; Abraham Tran, on the brief).

Parker Young & Antinoff, attorneys for respondent (Brad A. Parker, on the brief).

The opinion of the court was delivered by

FISHER, P.J.A.D. Plaintiff Mark R. Krzykalski commenced this action,

alleging the negligence of both defendant David T. Tindall and a

John Doe in the operation of their vehicles that caused an

accident in which he was injured. In their separate appeals,

which we consolidated, plaintiff and his ex-wife, Michele,1 argue

the jury's award of damages was against the weight of the

evidence and constituted a miscarriage of justice; plaintiff

also contends, among other things, that the judge erred in

allowing the jury to apportion liability between defendant and

the fictitiously-named John Doe. We find no merit in their

arguments and affirm.

The auto accident in question occurred on October 24, 2009,

at the intersection of Hornberger Avenue and Route 130 in

Florence Township. Plaintiff's vehicle was in front of and in

the same lane as Tindall's vehicle on northbound Route 130; both

had slowed to allow an emergency vehicle enter onto Route 130

from Hornberger Avenue. Once their vehicles began to move

forward, a vehicle driven by the fictitious John Doe passed them

from the right lane of the northbound Route 130 lanes and

crossed their lane to make a left turn onto Hornberger Avenue.

1 Plaintiff Michele Krzykalski asserted a per quod claim for loss of consortium and services. The evidence revealed the marriage was troubled; they separated in June 2012 and later divorced.

2 A-2539-14T3 Both plaintiff and Tindall braked as a result of Doe's actions.

Plaintiff was able to stop without striking the vehicle in front

of him; Tindall's vehicle struck the rear of plaintiff's

vehicle.

By way of pre-verdict motions, the judge denied plaintiff a

directed verdict on liability against Tindall and also rejected

plaintiff's request that Doe's negligence, or the apportionment

of liability between Tindall and Doe, be kept from the jury.

The jury found both Tindall and Doe negligent, and found Tindall

three percent and Doe ninety-seven percent responsible for

plaintiff's injuries. Damages were awarded in plaintiff's favor

in the amount of $107,8902; no damages were awarded to Michele.

In molding the verdict, the judge entered judgment in favor of

plaintiff and against Tindall in the amount of $3,236.70. Later

motions for a new trial or additur were denied.

Both plaintiff and Michele appealed. Plaintiff argues:

I. THE TRIAL COURT REVERSIBLY ERRED BY DENYING PLAINTIFF['S] MOTION FOR A DIRECTED VERDICT ON LIABILITY AS TO DEFENDANT TINDALL, AND THE LIABILITY VERDICT OF 97% AS TO THE PHANTOM JOHN DOE, AND 3% AS TO DEFENDANT TINDALL, WHO REAR-ENDED PLAINTIFF'S STOPPED VEHICLE, IS A MISCARRIAGE OF JUSTICE.

2 $91,250 in pain and suffering, disability and impairment, loss of enjoyment of life, and other non-economic losses, and $16,640 in lost past wages.

3 A-2539-14T3 II. THE TRIAL COURT REVERSIBLY ERRED IN PLACING THE PHANTOM "JOHN DOE" ON THE JURY VERDICT SHEET.

III. THE TRIAL COURT REVERSIBLY ERRED IN BARRING PLAINTIFF['S] THOMAS JEFFERSON UNI- VERSITY HOSPITAL RECORDS FROM EVIDENCE.

IV. THE TRIAL COURT REVERSIBLY ERRED IN PERMITTING DEFENDANT TO PRESENT TESTIMONY AND ARGUE THAT PLAINTIFF['S] INJURIES WERE CAUSED BY HIS RIDING A ROLLER COASTER.

V. THE DAMAGE VERDICT AS TO PLAINTIFF . . . IN THE AMOUNT OF $91,250.00 FOR PAIN AND SUFFERING, DISABILITY AND IMPAIRMENT, AND LOSS OF ENJOYMENT OF LIFE, DESPITE THE FACT THAT EVERY DOCTOR TESTIFIED PLAINTIFF HAD PERMANENT RESIDUAL BRAIN DAMAGE AND PERMANENT PARTIAL VISION LOSS, AND DEFENDANT STIPULATED THAT PLAINTIFF HAD INJURIES WHICH PIERCED THE LIMITATION ON LAWSUIT THRESHOLD, IS A MISCARRIAGE OF JUSTICE.

