SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
Samuel Mejia v. Quest Diagnostics, Inc. (A-88-18) (082739)
Argued November 6, 2019 – Decided March 16, 2020
FERNANDEZ-VINA, J., writing for the Court.
In this medical malpractice case, the Court must decide whether third-party
defendant Dr. Jacinto Fernandez, facing only claims for contribution and common-law
indemnification from an original defendant that did not file an affidavit of merit against
him, must participate in the trial establishing the underlying liability.
Plaintiff Samuel Mejia, individually and as administrator of the estate of his late
wife, Tania, filed a complaint against Quest Diagnostics, Inc., and two of its employees
(the Quest defendants) for failure to detect Tania’s cervical cancer. The Quest defendants
then filed third-party claims against Fernandez. Plaintiff did not file an affirmative claim
against Fernandez.
Fernandez filed an answer and demanded that Quest serve an affidavit of merit.
The Quest defendants moved for an order declaring that they are not required to serve an
affidavit of merit against Fernandez. The trial court granted that motion, which was
unopposed. Fernandez never filed a motion for reconsideration.
Fernandez filed a motion seeking to be treated “as the defendants were treated in”
Jones v. Morey’s Pier, Inc., 230 N.J. 142 (2017), and Burt v. West Jersey Health
Systems, 339 N.J. Super. 296 (App. Div. 2001), cases in which third-party defendants
were relieved from participating at trial, yet the remaining defendants were entitled to
present evidence of their negligence. Fernandez argued that since plaintiff never sued
him, plaintiff cannot recover from him. Fernandez thus sought to insulate himself from
participating at trial, and to have any liability apportioned to him reduced from plaintiff’s
recovery.
The trial court denied Fernandez’s motion, concluding that the dismissed
defendants in Jones and Burt “were dismissed meritoriously” and that “[t]here is no basis
for dismissal of movant here.” The Appellate Division affirmed the trial court’s order.
Fernandez filed a motion for leave to file an interlocutory appeal, which the Court
granted. 238 N.J. 441 (2019).
1
HELD: Third-party defendants are subject to the contribution claims filed against them
by joint tortfeasors, unless there exists a right to a dismissal of the claims against them.
Here, Fernandez fails to present a meritorious right to dismissal. Fernandez is therefore
an active third-party defendant who must participate at trial.
1. The Comparative Negligence Act provides that the recovering party “may recover . . .
[t]he full amount of the damages from any party determined by the trier of fact to be 60%
or more responsible for the total damages.” N.J.S.A. 2A:15-5.3(a). In that instance, the
party that is “compelled to pay more than the percentage of damages corresponding to the
jury’s allocation of fault to that defendant ordinarily has a remedy under the Comparative
Negligence Act: a claim for ‘contribution from the other joint tortfeasors.’” Jones, 230
N.J. at 159-60 (quoting N.J.S.A. 2A:15-5.3(e)). A defendant may file a claim for
contribution against a third party that was not sued by the plaintiff. Although an active
third-party defendant must participate in the litigation and is subject to liability in
contribution, a plaintiff cannot recover directly from a party against whom he never files
an affirmative claim. Thus, a third-party defendant who is never sued directly by the
plaintiff is potentially liable only to the third-party plaintiff that filed the claim for
contribution against him, if and after the third-party plaintiff “is compelled to pay more
than his percentage share,” N.J.S.A. 2A:15-5.3(e), and the trier of fact accords a
percentage of fault against the third-party defendant, N.J.S.A. 2A:15-5.2(a)(2). In that
instance, the third-party plaintiff is entitled to recover contribution from the third-party
defendant in the amount of the third-party defendant’s share in the judgment. (pp. 13-17)
2. Pursuant to the Quest defendants’ third-party complaint claim for contribution,
Fernandez is an active party in the litigation as a joint tortfeasor, regardless of plaintiff’s
decision not to file an affirmative claim against him. While plaintiff cannot recover from
Fernandez directly, fault can be allocated to Fernandez. The Court details how the
allocation of fault to Fernandez could affect plaintiff’s recovery under provisions of
N.J.S.A. 2A:15-5.3. The fact that plaintiff cannot recover from Fernandez directly does
not mean that his participation is not necessary to enable the trier of fact to allocate fault.
