LUCAS et al v. ROMITO et al
MEMORANDUM OPINION. Signed by Magistrate Judge Tonianne J. Bongiovanni on 12/1/2016. (km)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JERILYN A. “JERI” LUCAS AND
NICHOLAS ROMITO, ET AL,
Civil Action No. 12-1143 (MAS)
This matter comes before the Court upon Plaintiffs, Jerilyn A. Lucas and John Lucas’
(“Plaintiffs”) request to file an Amended Complaint (Docket Entry No. 110) to add Count Seven,
an Underinsured Motorist (“UIM”) count against Defendant American Family Insurance and
Count Eight, an Underinsured Motorist count against Defendant Electric Insurance Company1
pursuant to Fed.R.Civ.P. 15(a). Defendant American Family Insurance (“Defendant”) opposes
Plaintiffs’ Motion (Docket Entry No. 113). The Court has fully reviewed and considered all
arguments made in support of, and in opposition to, Plaintiffs’ motion. The Court considers
Plaintiffs’ motion without oral argument pursuant to L.Civ.R. 78.1(b). For the reasons set forth
more fully below, Plaintiffs’ motion to file an Amended Complaint to add Count Seven against
Defendant American Family Insurance is GRANTED.
The parties are aware of the facts of this case, therefore, they are not restated herein at
length. This case arises out of an automobile accident in which Plaintiff Jerilyn Lucas
A stipulation of dismissal with prejudice as to Defendant Electric Insurance Company was entered on October 3,
2016 (Docket Entry No. 120), therefore, the motion to amend the complaint with regard to Count Eight against
Electric Insurance Company is now moot.
(“Plaintiff”) sustained serious injuries. Plaintiff was a right front seat passenger in Nicholas
Romito’s (“Defendant Romito”) vehicle. According to Plaintiff’s account of the accident,
Defendant Romito was driving in the center lane of three lanes of traffic on the New Jersey
Turnpike when a red sports car (“phantom vehicle”) veered from the left lane into Defendant
Romito’s lane causing him to swerve to the right and sideswipe a truck driven by Defendant
Mark Fisher. (Pls.’ Motion to Amend at 2, ¶¶ 1-2). After the initial collision, Defendant
Romito’s vehicle then collided with a concrete median barrier of the New Jersey Turnpike.
A. Plaintiffs’ Motion to Amend
Plaintiffs argue that they should be permitted to amend the complaint to add an
Underinsured Motorist count against Defendant American Family Insurance because they are
seeking to simply state an alternative theory for recovery, which they argue is permitted under
Foman v. Davis, 371 U.S. 178 (1962). Plaintiffs note that this Court granted Defendant’s
summary judgment motion and dismissed Plaintiffs’ Uninsured Motorist Claim on May 31, 2016
(Docket Entry No. 99). Plaintiffs state that once the UM Counts were dismissed, Plaintiffs
formally put Defendant on notice of the UIM claim. (Pls.’ Mot. to Amend at 7). Plaintiffs
further argue that they had previously put Defendant on notice of their intentions to assert a UIM
claim if the UM claims were dismissed. (Id.) Finally, Plaintiffs argue that there is no prejudice
to Defendant because it has participated in this cause of action since Plaintiffs filed their original
complaint, has fully participated in all discovery, has participated in Plaintiff’s deposition and
has received all medical records. (Id. at 8).
B. Defendant’s Opposition
Defendant argues that Plaintiffs’ motion to amend is futile because Plaintiffs’ have failed
to exhaust all available insurance policies which Defendant claims is a precursor to any UIM
coverage from American Family. (Def.’s Opp. Br. At 5). Defendant states that while Plaintiffs
settled with State Farm (Defendant Romito’s insurer) for Defendant Romito’s full liability limits,
Plaintiffs failed to settle with and exhaust the full insurance policy amounts of Blue Chip’s
insurance with Lincoln General for Fisher’s liability, which has $1 million available. (Id. at 8).
Defendant also argues that Plaintiffs’ motion is futile because Plaintiffs cannot show that they
are legally entitled to recover any further damages from Defendant Romito. (Id.) Defendant
states that “the evidence to date shows that Romito was the least liable for the accident, surely
such fault would be apportioned.” (Id.) Defendant claims that “neither the proposed pleading nor
any discovery to date indicates that Plaintiffs are entitled to more damages.” (Id. at 10).
