On Appeal from the United States District Court for the District of New Jersey (D.C. No. 82-3856).
BEFORE ADAMS, HIGGINBOTHAM and GARTH, Circuit Judges.
This appeal presents a question as to whether, under the facts of this case, the New Jersey Supreme Court would hold that a defendant in a tort action such as this should be estopped from pleading a statute of limitations defense. Because the defendant, Brown Transport Corporation (Brown Transport), has argued that it is entitled to summary judgment as a matter of law, we present all disputed facts in the light most favorable to the plaintiff, Winfield Knight. Our standard of review is plenary.
On November 18, 1978, Winfield Knight and Michael Miller were both injured while on duty in the Army Reserve. The army truck in which they were riding collided with a truck operated by John Farina. The truck bore the legend "Brown Transport Corp. - Elberton, Georgia."
Jeffrey Dragon was original counsel for Knight. George O'Neill, counsel for Knight in this appeal, was original counsel for Miller. Each attorney was separately retained to investigate and prosecute claims against those responsible for the accident in which their respective clients were injured. From the military authorities, each attorney obtained an accident report prepared by Johnny Askew, the driver of the army truck in which Miller and Knight were being transported at the time of the accident. This report stated that the tractor-trailer involved in the accident was owned by "Brown Transport, Elberton, Ga." The name of the driver of Brown Transport's tractor-trailer was not completely legible. Although the first name and middle initial were clearly recognizable as "John D.," the last name appeared to be either "Ferino" or "Ferind." Both Miller and Knight surmised that the last name could also be read as Perino, Felrino, Pelrino, Felrind, or Pelrind. Appendix at 94, 96.
After learning of each other's involvement in the investigation of the accident, Mr. Dragon and Mr. O'Neill reviewed each other's files and Mr. O'Neill agreed to supply Mr. Dragon with all information that he might be able to secure in the course of his investigation. Mr. O'Neill wrote to the Commanding Officer of Miller and Knight's army company on four separate occasions (before the two-year statute of limitations had expired) in an attempt to learn the correct name and address of the tractor-trailer driver. The military authorities provided no additional information, nor did they indicate that any other information was available.
Mr. O'Neill also telephoned Brown Transport and spoke to Art Morris, an employee in the claims department. Morris stated that Brown Transport had no record of any employee or lessee with any of the possible names set forth above. Mr. O'Neill wrote to Morris requesting any additional information that Brown Transport or its insurer might have. On August 14, 1979, Brown Transport replied:
We have researched each and every department of our company which would have possibly been using Mr. Ferind/Ferino etc. as a driver on the date of the accident, November 18, 1978, and have been unable to identify this man as an agent of ours in any capacity. We have also checked with the New Jersey Department of Motor Vehicles, and have been advised the tag on the tractor was registered to Mr. Frederick H. Hoag, Jr. This tag was expired, and again, researching our various departments, we have been unable to identify Mr. Hoag as an agent of ours. Please advise if your interview with Mr. Askew reveals any additional information as we are unable to identify this as our vehicle with the small amount of information provided.
Appendix at 100. Brown Transport sent a similar letter to Knight's counsel, Mr. Dragon, in reply to his inquiry. The letter to Mr. Dragon ended with the statement: "We regret that we are unable to assist you in this matter, and if you are in possession of any information to enable us to identify the driver, we will be happy to research our records once again. Please advise." Appendix at 102.
Mr. O'Neill continued to write to various agencies trying to ascertain the identity and address of the Brown Transport driver, Mr. O'Neill wrote to Mr. Hoag, who did in fact have the tag number set forth in Askew's accident report, but the tags were assigned to a 1974 Plymouth automobile, not a tractor-trailer. Hoag never owned nor drove a tractor-trailer. In keeping with his commitment, Mr. O'Neill kept Mr. Dragon informed of all of this investigative information.
From the results of these inquiries, Mr. Dragon concluded that the tractor-trailer driver had given a false name and address at the scene of the accident, had used false tags on his vehicle and, probably had falsified the Brown Transport sign on the vehicle. Because Mr. Dragon concluded that the United States Government was immune from liability and that there was no evidence against Brown Transport except the sign on the tractor-trailer, he advised Knight that nothing further could be done to prosecute his claim with any hope of success, and they terminated their attorney-client relationship in November of 1980 (the same month that the two-year statute of limitations on Knight's claim was due to expire).
Although Mr. Dragon possessed Brown Transport's address and its insurer's address and although he knew of Askew's report listing Brown Transport as the owner of the vehicle involved in the accident, Mr. Dragon did not file any suit against Brown Transport.
On the other hand, Mr. O'Neill, on the day before the statute of limitations expired, filed an action on behalf of his client, Miller, in the United States District Court for the District of New Jersey. This suit was filed against the United States, Excalibur Insurance Corporation, Brown Transport Corporation and "John D. Ferind or Perind or Felrind or Ferino or Perino or Felrino or Pelrino." Neither Mr. Dragon nor Knight was informed that Mr. O'Neill had decided to start such an action.
In May of 1981, Mr. O'Neill, during a conference with his client, informed Miller of his inability to secure an identification of the tractor-trailer driver. Mr. O'Neill showed his client the army accident report prepared by Askew. Miller stated that this report did not have all of the information obtained by the Military Police at the time of the accident. Finally, Miller himself went to Fort Dix, and he was able to obtain a copy of the full Military Police Report.
It was from this report that Mr. O'Neill obtained a legible name and address for the tractor-trailer driver. The driver was reported to be "John D. Farina, 807 Mark Drive, Clearwater, Fla. 32809." The owner of the tractor-trailer was noted as "same as driver," not Brown Transport.
Brown Transport itself had hired Federal Investigators Network, Inc. to locate John D. Farina. On July 30, 1981, the investigators sent Brown Transport's attorney a letter stating that they had been able to communicate with Mr. Farina's wife. She stated that Mr. Farina "was an owner-operator, leased to Brown Transport," and that he had made a delivery to the Army based followed by the accident in question. Counsel for Brown Transport wrote to Mr. O'Neill on August 24, 1981. In that letter, Mr. O'Neill was informed of the existence of the investigation, that Mr. Farina's wife had been found, and that she acknowledged that her husband had been involved in an accident on the night in question. Mr. O'Neill was not informed of the fact that Mr. Farina's wife stated anything about a relationship between Farina and Brown Transport. On this issue the letter stated only that: "We are still attempting to determine whether Brown Transport has anything to do with this." Appendix at 162. On January 22, 1982, during a phone conversation, counsel for Brown Transport advised Mr. O'Neill of the additional information. Appendix at 87.
On March 24, 1982, Brown Transport's counsel reported to Mr. O'Neill that Farina had executed two trip leases with Brown Transport in late 1978 and early 1979. He reported that Farina had been paid for a trip to New York from Jacksonville, Florida extending from November 13, 1978 to November 15, 1978. He reported that their business together ended three days before ...