The trial court properly denied his motion seeking dismissal from the trial. (pp. 17-18)
3. The Court rejects Fernandez’s reliance on Jones and Burt. In Jones, the relevant
defendant was a public entity dismissed pursuant to a statutory time bar not applicable
here. In Burt, one of two defendants against which a plaintiff brought suit was dismissed
from the case because the plaintiff failed to serve on it an affidavit of merit. The
Appellate Division stressed that the Affidavit of Merit Act, “by its very terms, applies to
plaintiffs, not cross-claimants,” 339 N.J. Super. at 305, and ruled that the cross-claimant
defendant could pursue its claim for contribution against the dismissed defendant without
having to comply with affidavit-of-merit requirements. Significantly, the appellate court
“express[ed] no opinion as to whether a defendant who seeks to implead a new defendant
by way of third-party complaint . . . must file an [a]ffidavit of [m]erit.” Id. at 305 n.2
(emphasis added). The Court notes that the Appellate Division held in another case that
2
no affidavit of merit is required when “a defendant subject to the [a]ffidavit of [m]erit
statute asserts a third-party claim in the nature of contribution or joint tortfeasor liability
as against another professional also subject to the statute.” Diocese of Metuchen v.
Prisco & Edwards, AIA, 374 N.J. Super. 409, 418 (App. Div. 2005). Here, however, the
Court does not decide whether the requirements of the Affidavit of Merit Act were met
because Fernandez did not oppose the Quest defendant’s motion for a declaration that no
affidavit of merit was needed, nor did he file a motion for reconsideration or challenge
the trial court’s grant of that motion on appeal. The Court therefore declines to address
whether a third-party plaintiff is required to serve an affidavit of merit against a third-
party defendant it brings into a lawsuit pursuant to Rule 4:8-1. (pp. 19-21)
AFFIRMED. The matter is REMANDED for further proceedings.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-VINA’s opinion.
3
SUPREME COURT OF NEW JERSEY
A-88 September Term 2018
082739
Samuel Mejia, Individually
and as Administrator and Administrator
ad Prosequendum of the
Estate of Tania Mejia,
Plaintiffs-Respondents,
v.
Quest Diagnostics, Inc.,
Teresita Lanio, Linda Pham,
Simon B. Santos, M.D., and
Simon B. Santos Medical Group, LLC,
Defendants.
Quest Diagnostics, Inc.,
Teresita Lanio and
Linda Pham,
Third-Party Plaintiffs,
v.
Jacinto Fernandez, M.D.,
Third-Party Defendant-Appellant,
and
Simon B. Santos, M.D.,
Third-Party Defendant.
1
Samuel Mejia, Individually
and as Administrator and Administrator
ad Prosequendum of the
Estate of Tania Mejia,
Plaintiffs-Respondents,
v.
Quest Diagnostics, Inc.,
Teresita Lanio, Linda Pham,
Simon B. Santos, M.D., and
Simon B. Santos Medical Group, LLC,
Defendants.
Quest Diagnostics, Inc.,
Teresita Lanio, and
Linda Pham,
Third-Party Plaintiffs,
v.
Jacinto Fernandez, M.D.,
and Simon B. Santos, M.D.,
Third-Party Defendants.
On appeal from the Superior Court,
Appellate Division.
Argued Decided
November 6, 2019 March 16, 2020
2
William L. Brennan argued the cause for appellant (The
Law Office of William L. Brennan, attorneys; William L.
Brennan, of counsel and on the brief, and John G.
Kilbride, Mary Grace Callahan, and Abbey True Harris,
on the brief).
Brian E. Mahoney argued the cause for respondents
(Blume, Forte, Fried, Zerres & Molinari, attorneys; Carol
L. Forte, of counsel, and Brian E. Mahoney, on the
briefs).