A. Plaintiff is Entitled to a New Trial, in Light of the Extent of Plaintiff['s] Injuries.

B. The Damage Verdict as to Plaintiff . . . in the Amount of $91,250.00 was a Miscarriage of Justice and Shocking to the Conscience, and a New Trial Should be Granted Pursuant to He v. Miller.3

VI. THE DAMAGE VERDICT AS TO PLAINTIFF . . . IN THE AMOUNT OF $16,540.00 FOR PAST LOST WAGES AND $0 FOR FUTURE LOST WAGES, ALTHOUGH THE EVIDENCE DEMONSTRATED THAT [PLAINTIFF'S] PAST AND FUTURE LOST WAGES AMOUNTED TO

3 During the pendency of this appeal, the Supreme Court rejected many aspects of its earlier holding in He v. Miller,

(2011). See Cuevas v. Wentworth,

(2016).

4 A-2539-14T3 $350,000 AND $1,554,800.00, RESPECTIVELY, IS A MISCARRIAGE OF JUSTICE.

VII. THE DAMAGE VERDICT OF ZERO AS TO PLAINTIFF MICHELLE KRZYKALSKI FOR HER PER QUOD CLAIM, DESPITE THE EVIDENCE SHOWING THAT [PLAINTIFF'S] INJURIES DESTROYED THEIR FAMILY, IS A MISCARRIAGE OF JUSTICE AND REFLECTS THE TRAVESTY OF THE ENTIRE VERDICT.

Michele argues, in a single point, that the jury's decision to

award her nothing was against the weight of the evidence and

represented a miscarriage of justice.

We turn first to whether the trial judge properly permitted

the jury's consideration and apportionment of John Doe's

liability, as well as whether the jury's verdict that Tindall

was only three percent responsible was against the weight of the

evidence.4 Thereafter, we briefly examine the arguments

concerning the jury's award of damages.

I

In urging our reliance on statements in our case law that

"a fictitious party is not a party to a suit," Bencivenga v.

J.J.A.M.M., Inc.,

(App. Div.) (emphasis

added), certif. denied,

(1992), and the statutory

4 We find insufficient merit in plaintiff's argument in his Point I that the judge erred in denying his motion for a directed verdict on Tindall's negligence to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), because the jury in fact found Tindall negligent.

5 A-2539-14T3 direction that the trier of fact determine "[t]he extent, in the

form of percentage, of each party's negligence," N.J.S.A. 2A:15-

5.2(b) (emphasis added), plaintiff contends that the trial judge

erred in directing the jury to determine whether John Doe was

negligent and, if so, the percentage to which he was

responsible. Although it gives the appearance of some

syllogistic logic, we do not find this argument persuasive.

Consideration of an alleged tortfeasor's negligence and

degree of responsibility is not governed by whether that

tortfeasor may be said to be a "party" but turns on whether the

other tortfeasor "will be affected by the verdict." See Ramos v.

Browning Ferris Indus. of S. Jersey, Inc.,

(App. Div. 1984), rev’d on other grounds,

(1986). The law is best served, as the Court observed in Town

of Kearny v. Brandt,

(2013), when the

factfinder is allowed to evaluate the liability of all those

potentially responsible. So, although, for example, an employer

insulated by workers compensation laws will not have its

responsibility apportioned, Ramos, supra,

, other

tortfeasors, such as those who have sought or obtained the

protection of bankruptcy laws, and therefore are no longer

answerable in damages, should nevertheless be considered,

Brodsky v. Grinnell Haulers, Inc.,

(2004); see

6 A-2539-14T3 also Town of Kearny, supra,

(providing other

examples of tortfeasors whose liability was considered and

apportioned despite plaintiff's inability to recover from them

in whole or in part).

Because the Comparative Negligence Act would be disserved

by exalting the "party" label in adjudicating responsibility for

a plaintiff's claim, we have recognized that a non-settling

defendant has a right to have a jury apportion the liability of

a settling defendant once it has been proven at trial that the

settling defendant was, in fact, negligent. See Green v. Gen.

Motors Corp.,

(App. Div.), certif.

denied,

(1998); Mort v. Besser Co.,

(App. Div. 1996), certif. denied,

(1997).

