ANTHONY TONIC VS. AMERICAN CASUALTY CO., i/p/a CNA INS. CO. (A-3383-07T1)05-27-10
Plaintiff was injured in a hit-and-run accident. He was
able to identify the van involved and its owner, who on the day
of the accident was in Florida on vacation. He was unable to
ascertain the identity of the driver of the van. Plaintiff
commenced suit against the owner and "John Doe" drivers, and
also named defendant UM/UIM insurer in the complaint. Discovery
ensued with defendant/insurer's active participation.
Plaintiff settled his claim with the owner of the van's
insurer for its policy limits and served a Longworth notice on
defendant. Defendant moved for summary judgment, arguing that
its subrogation rights had been impaired because plaintiff
failed to amend his complaint and substitute several individuals
- friends and family of the van's owner - as defendants in place
of the fictitious John Does.
We reversed the grant of summary judgment, concluding that
defendant had not established as a matter of law that plaintiff
had failed to make reasonable efforts to identify the driver of
the van, and that defendant had also failed to establish as a
matter of law that its subrogation rights had been prejudiced.
