                 NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-2539-14T3
                                              A-2774-14T3


MARK R. KRZYKALSKI and MICHELE
KRZYKALSKI,                           APPROVED FOR PUBLICATION

         Plaintiffs-Appellants,          December 5, 2016

                                        APPELLATE DIVISION
    v.

DAVID T. TINDALL,

         Defendant-Respondent.

____________________________________________________

         Submitted September 13, 2016 – Decided December 5, 2016

         Before Judges Fisher, Leone       and   Vernoia
         (Judge Leone concurring).

         On appeal from the Superior Court of New
         Jersey, Law Division, Burlington County,
         Docket No. L-3048-11.

         Law Offices of Robert F. Rupinski, attorneys
         for appellant Michele Krzykalski (Robert F.
         Rupinski, on the brief).

         Andres   &  Berger, P.C.,   attorneys for
         appellant Mark R. Krzykalski (Kenneth G.
         Andres, Jr., of counsel; Abraham Tran, on
         the brief).

         Parker Young & Antinoff, attorneys for
         respondent (Brad A. Parker, on the brief).

    The opinion of the court was delivered by

FISHER, P.J.A.D.
       Plaintiff      Mark       R.   Krzykalski            commenced        this     action,

alleging the negligence of both defendant David T. Tindall and a

John   Doe    in    the    operation      of       their    vehicles       that    caused   an

accident in which he was injured. In their separate appeals,

which we consolidated, plaintiff and his ex-wife, Michele,1 argue

the    jury's      award    of   damages       was    against       the    weight     of    the

evidence     and    constituted       a   miscarriage          of    justice;       plaintiff

also   contends,      among      other      things,        that     the    judge    erred    in

allowing the jury to apportion liability between defendant and

the fictitiously-named John Doe.                      We find no merit in their

arguments and affirm.

       The auto accident in question occurred on October 24, 2009,

at    the    intersection        of   Hornberger           Avenue    and    Route     130    in

Florence Township.           Plaintiff's vehicle was in front of and in

the same lane as Tindall's vehicle on northbound Route 130; both

had slowed to allow an emergency vehicle enter onto Route 130

from    Hornberger         Avenue.    Once      their       vehicles       began     to    move

forward, a vehicle driven by the fictitious John Doe passed them

from   the    right       lane   of   the      northbound         Route    130     lanes    and

crossed their lane to make a left turn onto Hornberger Avenue.


1
  Plaintiff Michele Krzykalski asserted a per quod claim for loss
of consortium and services. The evidence revealed the marriage
was troubled; they separated in June 2012 and later divorced.



                                               2                                     A-2539-14T3
Both plaintiff and Tindall braked as a result of Doe's actions.

Plaintiff was able to stop without striking the vehicle in front

of   him;   Tindall's   vehicle   struck     the   rear   of   plaintiff's

vehicle.

     By way of pre-verdict motions, the judge denied plaintiff a

directed verdict on liability against Tindall and also rejected

plaintiff's request that Doe's negligence, or the apportionment

of liability between Tindall and Doe, be kept from the jury.

The jury found both Tindall and Doe negligent, and found Tindall

three   percent   and   Doe   ninety-seven    percent     responsible   for

plaintiff's injuries. Damages were awarded in plaintiff's favor

in the amount of $107,8902; no damages were awarded to Michele.

In molding the verdict, the judge entered judgment in favor of

plaintiff and against Tindall in the amount of $3,236.70.            Later

motions for a new trial or additur were denied.

     Both plaintiff and Michele appealed. Plaintiff argues:

            I. THE TRIAL COURT REVERSIBLY ERRED BY
            DENYING PLAINTIFF['S] MOTION FOR A DIRECTED
            VERDICT   ON   LIABILITY  AS   TO   DEFENDANT
            TINDALL, AND THE LIABILITY VERDICT OF 97% AS
            TO THE PHANTOM JOHN DOE, AND 3% AS TO
            DEFENDANT     TINDALL,     WHO     REAR-ENDED
            PLAINTIFF'S    STOPPED    VEHICLE,    IS    A
            MISCARRIAGE OF JUSTICE.