Consequently, we have held that the comparative negligence of a

phantom driver, such as John Doe here, should be considered by a

jury in a trial brought by an injured party against another

tortfeasor. See Cockerline v. Menendez,

(App. Div.), certif. denied,

(2010).

Plaintiff argues this case differs from Cockerline because

in that case a uninsured motorist (UM) carrier standing in the

shoes of the fictitious driver settled with plaintiff prior to

trial and, here, the proceedings between plaintiff and his UM

7 A-2539-14T3 insurer have yet to be resolved.5 Despite that factual

difference, however, there remains in both instances a need to

apportion responsibility between the two tortfeasors. In short,

if plaintiff and the UM insurer had settled prior to trial,

apportionment would be required because Tindall, the remaining

defendant, would be "chargeable with the total verdict less that

attributable to the settling defendant's percentage share."

Cartel Capital Corp. v. Fireco of N.J.,

(1980).

We see no distinction worthy of creating a different rule and

drawing a different conclusion where the plaintiff and the UM

insurer have not yet litigated their disputes. To allow

plaintiff to obtain from Tindall the full amount of damages

assessed by the jury and, later, seek recovery from the UM

carrier, could result in a windfall, contrary to our prior

holdings. As we said in Cockerline, "to preclude defendants from

seeking an apportionment of liability against the phantom

vehicles does not advance the purposes of the UM law and

frustrates the purposes of the joint tortfeasor and comparative

fault law."

. We, thus, reject

plaintiff's contention that, because John Doe may not be labeled

5 According to the parties' submissions, plaintiff previously refused his UM carrier's offer of the policy limits both before and during trial, leaving that matter to be determined upon an eventual demand for UM arbitration.

8 A-2539-14T3 a "party," his negligence should not have been apportioned by

the jury.6

We also reject plaintiff's argument that the jury's finding

that John Doe was ninety-seven percent responsible and Tindall

only three percent responsible was against the weight of the

evidence. Plaintiff chiefly relies on Dolson v. Anastasia,

(1969), which held that a new trial was required

when a jury failed to find defendant negligent when his vehicle

struck plaintiff's vehicle from the rear. Contrary to what

required a new trial in Dolson, the jury here found Tindall

negligent and his negligence a proximate cause of plaintiff's

injuries. The question posed here -- in the context of the

trial judge's denial of a motion for a new trial on this point -

6 It may, at first blush, appear that our holding today and, for that matter, our holding in Cockerline, are inconsistent with our earlier decision in Bencivenga, where we upheld a decision not to submit a fictitious defendant's liability to the factfinder for apportionment. Such an assumption would be mistaken. In deciding Bencivenga, we were persuaded that the defendant nightclub was in the best position to identify the fictitious defendant, who was one of its bouncers, and that it would have been inequitable to allow the nightclub to receive a potential benefit from its reticence.

. Similarly, our holdings here and in Cockerline also provide a more equitable result. See also Kranz v. Schuss, __ N.J. Super. __, __ (App. Div. 2016) (slip op. at 20) (holding that the only "equitable result" in this New Jersey suit – where an earlier New York suit against a New York defendant – was to have the New Jersey jury assign and allocate the fault of both the New Jersey defendant and the New York tortfeasor, even though the New York tortfeasor could never be a "party" to the New Jersey suit due to lack of personal jurisdiction).

9 A-2539-14T3 - simply concerns whether the jury's apportioning of

responsibility between two tortfeasors was against the weight of

the evidence.

A judge shall grant a motion for a new trial "if, having

given due regard to the opportunity of the jury to pass upon the

credibility of the witnesses, it clearly and convincingly

appears that there was a miscarriage of justice under the law."

R. 4:49-1(a). In applying this standard, the judge must evaluate

the evidence with an eye toward correcting "clear error or

mistake by the jury."

. The judge is

to "take into account, not only tangible factors relative to the

proofs as shown by the record, but also appropriate matters of

credibility, generally peculiarly within the jury's domain, and

the intangible 'feel of the case' which it has gained by

presiding over the trial." Kita v. Borough of Lindenwold,

(App. Div. 1997). Even then, we will not

reverse the judge's ruling on the motion unless "it clearly

appears that there was a miscarriage of justice under the law."

R. 2:10-1.

In ruling on the motion for a new trial, the judge

correctly observed that the jury was faced with the consequence

of two negligent acts committed by two separate individuals.