Eric S. Poe argued the cause for amicus curiae New
Jersey Physicians United Reciprocal Exchange (Eric S.
Poe, attorneys; Eric S. Poe, of counsel and on the brief).
Anthony Argiropoulos argued the cause for amicus curiae
New Jersey Doctor-Patient Alliance (Epstein Becker &
Green, attorneys; Anthony Argiropoulos, of counsel and
on the brief).
E. Drew Britcher argued the cause for amicus curiae New
Jersey Association for Justice (Britcher Leone, attorneys;
E. Drew Britcher, of counsel and on the brief, and Jessica
E. Choper, on the brief).
Philip S. Goldberg submitted a brief of behalf of amici
curiae American Medical Association and Medical
Society of New Jersey (Shook, Hardy & Bacon,
attorneys; Philip S. Goldberg, on the brief).
JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.
In this case, the Court must decide whether a third-party defendant,
facing only claims for contribution and common-law indemnification from an
3
original defendant that did not file an affidavit of merit against him, must
participate in the trial establishing the underlying liability.
The instant matter arises out of a medical malpractice action based on
the failure to detect decedent Tania Mejia’s cervical cancer via PAP smears.
Plaintiff Samuel Mejia, individually and as administrator of the estate of his
late wife, filed a complaint against Quest Diagnostics, Inc., and two of its
employees (the Quest defendants). The Quest defendants then filed third -party
claims for contribution and indemnification against Dr. Jacinto Fernandez,
Tania’s gynecologist, and Dr. Simon Santos, her family practitioner. Plaintiff
filed an affirmative claim against Santos but never filed a claim against
Fernandez. The issue in this case arises out of plaintiff’s decision not to file a
claim against defendant Fernandez.
Shortly before trial, Fernandez filed a motion seeking to be treated “as
the defendants were treated in” Jones v. Morey’s Pier, Inc., 230 N.J. 142
(2017), and Burt v. West Jersey Health Systems, 339 N.J. Super. 296 (App.
Div. 2001). In Jones, a third-party defendant was barred from the suit pursuant
to the notice-of-claims provision of the Tort Claims Act, N.J.S.A. 59:8-8. 230
N.J. at 148-49. In Burt, a defendant was dismissed from the suit because of
the plaintiff’s failure to timely serve an affidavit of merit, N.J.S.A. 2A:53A-
27. 339 N.J. Super. at 301. In those cases, third-party defendants were
4
relieved from participating at trial, yet the remaining defendants were entitled
to present evidence of their negligence. Jones, 230 N.J. at 169; Burt, 339 N.J.
Super. at 308. In Jones, we determined that under those circumstances, “[i]f
the jury allocates a percentage of fault to the [relieved defendant], the trial
court shall mold the judgment to reduce the [remaining] defendants’ liability to
[the] plaintiffs in accordance with the percentage of fault allocated to the
[relieved defendant].” 230 N.J. at 170 (citing N.J.S.A. 2A:15-5.2(d)).
In support of his motion, Fernandez likened his right to dismissal to the
dismissed defendant in Burt, because an affidavit of merit was never served on
him by any party. However, the trial court granted an unopposed motion from
the Quest defendants requesting the court “declar[e] that [the Quest
d]efendants are not required to serve an [a]ffidavit of [m]erit with respect to
their third[-]party claims . . . against [defendant] Fernandez.” The trial court
denied Fernandez’s motion, concluding that the dismissed defendants in Jones
and Burt “were dismissed meritoriously” and that “[t]here is no basis for
dismissal of movant here.” The Appellate Division affirmed the trial court’s
judgment in an unpublished opinion.
We agree and affirm. Third-party defendants are subject to the
contribution claims filed against them by joint tortfeasors, unless there exi sts a
right to a dismissal of the claims against them. Here, Fernandez fails to
5
present a meritorious right to dismissal. Fernandez is therefore an active third-
party defendant who must participate at trial.