2
  $91,250 in pain and suffering, disability and impairment, loss
of enjoyment of life, and other non-economic losses, and $16,640
in lost past wages.



                                    3                             A-2539-14T3
         II. THE TRIAL COURT REVERSIBLY ERRED IN
         PLACING THE PHANTOM "JOHN DOE" ON THE JURY
         VERDICT SHEET.

         III. THE TRIAL COURT REVERSIBLY ERRED IN
         BARRING PLAINTIFF['S] THOMAS JEFFERSON UNI-
         VERSITY HOSPITAL RECORDS FROM EVIDENCE.

         IV. THE TRIAL COURT REVERSIBLY ERRED IN
         PERMITTING DEFENDANT TO PRESENT TESTIMONY
         AND ARGUE THAT PLAINTIFF['S] INJURIES WERE
         CAUSED BY HIS RIDING A ROLLER COASTER.

         V. THE DAMAGE VERDICT AS TO PLAINTIFF . . .
         IN THE AMOUNT OF $91,250.00 FOR PAIN AND
         SUFFERING, DISABILITY AND IMPAIRMENT, AND
         LOSS OF ENJOYMENT OF LIFE, DESPITE THE FACT
         THAT EVERY DOCTOR TESTIFIED PLAINTIFF HAD
         PERMANENT   RESIDUAL    BRAIN   DAMAGE   AND
         PERMANENT PARTIAL VISION LOSS, AND DEFENDANT
         STIPULATED THAT PLAINTIFF HAD INJURIES WHICH
         PIERCED THE LIMITATION ON LAWSUIT THRESHOLD,
         IS A MISCARRIAGE OF JUSTICE.

              A. Plaintiff is Entitled to a New
              Trial, in Light of the Extent of
              Plaintiff['s] Injuries.

              B.   The  Damage   Verdict  as  to
              Plaintiff . . . in the Amount of
              $91,250.00 was a Miscarriage of
              Justice   and   Shocking   to  the
              Conscience, and a New Trial Should
              be Granted Pursuant to He v.
              Miller.3

         VI. THE DAMAGE VERDICT AS TO PLAINTIFF . . .
         IN THE AMOUNT OF $16,540.00 FOR PAST LOST
         WAGES AND $0 FOR FUTURE LOST WAGES, ALTHOUGH
         THE EVIDENCE DEMONSTRATED THAT [PLAINTIFF'S]
         PAST AND FUTURE LOST WAGES AMOUNTED TO

3
  During the pendency of this appeal, the Supreme Court rejected
many aspects of its earlier holding in He v. Miller, 207 N.J.
230 (2011). See Cuevas v. Wentworth, 226 N.J. 480 (2016).



                               4                        A-2539-14T3
             $350,000 AND $1,554,800.00, RESPECTIVELY, IS
             A MISCARRIAGE OF JUSTICE.

             VII. THE DAMAGE VERDICT OF ZERO AS TO
             PLAINTIFF MICHELLE KRZYKALSKI FOR HER PER
             QUOD CLAIM, DESPITE THE EVIDENCE SHOWING
             THAT [PLAINTIFF'S] INJURIES DESTROYED THEIR
             FAMILY, IS A MISCARRIAGE OF JUSTICE AND
             REFLECTS THE TRAVESTY OF THE ENTIRE VERDICT.

Michele argues, in a single point, that the jury's decision to

award her nothing was against the weight of the evidence and

represented a miscarriage of justice.

      We turn first to whether the trial judge properly permitted

the   jury's    consideration     and       apportionment   of    John   Doe's

liability, as well as whether the jury's verdict that Tindall

was only three percent responsible was against the weight of the

evidence.4     Thereafter,   we    briefly        examine   the     arguments

concerning the jury's award of damages.


                                        I

      In urging our reliance on statements in our case law that

"a fictitious party is not a party to a suit," Bencivenga v.