Defendant argues that any amendment to the complaint would prejudice Defendant
because it would require additional discovery that is now unavailable due to the death of
Defendant Romito on August 10, 2016. (Id. at 13). Defendant argues that Plaintiffs are not
merely asserting an alternative theory of liability, rather, they are asserting an entirely new
theory of liability that will “fundamentally alter how [Defendant] can defend this case.” (Id. at
14). Defendant states that it has attempted to diminish the phantom vehicle’s liability and has
been asserting Defendant Romito’s liability. (Id.) Defendant argues that it would be prejudiced
because the entire time since the complaint was filed in 2012, Defendant has been “focused and
strategized on the UM claim and the liability of the phantom vehicle.” (Id. at 15).
Defendant further argues that Plaintiffs have unduly delayed in seeking to amend the
complaint only after Defendant was granted summary judgment. (Id.) Defendant states that
Plaintiffs have alleged that damages were over one million dollars as early as December 2013
and knew that Defendant Romito’s liability limits were $500,000. (Id. at 15, 16).
C. Plaintiffs’ Reply
Plaintiffs argue that the majority of Defendant’s arguments are based upon issues of fact
and the assignment of liability among the Defendant parties. (Pls.’ Reply Br. at 1). Plaintiffs
note that there has never been a decision in this matter where liability was apportioned between
the Defendants. (Id. at 5). Plaintiffs state that they are not attempting to gain recovery from
Defendant’s UM policy as Defendant argues and that the UIM claim is based on Defendant
Romito’s fault and his insurance policy. (Id.). Plaintiffs argue that they are clearly entitled to
the UIM coverage for Defendant Romito’s percentage of liability. (Id.) Moreover, Plaintiffs
argue that they did not unnecessarily delay the filing of the motion to amend. Plaintiffs note that
UIM claims are generally accepted when noticed. (Id. at 7). Plaintiffs further state that on
December 3, 2013, they forwarded a demand to all Defendant’s putting them on notice that
Plaintiffs’ damages exceeded $3 million, which exceeded the combined policy limits. (Id.)
Pursuant to Fed.R.Civ.P.15(a)(2), leave to amend the pleadings is generally granted
freely. See Foman v. Davis, 371 U.S. 178, 182 (1962); Alvin v. Suzuki, 227 F.3d 107, 121 (3d
Cir. 2000). Nevertheless, the Court may deny a motion to amend where there is “undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of
the amendment, [or] futility of the amendment.” (Id.) However, where there is an absence of
undue delay, bad faith, prejudice or futility, a motion for leave to amend a pleading should be
liberally granted. Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004).
An amendment is futile if it “is frivolous or advances a claim or defense that is legally
insufficient on its face.” Harrison Beverage Co. v. Dribeck Imp., Inc., 133 F.R.D. 463, 468
(D.N.J. 1990) (internal quotation marks and citations omitted). To evaluate futility the District
Court uses “the same standard of legal sufficiency” as applied for a motion to dismiss under Rule
12(b)(6). Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). “Accordingly, if a claim is
vulnerable to dismissal under Rule 12(b)(6), but the plaintiff moves to amend, leave to amend
generally must be granted unless the amendment would not cure the deficiency.” (Id.)
The Court finds that the Plaintiffs’ motion to amend is not futile. The liability of each
Defendant and whether each policy must be exhausted are questions of fact for the District Judge
or a jury to decide.
The Court finds that there was no undue delay, bad faith or dilatory motive by Plaintiffs.
As Defendant stated in its opposition brief, “Plaintiffs have alleged that damages were over one
million dollars as early as December 2013 and knew that Defendant Romito’s liability limits
were $500,000.” (Id. at 15, 16). This, along with a December 20, 2013 letter in which Plaintiffs
stated the demand exceeds the combined policy limits (Docket Entry No. 48), put Defendant on
notice that their UIM policy would be at issue. Furthermore, Plaintiff again put Defendants on
notice of a UIM claim in its opposition to Defendant’s summary judgment motion. Defendant
then responded to Plaintiffs raising of a UIM claim in its reply brief. As Defendant has been on
notice about a possible UIM claim since December 2013, the Court finds that there is no undue
prejudice to Defendant if the amendment is allowed.
For the reasons set forth above, Plaintiffs’ Motion to Amend is GRANTED. An
appropriate Order follows.
Dated: December 1, 2016
s/ Tonianne J. Bongiovanni
HONORABLE TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE
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