I.
A.
During the summer of 2010, Tania visited Santos, a family practitioner,
complaining of stomach pain, headaches, vomiting, leg and toe numbness,
insomnia, and dizziness. A computed tomography (CT) scan revealed a
potential mass in Tania’s uterus; however, there is no evidence that Dr. Santos
reviewed the CT scan results with her, nor is there evidence that he sent those
results to her gynecologist, Fernandez.
In December 2010, Tania saw Fernandez, her gynecologist since 1995,
for a regular examination. A PAP smear was performed, and the results were
reported as normal by the Quest defendants. One year later, Tania again
visited Fernandez, complaining “of cramping with passage of heavy clots and
vaginal discharge.” Another PAP smear was performed, and the results were
reported as normal by the Quest defendants.
However, in June 2012, Fernandez diagnosed Tania with cervical cancer.
Approximately six months later, she died at the age of thirty-nine. She was
survived by plaintiff and her fifteen-year-old daughter.
6
B.
1.
In June 2014, plaintiff filed his initial complaint and served an affidavit
of merit against the Quest defendants, alleging they failed to detect Tania’s
cancer via the PAP smears. One year later, pursuant to leave granted, the
Quest defendants filed an amended answer and third-party complaint against
Fernandez, seeking contribution and common-law indemnification. Fernandez
filed an answer that included counterclaims for contribution and
indemnification against the Quest defendants and demanded that Quest serve
an affidavit of merit.
Shortly thereafter, all parties appeared for a case management
conference, where Fernandez’s counsel again demanded that the Quest
defendants serve an affidavit of merit against Fernandez. The Quest
defendants then filed a motion “for an [o]rder declaring that [the Quest
defendants] are not required to serve an [a]ffidavit of [m]erit with respect to
their third[-]party claims . . . against [defendant] Fernandez.” On September 4,
2015, the trial court issued an order granting the Quest defendants’ motion “in
its entirety.” The order was granted “unopposed.” Fernandez never filed a
motion for reconsideration. Although Quest never served an affidavit of merit,
7
it later served an expert report stating that Fernandez deviated from the
standard of care.
In March 2016, the Quest defendants filed an amended third-party
complaint against Santos, seeking contribution and indemnification.
Fernandez filed an answer, raising counterclaims for contribution and
indemnification against the Quest defendants and Santos. Santos then filed an
answer that included counterclaims against both the Quest defendants and
Fernandez.
Plaintiff filed an amended complaint to include direct claims and an
affidavit of merit against Santos and his medical group. Plaintiff did not file
suit against Fernandez and asserts that his reviewing gynecologist expert
“disclosed no basis for the assertion of . . . a claim” against Fernandez.
Plaintiff asserts his “attorneys were ‘duty-bound’ by ethics rules, the
proscription of frivolous claims[,] and the requirements of medical malpractice
law to refrain from filing such a claim.”
2.
In April 2018, Fernandez filed a motion seeking to be treated “as the
defendants were treated in” Jones and Burt. He argued that since plaintiff
never sued Fernandez, he cannot recover from Fernandez. Relying on Jones
and Burt, Fernandez sought to insulate himself from participating at trial, and
8
to have any liability apportioned to him reduced from plaintiff’s recovery.
Plaintiff opposed the motion, and the trial judge denied the motion in a court
order. In a brief accompanying statement of reasons, the judge ruled that the
excused defendants “in Jones and Burt were dismissed meritoriously,” and
“[t]here is no basis for [the] dismissal of movant here.”
The Appellate Division granted Fernandez’s motion for leave to appeal
the trial court order. In an unpublished decision, the court affirmed the trial
court order denying his motion to be treated like the defendants in Jones and
Burt.