J.J.A.M.M., Inc., 258 N.J. Super. 399, 407 (App. Div.) (emphasis

added), certif. denied, 130 N.J. 598 (1992), and the statutory


4
  We find insufficient merit in plaintiff's argument in his Point
I that the judge erred in denying his motion for a directed
verdict on Tindall's negligence to warrant discussion in a
written opinion, R. 2:11-3(e)(1)(E), because the jury in fact
found Tindall negligent.



                                        5                            A-2539-14T3
direction that the trier of fact determine "[t]he extent, in the

form of percentage, of each party's negligence," N.J.S.A. 2A:15-

5.2(b) (emphasis added), plaintiff contends that the trial judge

erred in directing the jury to determine whether John Doe was

negligent      and,        if    so,     the        percentage        to        which        he    was

responsible.           Although         it     gives        the     appearance           of       some

syllogistic logic, we do not find this argument persuasive.

      Consideration         of    an     alleged       tortfeasor's             negligence         and

degree    of    responsibility            is     not       governed        by    whether          that

tortfeasor may be said to be a "party" but turns on whether the

other tortfeasor "will be affected by the verdict." See Ramos v.

Browning Ferris Indus. of S. Jersey, Inc., 194 N.J. Super. 96,

106   (App.    Div.    1984),      rev’d        on    other       grounds,       103     N.J.      177

(1986).     The law is best served, as the Court observed in Town

of    Kearny    v.    Brandt,          214     N.J.    76,     102     (2013),          when       the

factfinder is allowed to evaluate the liability of all those

potentially responsible. So, although, for example, an employer

insulated      by    workers       compensation            laws     will        not     have       its

responsibility apportioned, Ramos, supra, 103 N.J. at 184, other

tortfeasors,        such    as    those      who      have    sought       or     obtained         the

protection     of     bankruptcy         laws,       and     therefore          are     no    longer

answerable      in    damages,          should        nevertheless          be        considered,

Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 115 (2004); see




                                                6                                            A-2539-14T3
also Town of Kearny, supra, 214 N.J. at 103 (providing other

examples   of     tortfeasors    whose       liability   was    considered    and

apportioned despite plaintiff's inability to recover from them

in whole or in part).

      Because the Comparative Negligence Act would be disserved

by exalting the "party" label in adjudicating responsibility for

a   plaintiff's    claim,   we   have    recognized      that   a   non-settling

defendant has a right to have a jury apportion the liability of

a settling defendant once it has been proven at trial that the

settling defendant was, in fact, negligent.                See Green v. Gen.

Motors Corp., 310 N.J. Super. 507, 545-46 (App. Div.), certif.

denied, 156 N.J. 381 (1998); Mort v. Besser Co., 287 N.J. Super.

423, 431 (App. Div. 1996), certif. denied, 147 N.J. 577 (1997).

Consequently, we have held that the comparative negligence of a

phantom driver, such as John Doe here, should be considered by a

jury in a trial brought by an injured party against another

tortfeasor.       See Cockerline v. Menendez, 411 N.J. Super. 596,

618-19 (App. Div.), certif. denied, 201 N.J. 499 (2010).

      Plaintiff argues this case differs from Cockerline because

in that case a uninsured motorist (UM) carrier standing in the

shoes of the fictitious driver settled with plaintiff prior to

trial and, here, the proceedings between plaintiff and his UM




                                         7                              A-2539-14T3
insurer     have    yet        to    be        resolved.5         Despite       that     factual

difference, however, there remains in both instances a need to

apportion responsibility between the two tortfeasors.                                  In short,

if plaintiff and the UM insurer had settled prior to trial,

apportionment would be required because Tindall, the remaining

defendant, would be "chargeable with the total verdict less that

attributable       to    the     settling            defendant's      percentage         share."

Cartel Capital Corp. v. Fireco of N.J., 81 N.J. 548, 569 (1980).