Tindall failed to keep sufficient distance from plaintiff's

10 A-2539-14T3 vehicle to avoid striking it from behind, and John Doe cut off

plaintiff's vehicle, Tindall's vehicle, and others, by crossing

the northbound lanes to make a left turn off the roadway. The

degree of responsibility between these two tortfeasors presented

a fact-sensitive question for the jury. In the jurors' eyes,

John Doe was far more blameworthy than Tindall. And the trial

judge observed the witnesses, and gained a feel of the case,

found no miscarriage of justice in what the jury concluded.

After close examination of the record in light of our standard

of review, we cannot conclude that it "clearly appears" the

verdict was "a miscarriage of justice." R. 2:10-1.

II

We find insufficient merit in plaintiff's contention that

the jury's award of damages, either separately or collectively

examined, constituted a miscarriage of justice to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E). We come

to the same conclusion with regard to Michelle's contention that

the jury's verdict on her claim for damages also constituted a

miscarriage of justice. We add only the following few brief

comments.

In his third point, plaintiff argues the trial judge erred

in barring admission of plaintiff's Thomas Jefferson University

Hospital records. In his brief, plaintiff did not refer us to

11 A-2539-14T3 where in the record this ruling was made and he did not identify

the particular records in question. Based on our own review of

the record, we assume plaintiff refers in this point to hospital

records he offered into evidence for the first time shortly

before summations. The record suggests that although medical

experts may have either alluded to or based their opinions on

their review of some hospital records, Tindall objected because

there were things mentioned in the records in question that had

not been addressed by any witness. The judge sustained that

objection.

We find no abuse of discretion in the judge's ruling. To

the extent the records contained information not previously

mentioned by a witness, the judge correctly excluded them. And

to the extent they were offered to corroborate an expert's

testimony, their exclusion was harmless.

Lastly, we reject the arguments of both plaintiff and his

ex-wife that the verdict on damages was against the weight of

the evidence and represented a miscarriage of justice. To be

sure, plaintiff has advocated his injuries were extensive and

that the jury was mistaken in rendering an award far short of

what he believes is fair and just. The fact of the matter is,

however, that the extent and significance of plaintiff's

injuries was much in dispute, and the jury was entitled to

12 A-2539-14T3 exercise its judgment in crediting or rejecting plaintiff's

claims. By the same token, the jury's decision to award nothing

to Michele likely was based in part on its view that plaintiff

was not injured as severely as he claimed. Also, Michele took

on no additional responsibilities due to the accident and, with

the deterioration of their marriage that started prior to the

accident, she incurred no loss as a result of the accident. We

have been presented with no principled reason for second-

guessing the jury's determinations on damages.

Affirmed.

13 A-2539-14T3 LEONE, J.A.D., concurring.

I concur in the result reached by my colleagues but write

separately to explain why, in my view, that result hews to the

statute and the governing precedent of our Supreme Court because

a fictitious party is a "party" under the Comparative Negligence

Act ("Act"). N.J.S.A. 2A:15-5.1 to -5.8.

The Act provides that the trier of fact shall determine

"[t]he extent, in the form of a percentage, of each party's

negligence or fault. The percentage of negligence or fault of

each party shall be based on 100% and the total of all

percentages of negligence or fault of all the parties to a suit

shall be 100%." N.J.S.A. 2A:15-5.2(a)(2) (emphasis added).

Our Supreme Court has held that the Act "restricts the

assessment of negligence to 'the parties to [the] suit.'" Ramos

v. Browning Ferris Indus., Inc.,

(1986) [Ramos

II] (quoting N.J.S.A. 2A:15-5.2(b) (1973)). In Ramos II, the

Court found that once an employer, immune under the Workers'

Compensation Act, "obtain[ed] its summary judgment of dismissal,

[it] was no longer a party to the suit, and the trial court

correctly decided not to submit [its] negligence to the jury."

Subsequent to Ramos II, the Court allowed the assessment of

the negligence of parties who could not be held liable for reasons other than immunity. Town of Kearny v. Brandt,

(2013) (holding that "when the claims against a defendant

are dismissed on statute of repose grounds, fault may be

apportioned to the dismissed defendant under the Comparative

Negligence Act"); Brodsky v. Grinnell Haulers, Inc.,

(2004) (holding that fault may be apportioned to "a

joint tortfeasor whose case is dismissed before trial because of

a bankruptcy discharge"); Young v. Latta,

(1991) (holding that a non-settling defendant may obtain an

allocation of fault to a settling defendant).