The Appellate Division distinguished Jones and Burt on the ground that
“[t]hose cases concerned third-party defendants previously dismissed on the
merits,” whereas here, Fernandez “remains an active party, not a third-party
defendant dismissed on the merits.” The court also rejected Fernandez’s
argument that since he was not sued by plaintiff directly, he is not subject to
liability. The court found that Fernandez “assumes that he faces no potential
liability to the Quest defendants or [defendant] Santos on their contribution
claims for damages awarded to plaintiff.” Pursuant to the Comparative
Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8, and the Joint Tortfeasors
Contribution Law, N.J.S.A. 2A:53A-1 to -5, the Appellate Division determined
that
9
[i]f the jury should adjudge either the Quest defendants
or Dr. Santos to be sixty percent or more at fault, and
also adjudge a percentage of fault against Dr.
Fernandez, then in that circumstance, Dr. Fernandez
would be financially responsible for damages on the
contribution claim of the co-defendant adjudged sixty
percent or more at fault.
The appellate court further found that even if it “were to accept the
premise of Dr. Fernandez that he cannot be financially responsible for
damages . . . it would unfairly prejudice plaintiff, this late in the proceedings,
to require plaintiff to present a defense of Dr. Fernandez.” At the time
Fernandez filed this motion, “the case was nearly four years old, after the entry
of nine case management orders and the expiration of expert witness
deadlines.” The court observed that Fernandez “previously retained an expert
on his own behalf . . . and served a report from him.”
Fernandez filed a motion for leave to file an interlocutory appeal with
this Court, which we granted. 238 N.J. 441 (2019). We also granted amicus
curiae status to the New Jersey Association for Justice (NJAJ), the American
Medical Association and Medical Society of New Jersey (collectively, AMA),
the New Jersey Physicians United Reciprocal Exchange (NJ PURE), and the
New Jersey Doctor-Patient Alliance (NJDPA).
10
II.
A.
Fernandez contends he should be treated like the excused defendants in
Burt and Jones -- that is, he should be dismissed from the action, should not
have to participate at trial, and, if the jury allocates a percentage of fault
against him, the trial court should mold the judgment to reduce the remaining
defendants’ liability to plaintiff in accordance with the percentage of fault
allocated to him. Fernandez asserts this result is warranted because plaintiff
never sued him directly, yet plaintiff is still “in the position to recover 100% of
his damages.”
Fernandez complains he was never served an affidavit of merit, and
therefore the requirements set forth in the Affidavit of Merit Act, N.J.S.A.
2A:53A-27 to -29, have been circumvented in this case. He points to the
Appellate Division’s statement in Burt that “the ultimate question” was “the
effect of [the] plaintiff’s failure to comply with the Affidavit of Merit Act
upon the [remaining] defendants’ right to contribution.” (citing 339 N.J.
Super. at 306-07). Because he, like the defendant in Burt, was never served an
affidavit of merit, Fernandez contends there is a split between the Appellate
Division’s decisions in this case and in Burt. Amici NJ PURE, the NJDPA,
11
and the AMA likewise ask this Court to rule in favor of Fernandez pursuant to
the Affidavit of Merit Act.
B.
Plaintiff contends that the Quest defendants and Santos have viable
claims for contribution and indemnification against Fernandez. Plaintiff
asserts that Burt and Jones resulted from procedural mischief or neglect on the
part of the plaintiffs, who were then penalized. Here, plaintiff claims he has
“done nothing wrong.” Thus, plaintiff contends the appellate court “did not
depart from the lessons of Burt and Jones,” but rather “strictly adhered to those
cases” and “found that the facts at issue in the current case were readily
distinguishable.”
The NJAJ, appearing as amicus curiae, asks this Court to find that
Fernandez remains an active defendant and therefore the Appellate Division
correctly found this case distinguishable from Burt and Jones. The NJAJ
submits “Fernandez’s argument is flawed because he overlooks the fact that he
was never dismissed from this case.”
III.
“When no issue of fact exists, and only a question of law remains, this
Court affords no special deference to the legal determinations of the trial
court.” Cypress Point Condo. Ass’n, Inc. v. Adria Towers, L.L.C., 226 N.J.