We see no distinction worthy of creating a different rule and

drawing a different conclusion where the plaintiff and the UM

insurer    have     not    yet       litigated          their      disputes.           To    allow

plaintiff to obtain from Tindall the full amount of damages

assessed    by    the     jury      and,       later,      seek    recovery      from       the   UM

carrier,    could       result      in     a    windfall,         contrary      to    our    prior

holdings. As we said in Cockerline, "to preclude defendants from

seeking    an     apportionment            of     liability         against      the     phantom

vehicles    does    not     advance            the    purposes      of    the    UM     law       and

frustrates the purposes of the joint tortfeasor and comparative

fault     law."    411     N.J.       Super.          at    619.         We,    thus,       reject

plaintiff's contention that, because John Doe may not be labeled


5
  According to the parties' submissions, plaintiff previously
refused his UM carrier's offer of the policy limits both before
and during trial, leaving that matter to be determined upon an
eventual demand for UM arbitration.



                                                 8                                      A-2539-14T3
a "party," his negligence should not have been apportioned by

the jury.6

     We also reject plaintiff's argument that the jury's finding

that John Doe was ninety-seven percent responsible and Tindall

only three percent responsible was against the weight of the

evidence.    Plaintiff chiefly relies on Dolson v. Anastasia, 55

N.J. 2, 10-12 (1969), which held that a new trial was required

when a jury failed to find defendant negligent when his vehicle

struck plaintiff's vehicle from the rear.      Contrary to what

required a new trial in Dolson, the jury here found Tindall

negligent and his negligence a proximate cause of plaintiff's

injuries.    The question posed here -- in the context of the

trial judge's denial of a motion for a new trial on this point -

6
  It may, at first blush, appear that our holding today and, for
that matter, our holding in Cockerline, are inconsistent with
our earlier decision in Bencivenga, where we upheld a decision
not to submit a fictitious defendant's liability to the
factfinder for apportionment.      Such an assumption would be
mistaken. In deciding Bencivenga, we were persuaded that the
defendant nightclub was in the best position to identify the
fictitious defendant, who was one of its bouncers, and that it
would have been inequitable to allow the nightclub to receive a
potential benefit from its reticence. 258 N.J. Super. at 410.
Similarly, our holdings here and in Cockerline also provide a
more equitable result. See also Kranz v. Schuss, __ N.J. Super.
__, __ (App. Div. 2016) (slip op. at 20) (holding that the only
"equitable result" in this New Jersey suit – where an earlier
New York suit against a New York defendant – was to have the New
Jersey jury assign and allocate the fault of both the New Jersey
defendant and the New York tortfeasor, even though the New York
tortfeasor could never be a "party" to the New Jersey suit due
to lack of personal jurisdiction).



                                9                       A-2539-14T3
-     simply   concerns           whether       the       jury's      apportioning         of

responsibility between two tortfeasors was against the weight of

the evidence.

       A judge shall grant a motion for a new trial "if, having

given due regard to the opportunity of the jury to pass upon the

credibility      of   the        witnesses,        it     clearly    and     convincingly

appears that there was a miscarriage of justice under the law."

R. 4:49-1(a). In applying this standard, the judge must evaluate

the   evidence    with      an    eye    toward         correcting       "clear    error   or

mistake by the jury." Dolson, supra, 55 N.J. at 6.                           The judge is

to "take into account, not only tangible factors relative to the

proofs as shown by the record, but also appropriate matters of

credibility, generally peculiarly within the jury's domain, and

the    intangible     'feel       of    the     case'     which     it    has     gained   by

presiding over the trial." Kita v. Borough of Lindenwold, 305

N.J. Super. 43, 49 (App. Div. 1997). Even then, we will not

reverse the judge's ruling on the motion unless "it clearly

appears that there was a miscarriage of justice under the law."

R. 2:10-1.

       In   ruling    on    the        motion      for    a   new    trial,       the   judge

correctly observed that the jury was faced with the consequence

of two negligent acts committed by two separate individuals.