In those cases, the Court distinguished Ramos II because

"no cause of action in tort against the employer ever arose" as

the employer was completely immune and thus "not a 'party'

within the meaning of N.J.S.A. 2A:15-5.2."

; see

("an

employer cannot be a party to a negligence action"). The Court

reaffirmed that allocation of negligence was only available

against a "party" within the meaning of the Act. See

("the terms 'each party' and 'all the

parties to a suit,' as used in the Comparative Negligence Act,

encompass defendants who have been granted dismissals pursuant

to the statute of repose" (citation omitted));

("a defendant who has been dismissed from a case

2 A-2539-14T3 as a result of a bankruptcy discharge is still a 'party' to whom

a percentage of fault may be allocated"); see also

("[Young] implicitly recognized 'that a

defendant who settles and is dismissed from the action remains a

"party" to the case for the purpose of determining the non-

settling defendant's percentage of fault'" (quoting

)).

Thus, the issue before us is whether an unidentified person

named as a fictitious party is a "party" within the meaning of

the Act. In Bencivenga v. J.J.A.M.M., Inc.,

(App. Div.), certif. denied,

(1992), we correctly

recognized that the Act addresses "apportioning negligence among

parties to the lawsuit." Id. at 411; see Steele v. Kerrigan,

(1997) (noting "with approval the holding in

that the obligation to apportion fault

applies only to tortfeasors that are defendants in the

litigation"). However,

then ruled that "the

plain and ordinary meaning of the statutory language precludes

inclusion of a fictitiously named tortfeasor from the Act's

commands for apportioning fault."

. The

rationales for that ruling are flawed and out of step with

subsequent Supreme Court cases.

3 A-2539-14T3 First, Bencivenga cited the language in N.J.S.A. 2A:15-5.1

providing that contributory negligence does not bar recovery if

it "was not greater than the combined negligence of the persons

against whom recovery is sought."

. We then reasoned that "[a] fictitious person is

not someone against whom recovery can be sought because the

fictitious person rule, R. 4:26-4, and due process prevent entry

of judgment against a person designated by a fictitious name."

. However, a fictitious defendant literally is a

person against whom recovery is sought. It is true that

recovery cannot be obtained until the fictitious party is

identified and served. However, subsequent to Bencivenga, our

Supreme Court in Brodsky and Brandt permitted allocation of the

negligence of parties against whom recovery could not be

obtained. In any event, N.J.S.A. 2A:15-5.1 addresses

contributory negligence, not comparative negligence.

Second,

reasoned that "a fictitious

person is not a party to a suit. The person plaintiff

identifies as a fictitious defendant only becomes a party to the

suit when the defendant's true name is substituted in an amended

complaint and service is effected."

.

However, a fictitious defendant is listed as a party in the

complaint, and "process may issue against the defendant under a

4 A-2539-14T3 fictitious name." R. 4:26-4. Bencivenga cited Farrell v.

Votator Division of Chemetron Corp.,

(1973),

but Farrell ruled that substituting a fictitious defendant's

true name was not the addition of "a new party" but the renaming

of the existing fictitious party. Ibid.; see Stegmeier v. St.

Elizabeth Hosp.,

(App. Div. 1990).

Third, Bencivenga stated its "result is supported by our

holding in Ramos v. Browning Ferris Ind. of So. Jersey, Inc.,

(App. Div. 1984) [Ramos I], rev'd on other

grounds,

(1986) [Ramos II]."

. Bencivenga quoted Ramos I's reasoning

that "[a] truer verdict is more likely to be returned where the

fact finder's attention is ultimately fixed on the conduct of

the parties who will be affected by the verdict."

(quoting Ramos I, supra,

).

[T]here is no more reason to have a fact finder assign a percentage of negligence to someone who is not affected by the verdict than to assign a percentage of negligence to acts of God (such as the snow in this case) or a myriad of other causative factors that may have contributed to the happening of an accident.

[Ibid. (emphasis added) (quoting Ramos I, supra,

).]

5 A-2539-14T3 However, our "affected by the verdict" test in Ramos I was

not adopted by our Supreme Court in Ramos II.1 Moreover,

subsequent to Bencivenga, the Court in Brodsky and Brandt

permitted allocation of the negligence of parties who would not

be affected by the verdict, such as defendants protected by

bankruptcy or the statute of repose.