12
403, 415 (2016) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995)); see also Ferrante v. N.J. Mfrs. Ins. Grp., 232 N.J.
460, 468 (2018) (“Absent factual questions, this Court reviews legal
determinations de novo.”).
IV.
The legal question before us is whether a third-party defendant must
participate in a trial to establish underlying liability under the circumstances
presented here or whether he should be dismissed from the case because no
direct claim was asserted against him and he was not served with an affidavit
of merit. To answer that question, we review the nature of claims for
contribution.
A.
Claims for contribution arise from “the statutory scheme for the
allocation of fault to joint tortfeasors, prescribed by the Comparative
Negligence Act and Joint Tortfeasors Contribution Law.” Jones, 230 N.J. at
158. The Comparative Negligence Act provides that in all negligence actions
in which the question of liability is in dispute, the trier of fact makes two
determinations:
(1) The amount of damages which would be
recoverable by the injured party regardless of any
consideration of negligence or fault, that is, the full
value of the injured party’s damages.
13
(2) The 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).]
The judge then molds the judgment in accordance with the jury’s
allocation of fault to all parties, whose liability is limited in accordance with
each party’s percentage of fault. See N.J.S.A. 2A:15-5.2(d); Ginsberg v. Quest
Diagnostics, Inc., 227 N.J. 7, 20-21 (2016). However, the recovering party
“may recover . . . [t]he full amount of the damages from any party determined
by the trier of fact to be 60% or more responsible for the total damages.”
N.J.S.A. 2A:15-5.3(a). In that instance, the party that is “compelled to pay
more than the percentage of damages corresponding to the jury’s allocation of
fault to that defendant ordinarily has a remedy under the Comparative
Negligence Act: a claim for ‘contribution from the other joint tortfeasors.’”
Jones, 230 N.J. at 159-60 (quoting N.J.S.A. 2A:15-5.3(e)). The claim is
governed by the Joint Tortfeasors Contribution Law, which provides that when
“a joint tortfeasor pays the judgment ‘in whole or in part,’ that party shall be
entitled to recover contribution from other joint tortfeasors ‘for the excess so
paid over his pro rata share.’” Id. at 160 (quoting N.J.S.A. 2A:53A-3).
14
As to those parties “determined by the trier of fact to be less than 60%
responsible for the total damages,” their liability is limited to “[o]nly that
percentage of the damages directly attributable to [their] negligence or fault.”
N.J.S.A. 2A:15-5.3(c).
Defendants can pursue claims for contribution by bringing third parties
into a suit pursuant to Rule 4:8-1(a), which provides that “[a] defendant, as
third-party plaintiff, may file and serve a . . . third-party complaint . . . upon a
person not a party to the action who . . . may be liable to defendant for al l or
part of the plaintiff’s claim against defendant.” Thus, a defendant may file a
claim for contribution against a third party that was not sued by the plaintiff.
In Holloway v. State, 125 N.J. 386, 402 (1991), this Court determined
that contribution should not depend upon whether a defendant is sued as a
third-party defendant pursuant to Rule 4:8-1, or as a direct defendant subject to
a cross-claim for contribution pursuant to Rule 4:7-5(a).
[T]he procedural status of a defendant-in-contribution
-- whether as a third-party defendant-in-contribution in
a separate action, a third-party defendant-in-
contribution in the action establishing the underlying
liability, or as a direct defendant and cross-claim
defendant-in-contribution in the action establishing the
underlying liability, neither alters nor modifies the rule
that the injured party’s negligence should be compared
with that of each joint tortfeasor. How joint tortfeasors
arrive at the litigation should not affect the substantive
right of contribution. That point is confirmed by [Lee’s
Hawaiian Islanders, Inc. v. Safety First Products, Inc.,
15
195 N.J. Super. 493, 506 (App. Div. 1984)]: “[I]f
plaintiff chooses to sue only one joint tortfeasor and
that joint tortfeasor is consequently compelled to bring
his own contribution action against other tortfeasors, he
should in the contribution action be both entitled to and
burdened by the same contribution consequences which
would have obtained had plaintiff himself sued both
tortfeasors.”