Tindall     failed    to    keep       sufficient        distance     from      plaintiff's




                                              10                                    A-2539-14T3
vehicle to avoid striking it from behind, and John Doe cut off

plaintiff's vehicle, Tindall's vehicle, and others, by crossing

the northbound lanes to make a left turn off the roadway.             The

degree of responsibility between these two tortfeasors presented

a fact-sensitive question for the jury. In the jurors' eyes,

John Doe was far more blameworthy than Tindall.        And the trial

judge observed the witnesses, and gained a feel of the case,

found no miscarriage of justice in what the jury concluded.

After close examination of the record in light of our standard

of review, we cannot conclude that it "clearly appears" the

verdict was "a miscarriage of justice." R. 2:10-1.


                                  II

    We find insufficient merit in plaintiff's contention that

the jury's award of damages, either separately or collectively

examined,   constituted   a   miscarriage   of   justice   to   warrant

discussion in a written opinion.       R. 2:11-3(e)(1)(E).      We come

to the same conclusion with regard to Michelle's contention that

the jury's verdict on her claim for damages also constituted a

miscarriage of justice. We add only the following few brief

comments.

    In his third point, plaintiff argues the trial judge erred

in barring admission of plaintiff's Thomas Jefferson University

Hospital records.   In his brief, plaintiff did not refer us to



                                  11                            A-2539-14T3
where in the record this ruling was made and he did not identify

the particular records in question. Based on our own review of

the record, we assume plaintiff refers in this point to hospital

records he offered into evidence for the first time shortly

before      summations.      The    record    suggests      that    although    medical

experts may have either alluded to or based their opinions on

their review of some hospital records, Tindall objected because

there were things mentioned in the records in question that had

not been addressed by any witness.                        The judge sustained that

objection.

       We find no abuse of discretion in the judge's ruling. To

the    extent   the     records      contained       information     not    previously

mentioned by a witness, the judge correctly excluded them.                            And

to    the   extent    they    were     offered       to   corroborate      an   expert's

testimony, their exclusion was harmless.

       Lastly, we reject the arguments of both plaintiff and his

ex-wife that the verdict on damages was against the weight of

the evidence and represented a miscarriage of justice.                            To be

sure, plaintiff has advocated his injuries were extensive and

that the jury was mistaken in rendering an award far short of

what he believes is fair and just.                    The fact of the matter is,

however,      that     the    extent     and      significance       of    plaintiff's

injuries     was     much    in    dispute,    and    the    jury   was    entitled    to




                                             12                                 A-2539-14T3
exercise   its     judgment    in    crediting   or     rejecting   plaintiff's

claims.    By the same token, the jury's decision to award nothing

to Michele likely was based in part on its view that plaintiff

was not injured as severely as he claimed.                 Also, Michele took

on no additional responsibilities due to the accident and, with

the deterioration of their marriage that started prior to the

accident, she incurred no loss as a result of the accident.                      We

have   been   presented       with   no    principled    reason     for   second-

guessing the jury's determinations on damages.

       Affirmed.




                                          13                              A-2539-14T3
LEONE, J.A.D., concurring.

       I concur in the result reached by my colleagues but write

separately to explain why, in my view, that result hews to the

statute and the governing precedent of our Supreme Court because

a fictitious party is a "party" under the Comparative Negligence

Act ("Act").     N.J.S.A. 2A:15-5.1 to -5.8.

       The Act provides that the trier of fact shall determine

"[t]he 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)(2) (emphasis added).

       Our Supreme Court has held that the Act "restricts the

assessment of negligence to 'the parties to [the] suit.'"                     Ramos

v. Browning Ferris Indus., Inc., 103 N.J. 177, 193 (1986) [Ramos

II] (quoting N.J.S.A. 2A:15-5.2(b) (1973)).                   In Ramos II, the

Court found that once an employer, immune under the Workers'

Compensation Act, "obtain[ed] its summary judgment of dismissal,

[it] was no longer a party to the suit, and the trial court

correctly decided not to submit [its] negligence to the jury."