Thus, it appears Bencivenga is no longer good law on

whether apportionment of negligence is possible from a party

from whom recovery is not currently possible. While Brandt

mentioned Bencivenga in describing how "[t]he Appellate Division

has also considered the issue of apportionment in several

settings," Brandt did not involve fictitious defendants.

. Thus, we do not read

Brandt as adopting the holding in Bencivenga barring the

assessment of negligence of fictitious parties. Indeed, the

Court in Brandt announced four "guiding principles" for the

assessment of negligence, which support assessing the negligence

of a fictitious party.

at 102–03.

1 Ramos II, supra, did agree that "other causes, such as the snow that fell on the ground, might have contributed to the happening of the accident, yet the degree of fault to be attributed to those additional causes was not submitted to the jury."

(citing Ramos I, supra,

). Unlike snow and other acts of God, however, a fictitious driver can be sued, may be liable, and should be considered in assessing the comparative negligence of the persons who contributed to causing an accident.

6 A-2539-14T3 "First, the Comparative Negligence Act and the Joint

Tortfeasors Contribution Law promote 'the distribution of loss

"in proportion to the respective faults of the parties causing

that loss."'"

at 102 (quoting

). "Given the impact of a defendant's percentage of fault on

the scope of its liability, the statutes' objectives are best

served when the factfinder evaluates the fault of all

potentially responsible parties."

That principle plainly

supports assessing the negligence of a fictitious party who

helped cause the loss and is potentially responsible. Absent

allocation of negligence of the fictitious party, "a defendant

who is found to be one percent negligent would be held

responsible for ninety-nine percent of the negligence caused by

a joint tortfeasor." See

. The

Court "decline[d] to follow th[at] approach," and we should

likewise decline to impose 100% liability on defendant though

the jury found him only 3% liable and the fictitious driver 97%

liable. See

"Second, our courts have barred apportionment where, as a

matter of law, defendant could not under any circumstances be a

joint tortfeasor under N.J.S.A. 2A:53A-2."

. Unlike the employer "immunized from any action in

tort" in Ramos II, a fictitious party could be a joint

7 A-2539-14T3 tortfeasor under N.J.S.A. 2A:53A-2 if identified and served.

See ibid.2

"Third, apportionment of fault under the Comparative

Negligence Act and the Joint Tortfeasors Contribution Law does

not turn on whether the plaintiff is in a position to recover

damages from the defendant at issue."

. Thus, the

apportionment of negligence of a fictitious party is not

precluded because the plaintiff will not be in a position to

recover damages until it identifies and serves that party.

"Fourth, a claimant's failure to conform to a statutory

requirement for asserting claims against a given defendant does

not necessarily bar apportionment of that defendant's fault at

trial."

There is no statutory bar against asserting a

claim against a fictitious defendant; indeed, it is permitted by

Rule 4:26-4.

Thus, assessing the negligence of a fictitious party is

consistent with all four guiding principles articulated by our

Supreme Court in Brandt. "Applied here, these principles

require that we affirm the [Law] Division's decision on the

2 For purposes of N.J.S.A. 2A:53A-2, "the term 'joint tortfeasors' means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them." N.J.S.A. 2A:53A-1.

8 A-2539-14T3 issue of apportionment." See

21 N.J. at 103.

"The goals of our comparative fault statutory scheme are

advanced if the jury assesses the [fictitious] defendant['s]

potential fault in this case" because such assessment "promotes

fair allocation of responsibility and avoids creating an

incentive for a plaintiff to strategically target only one of a

range of culpable defendants." See id. at 104.

Indeed, as the majority opinion points out, plaintiffs have

the ability to indirectly obtain a measure of compensation based

on the negligence of the fictitious driver through uninsured

motorist (UM) insurance, but chose not to complete that process

before going to trial against defendant. Cf. Cockerline v.

Menendez,

(App. Div. 2010)

(approving apportionment of negligence of a fictitious driver

after the plaintiff recovered for his negligence under UM

insurance). Assessing the negligence of the fictitious driver

prevents plaintiffs from strategically waiting to proceed

against UM insurance, allocates fault based on actual negligence

of the various drivers, and avoids double recovery by

plaintiffs.

For these reasons, the trial court's apportionment of

negligence was proper and should be affirmed.

9 A-2539-14T3