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Greczyn v. Colgate-Palmolive3/21/2005
ured.
Id. at 694. After several years of discovery and the expiration of the repose period, plaintiff learned the identity of the emergency-room doctor who had provided treatment. She sought to add the doctor's name the following day. Id. at 696. The trial court granted summary judgment to the physician, but the Alabama Supreme Court reversed, allowing plaintiff to employ fictitious party practice and amend the complaint after expiration of the period of repose. Id. at 697-98.
VII.
We are satisfied that the Alabama approach, allowing the use of fictitious-party practice in these circumstances, is sound. First, N.J.S.A. 2A:14-1.1 does not specifically preclude importation of fictitious-party practice, thus rendering it open to interpretation on that issue. Second, the facts presented are exactly what fictitious-party practice was developed for to protect a diligent plaintiff who is aware of a cause of action against a defendant but not the defendant's name, at the point at which the statute of limitations is about to run.
Kling Lindquist properly underscores that N.J.S.A. 2A:14-1.1 is not a statute of limitations but one of repose. However, that distinction does not end the inquiry. Even statutes of repose, also termed "substantive" statutes (when "the time in which the action must be commenced expires, both the remedy and the right are barred[,]" LaFage v. Jani, 166 N.J. 412, 421-22 (2001)), "need not necessarily be construed rigidly. Negron [v. Llarena, 156 N.J. 296, 304 (1988)] confirmed that our 'approach to substantive statutes of limitations has evolved to one that recognizes that their application depends on statutory interpretation focusing on legislative intent and purposes.'" LaFage, supra, 166 N.J. at 422.
Plainly, the Legislature intended to limit the time within which a cause of action may arise against an architect or builder to ten years from the date construction is substantially completed. Thus, injuries sustained or suits filed after the ten-year period are barred. Here, Greczyn's injury arose, and the complaint was filed, within the prescribed ten-year window, under the fictitious-party practice rule. The question is whether allowing that procedure will violate the Legislative intent underlying N.J.S.A. 2A:14-1.1. Negron, supra, 156 N.J. at 304. We think not.
Contrary to Kling Lindquist's view, allowing fictitious party practice in this context will not subject an architect or a builder to liability for life or even to indefinite vulnerability for a structural defect. Two conditions preclude such endless exposure. The first is the filing within ten years, which is the statutorily authorized period, and the second is the requirement of due diligence. With respect to the former, a plaintiff who is injured or who files suit after ten years is simply out of time. Regarding the latter, a plaintiff who is injured and files within ten years but is dilatory in seeking the fictitious party's name is likewise barred. Where the elements of timely filing and diligence are satisfied, the potential exposure of a builder or designer is finite and circumscribed, thus meeting the legislative intent underlying N.J.S.A. 2A:14-1.1. Only this reading reconciles the statute and the rule.
VIII.
We therefore reverse the judgment of the Appellate Division and remand the case to the trial court for disposition of the question of Greczyn's diligence, an issue that was not reached originally because the court declined to recognize the applicability of fictitious-party practice in these circumstances. This ruling makes it unnecessary for us to address Greczyn's "substantial compliance" argument.
CHIEF JUSTICE
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