Ibid.

       Subsequent to Ramos II, the Court allowed the assessment of

the    negligence   of   parties   who     could   not   be   held   liable    for
reasons other than immunity.                 Town of Kearny v. Brandt, 214 N.J.

76, 83 (2013) (holding that "when the claims against a defendant

are    dismissed        on    statute       of     repose     grounds,        fault         may    be

apportioned        to   the    dismissed         defendant      under       the    Comparative

Negligence Act"); Brodsky v. Grinnell Haulers, Inc., 181 N.J.

102, 116 (2004) (holding that fault may be apportioned to "a

joint tortfeasor whose case is dismissed before trial because of

a bankruptcy discharge"); Young v. Latta, 123 N.J. 584, 596-97

(1991)      (holding     that       a    non-settling       defendant        may       obtain      an

allocation of fault to a settling defendant).

       In those cases, the Court distinguished Ramos II because

"no cause of action in tort against the employer ever arose" as

the    employer     was      completely          immune   and     thus      "not       a    'party'

within the meaning of N.J.S.A. 2A:15-5.2."                             Brandt, supra, 214

N.J.   at    99,    103;      see       Brodsky,     supra,     181    N.J.       at       115   ("an

employer cannot be a party to a negligence action").                                   The Court

reaffirmed      that      allocation        of       negligence       was   only       available

against a "party" within the meaning of the Act.                                   See Brandt,

supra, 214 N.J. at 98 ("the terms 'each party' and 'all the

parties to a suit,' as used in the Comparative Negligence Act,

encompass defendants who have been granted dismissals pursuant

to the statute of repose" (citation omitted)); Brodsky, supra,

181 N.J. at 110 ("a defendant who has been dismissed from a case




                                                 2                                          A-2539-14T3
as a result of a bankruptcy discharge is still a 'party' to whom

a   percentage     of       fault   may   be       allocated");        see   also    Brandt,

supra, 214 N.J. at 100 ("[Young] implicitly recognized 'that a

defendant who settles and is dismissed from the action remains a

"party" to the case for the purpose of determining the non-

settling    defendant's         percentage         of     fault'"      (quoting     Brodsky,

supra, 181 N.J. at 113)).

      Thus, the issue before us is whether an unidentified person

named as a fictitious party is a "party" within the meaning of

the Act.     In Bencivenga v. J.J.A.M.M., Inc., 258 N.J. Super. 399

(App. Div.), certif. denied, 130 N.J. 598 (1992), we correctly

recognized that the Act addresses "apportioning negligence among

parties to the lawsuit."              Id. at 411; see Steele v. Kerrigan,

148 N.J. 1, 33 (1997) (noting "with approval the holding in

Bencivenga,       supra,      that    the      obligation         to    apportion        fault

applies     only       to    tortfeasors           that     are   defendants        in    the

litigation").       However, Bencivenga, supra, then ruled that "the

plain and ordinary meaning of the statutory language precludes

inclusion    of    a    fictitiously        named         tortfeasor     from     the    Act's

commands for apportioning fault."                    258 N.J. Super. at 406.               The

rationales    for      that    ruling     are       flawed    and      out   of   step    with

subsequent Supreme Court cases.




                                               3                                    A-2539-14T3
    First, Bencivenga cited the language in N.J.S.A. 2A:15-5.1

providing that contributory negligence does not bar recovery if

it "was not greater than the combined negligence of the persons

against whom recovery is sought."                        Bencivenga, supra, 258 N.J.

Super. at 406.          We then reasoned that "[a] fictitious person is

not someone against whom recovery can be sought because the

fictitious person rule, R. 4:26-4, and due process prevent entry

of judgment against a person designated by a fictitious name."

Id. at 406-07.          However, a fictitious defendant literally is a

person   against        whom       recovery       is    sought.           It   is   true      that

recovery    cannot          be   obtained         until       the   fictitious         party    is

identified and served.               However, subsequent to Bencivenga, our

Supreme Court in Brodsky and Brandt permitted allocation of the

negligence    of     parties         against          whom     recovery        could    not    be

obtained.          In        any     event,           N.J.S.A.       2A:15-5.1         addresses

contributory negligence, not comparative negligence.