[Holloway, 125 N.J. at 402 (citations omitted).]
In Lee’s Hawaiian, the Appellate Division found that a trial of all
parties, including a third-party defendant that the plaintiff never sued, was
necessary for the trier of fact to determine the allocation of percentage of
negligence to each defendant. 195 N.J. Super. at 497-98, 506. After a kitchen
fire in its restaurant, the plaintiff sued one defendant, “alleg[ing] that the fire
suppression system failed to operate properly.” Id. at 497. The defendant
“then filed two separate third-party complaints . . . each of which sought
contribution or, in the alternative, indemnification from the third-party
defendants.” Ibid. The plaintiff then “amended its complaint to assert an
affirmative claim against” only one of the third-party defendants, yet the
appellate court determined that a trial including all the parties was necessary.
Ibid.; see id. at 506 (“[T]he percentage allocation among tortfeasors dictated
by the Comparative Negligence Act applies where, as here, contribution is
claimed by a defendant in a separate action. Clearly a defendant’s right to
16
contribution from a joint tortfeasor cannot be controlled by plaintiff’s
unilateral decision not to join all tortfeasors.”).
Although an active third-party defendant must participate in the
litigation and is subject to liability in contribution, a plaintiff cannot recover
directly from a party against whom he never files an affirmative claim. See
Town of Kearny v. Brandt, 214 N.J. 76, 103 (2013); Sattelberger v. Telep, 14
N.J. 353, 363 (1954). Thus, a third-party defendant who is never sued directly
by the plaintiff is potentially liable only to the third-party plaintiff that filed
the claim for contribution against him, if and after the third-party plaintiff “is
compelled to pay more than his percentage share,” N.J.S.A. 2A:15-5.3(e), and
the trier of fact accords a percentage of fault against the third-party defendant,
N.J.S.A. 2A:15-5.2(a)(2). In that instance, the third-party plaintiff is entitled
to recover contribution from the third-party defendant in the amount of the
third-party defendant’s share in the judgment. See N.J.S.A. 2A:53A-3; Jones,
230 N.J. at 160.
B.
Here, it is undisputed that the Quest defendants properly filed a third -
party complaint against Fernandez, seeking contribution and indemnification.
Pursuant to that claim for contribution, Fernandez is an active party in the
litigation as a joint tortfeasor, regardless of plaintiff’s decision not to file an
17
affirmative claim against Fernandez. See Holloway, 125 N.J. at 402.
Therefore, a trial is necessary for the trier of fact to determine the allocation of
percentage of negligence to each defendant.
While plaintiff cannot recover from Fernandez directly, see Sattelberger,
14 N.J. at 363, we agree with the Appellate Division that if the trier of fact
determines defendants Quest or Santos to be sixty percent or more at fault,
then plaintiff can recover the full amount of damages from that party, N.J.S.A.
2A:15-5.3(a), and if Fernandez is found to be between one and forty percent at
fault, then he would be liable for his percentage of fault in contribution to the
party that paid the full amount of damages to plaintiff, N.J.S.A. 2A:15-5.3(e).
If Fernandez is determined by the trier of fact to be sixty percent or more at
fault, then plaintiff’s recovery will be limited to the remaining percentages of
fault allocated to defendants Quest and Santos. And if Fernandez is
determined to be 100% at fault, plaintiff recovers nothing.
As the Appellate Division determined in Lee’s Hawaiian, however, the
fact that plaintiff cannot recover from Fernandez directly does not mean that
his participation is not necessary to enable the trier of fact to allocate fault.
See 195 N.J. Super. at 497-98, 506. We therefore hold that the trial court
properly denied Fernandez’s motion seeking dismissal from the trial.
18
C.