    Second,    Bencivenga,             supra,          reasoned       that     "a   fictitious

person   is   not       a    party     to     a       suit.         The   person       plaintiff

identifies as a fictitious defendant only becomes a party to the

suit when the defendant's true name is substituted in an amended

complaint and service is effected."                            258 N.J. Super. at 407.

However, a fictitious defendant is listed as a party in the

complaint, and "process may issue against the defendant under a




                                                  4                                     A-2539-14T3
fictitious      name."     R.    4:26-4.       Bencivenga      cited    Farrell     v.

Votator Division of Chemetron Corp., 62 N.J. 111, 120 (1973),

but   Farrell    ruled    that    substituting      a   fictitious     defendant's

true name was not the addition of "a new party" but the renaming

of the existing fictitious party.                 Ibid.; see Stegmeier v. St.

Elizabeth Hosp., 239 N.J. Super. 475, 484 (App. Div. 1990).

      Third, Bencivenga stated its "result is supported by our

holding in Ramos v. Browning Ferris Ind. of So. Jersey, Inc.,

194 N.J. Super. 96 (App. Div. 1984) [Ramos I], rev'd on other

grounds, 103 N.J. 177 (1986) [Ramos II]."                     Bencivenga, supra,

258 N.J. Super. at 407.               Bencivenga quoted Ramos I's reasoning

that "[a] truer verdict is more likely to be returned where the

fact finder's attention is ultimately fixed on the conduct of

the   parties    who     will    be    affected    by   the   verdict."        Ibid.

(quoting Ramos I, supra, 194 N.J. Super. at 106).

           [T]here is no more reason to have a fact
           finder assign a percentage of negligence to
           someone who is not affected by the verdict
           than to assign a percentage of negligence to
           acts of God (such as the snow in this case)
           or a myriad of other causative factors that
           may have contributed to the happening of an
           accident.

           [Ibid. (emphasis added) (quoting                   Ramos    I,
           supra, 194 N.J. Super. at 106).]




                                           5                                A-2539-14T3
      However, our "affected by the verdict" test in Ramos I was

not   adopted     by    our    Supreme       Court    in    Ramos    II.1      Moreover,

subsequent      to     Bencivenga,       the     Court      in    Brodsky    and     Brandt

permitted allocation of the negligence of parties who would not

be affected by the verdict, such as defendants protected by

bankruptcy or the statute of repose.

      Thus,     it     appears      Bencivenga       is    no    longer     good    law    on

whether apportionment of negligence is possible from a party

from whom recovery is not currently possible.                               While    Brandt

mentioned Bencivenga in describing how "[t]he Appellate Division

has   also     considered        the    issue    of       apportionment      in     several

settings,"       Brandt       did      not   involve        fictitious       defendants.

Brandt, supra, 214 N.J. at 101-02, 103.                          Thus, we do not read

Brandt    as    adopting       the     holding       in    Bencivenga       barring       the

assessment of negligence of fictitious parties.                              Indeed, the

Court    in    Brandt    announced       four    "guiding        principles"       for    the

assessment of negligence, which support assessing the negligence

of a fictitious party.              Id. at 102–03.

1
  Ramos II, supra, did agree that "other causes, such as the snow
that fell on the ground, might have contributed to the happening
of the accident, yet the degree of fault to be attributed to
those additional causes was not submitted to the jury."       103
N.J. at 193 (citing Ramos I, supra, 194 N.J. Super. at 106).
Unlike snow and other acts of God, however, a fictitious driver
can be sued, may be liable, and should be considered in
assessing the comparative negligence of the persons who
contributed to causing an accident.