In so holding, we reject Fernandez’s reliance on Jones and Burt. In
Jones, the relevant defendant was a public entity dismissed pursuant to a
statutory time bar not applicable here. See N.J.S.A. 59:8-8; Jones, 230 N.J. at
164. In Burt, one of two defendants against which a plaintiff brought suit was
dismissed from the case because the plaintiff failed to serve on it an affidavit
of merit. See 339 N.J. Super. at 301. The other defendant had filed a cross-
claim against the dismissed defendant seeking contribution or indemnity. Id.
at 302. The Appellate Division held that the other defendant’s claim should
not be vitiated by the plaintiff’s failure to comply with the Affidavit of Merit
Act. Id. at 304. The appellate court therefore held that fault should be
allocated to the dismissed defendant even though the plaintiff could not
recover from that defendant. Id. at 307. As a result, only the plaintiff was
penalized for her failure to comply with the Affidavit of Merit Act. Fernandez
argues that the same dismissal with fault allocation is warranted here.
The Affidavit of Merit Act, N.J.S.A. 2A:53A-27 to -29, mandates that a
“plaintiff . . . provide each defendant with an affidavit” of merit under certain
circumstances. N.J.S.A. 2A:53A-27. The Act provides that
[i]n any action for damages for personal injuries . . .
resulting from an alleged act of malpractice or
negligence by a licensed person in his profession . . .
the plaintiff shall, within 60 days following the date of
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filing of the answer to the complaint by the defendant,
provide each defendant with an affidavit of an
appropriate licensed person that there exists a
reasonable probability that the care . . . exercised . . . in
the treatment . . . fell outside acceptable professional
. . . standards or treatment practices.
[N.J.S.A. 2A:53A-27 (emphases added).]
“If the plaintiff fails to provide an affidavit [of merit] . . . , it shall be deemed a
failure to state a cause of action.” N.J.S.A. 2A:53A-29 (emphasis added). In
Burt, the Appellate Division stressed that the Affidavit of Merit Act, “by its
very terms, applies to plaintiffs, not cross-claimants,” 339 N.J. Super. at 305,
and ruled that the cross-claimant defendant could pursue its claim for
contribution against the dismissed defendant “without having to comply with
affidavit-of-merit requirements,” Pressler & Verniero, Current N.J. Court
Rules, cmt. 2.3 on R. 4:7-5 (2020).
Significantly, the appellate court “express[ed] no opinion as to whether a
defendant who seeks to implead a new defendant by way of third-party
complaint pursuant to [Rule] 4:8-1(a), must file an [a]ffidavit of [m]erit.”
Burt, 339 N.J. Super. at 305 n.2 (emphasis added). However, in Diocese of
Metuchen v. Prisco & Edwards, AIA, the Appellate Division ruled that “where
a defendant subject to the [a]ffidavit of [m]erit statute asserts a third -party
claim in the nature of contribution or joint tortfeasor liability as against
another professional also subject to the statute, no [a]ffidavit of [m]erit is
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required.” 374 N.J. Super. 409, 418 (App. Div. 2005). The basis for that
court’s reasoning rested on the proposition that a third-party plaintiff’s claim
for contribution against a third-party defendant is derivative of the original
plaintiff’s claim against the third-party plaintiff. Id. at 416.
We need not decide the derivative claim issue and whether the
requirements of the Affidavit of Merit Act were met in this case. Plaintiff
filed affirmative claims against defendants Quest and Santos, and properly
served each with an affidavit of merit. The Quest defendants filed their claim
for contribution against Fernandez, and thereafter filed a motion “for an
[o]rder declaring that [they] are not required to serve an [a]ffidavit of [m]erit
with respect to their third[-]party claims . . . against Dr. Fernandez.”
Fernandez did not oppose the motion, which the trial court granted. Fernandez
did not file a motion for reconsideration, nor does he challenge the grant in
this appeal. We therefore decline to address whether a third-party plaintiff is
required to serve an affidavit of merit against a third-party defendant it brings
into a lawsuit pursuant to Rule 4:8-1.
V.
For the reasons set forth, the judgment of the Appellate Division is
affirmed.
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CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-
VINA’s opinion.
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