                                             6                                      A-2539-14T3
      "First,        the      Comparative        Negligence        Act   and        the       Joint

Tortfeasors Contribution Law promote 'the distribution of loss

"in proportion to the respective faults of the parties causing

that loss."'"           Id. at 102 (quoting Brodsky, supra, 181 N.J. at

114).        "Given the impact of a defendant's percentage of fault on

the scope of its liability, the statutes' objectives are best

served        when     the      factfinder        evaluates        the   fault           of    all

potentially responsible parties."                     Ibid.       That principle plainly

supports       assessing        the      negligence      of   a   fictitious        party      who

helped cause the loss and is potentially responsible.                                      Absent

allocation of negligence of the fictitious party, "a defendant

who     is     found     to     be       one   percent    negligent      would        be      held

responsible for ninety-nine percent of the negligence caused by

a joint tortfeasor."                 See Brodsky, supra, 181 N.J. at 116.                       The

Court    "decline[d]           to    follow     th[at]    approach,"     and        we     should

likewise decline to impose 100% liability on defendant though

the jury found him only 3% liable and the fictitious driver 97%

liable.       See ibid.

      "Second, our courts have barred apportionment where, as a

matter of law, defendant could not under any circumstances be a

joint tortfeasor under N.J.S.A. 2A:53A-2."                           Brandt, supra, 214

N.J. at 102.           Unlike the employer "immunized from any action in

tort"     in     Ramos        II,    a     fictitious     party     could      be     a       joint




                                                 7                                       A-2539-14T3
tortfeasor     under      N.J.S.A.    2A:53A-2        if   identified      and   served.

See ibid.2

     "Third,      apportionment         of       fault     under   the     Comparative

Negligence Act and the Joint Tortfeasors Contribution Law does

not turn on whether the plaintiff is in a position to recover

damages from the defendant at issue."                      Id. at 103.       Thus, the

apportionment        of    negligence    of       a   fictitious     party       is    not

precluded because the plaintiff will not be in a position to

recover damages until it identifies and serves that party.

     "Fourth, a claimant's failure to conform to a statutory

requirement for asserting claims against a given defendant does

not necessarily bar apportionment of that defendant's fault at

trial."      Ibid.        There is no statutory bar against asserting a

claim against a fictitious defendant; indeed, it is permitted by

Rule 4:26-4.

     Thus, assessing the negligence of a fictitious party is

consistent with all four guiding principles articulated by our

Supreme   Court      in     Brandt.      "Applied          here,   these    principles

require that we affirm the [Law] Division's decision on the


2
   For   purposes of   N.J.S.A.  2A:53A-2,  "the  term  'joint
tortfeasors' means two or more persons jointly or severally
liable in tort for the same injury to person or property,
whether or not judgment has been recovered against all or some
of them." N.J.S.A. 2A:53A-1.




                                             8                                   A-2539-14T3
issue of apportionment."                 See Brandt, supra, 21 N.J. at 103.

"The    goals      of    our     comparative         fault     statutory    scheme       are

advanced     if    the    jury    assesses        the   [fictitious]       defendant['s]

potential fault in this case" because such assessment "promotes

fair    allocation        of     responsibility          and     avoids    creating       an

incentive for a plaintiff to strategically target only one of a

range of culpable defendants."                See id. at 104.

       Indeed, as the majority opinion points out, plaintiffs have

the ability to indirectly obtain a measure of compensation based

on the negligence of the fictitious driver through uninsured

motorist (UM) insurance, but chose not to complete that process

before going to trial against defendant.                           Cf. Cockerline v.

Menendez,       411      N.J.    Super.       596,      617-19     (App.    Div.      2010)

(approving apportionment of negligence of a fictitious driver

after    the      plaintiff      recovered        for    his     negligence      under    UM

insurance).        Assessing the negligence of the fictitious driver

prevents       plaintiffs        from    strategically           waiting    to     proceed

against UM insurance, allocates fault based on actual negligence

of     the   various       drivers,       and      avoids        double    recovery       by

plaintiffs.

       For   these       reasons,       the   trial      court's    apportionment         of

negligence was proper and should be affirmed.




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