Opinion
DOCKET NO. A-0827-11T1
07-25-2012
JAMES MURPHY, Plaintiff-Respondent, v. COUNTY OF OCEAN, Defendant-Appellant, and TOWNSHIP OF BRICK, STATE OF NEW JERSEY, STATE OF NEW JERSEY DEPARTMENT OF TRANSPORTATION, Defendants.
Berry, Sahradnik, Kotzas, Benson, P.C., attorneys for appellant (Garrick R. Slavick, on the brief). Polloway & Polloway, LLP, attorneys for respondent (Jack Polloway, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Messano.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1143-11.
Berry, Sahradnik, Kotzas, Benson, P.C., attorneys for appellant (Garrick R. Slavick, on the brief).
Polloway & Polloway, LLP, attorneys for respondent (Jack Polloway, on the brief). PER CURIAM
Defendant County of Ocean appeals from the Law Division's orders: denying its motion to dismiss the complaint of plaintiff, James Murphy, and granting plaintiff's cross-motion to file a late notice of claim under the Tort Claims Act (the TCA), N.J.S.A. 59:1-1 to 12-3; and denying defendant's subsequent motion for reconsideration. We have considered the arguments raised on appeal in light of the record and applicable legal standards. We reverse.
The orders also dismissed plaintiff's complaint "without prejudice for failure to comply with [N.J.S.A.] 59:8-8 which requires that six months must elapse from the date notice of claim is received before suit may be filed." The orders are nonetheless reviewable as final orders. R. 2:2-3(a)(3).
On August 15, 2010, plaintiff was injured while driving his motorcycle at the intersection of Mantoloking Road and Hooper Avenue in Brick Township (Brick). He alleged the accident was caused when his motorcycle struck a pothole in the roadway.
The parties' appendices do not include all the documents apparently filed in support of the motion and cross-motion. See Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 2:6-1 (2012) ("filed documents in the action bearing on the issues on appeal are required to be included in the appendix"). We therefore rely, in part, on the judge's oral decision to explain what happened procedurally thereafter.
On October 19, two months after the accident, and within the ninety-day timeframe provided by N.J.S.A. 59:8-8, plaintiff's counsel filed a notice of tort claim upon Brick. In response, Scibal Associates (Scibal), Brick's "claims administrator," forwarded a six-page questionnaire dated October 26. See N.J.S.A. 59:8-6 (permitting the public entity to "adopt forms specifying information to be contained in claims filed against it"). Plaintiff asserted that he "completed and returned" the form to Scibal, although the record does not reveal when that was done. By letter dated February 24, 2011, Scibal advised plaintiff's counsel that Brick did not "own, control, or maintain the location of [plaintiff's] accident." The letter was accompanied by an "Affidavit of Non-Jurisdiction" executed by Brick's Safety Inspector.
Neither party included these two pieces of correspondence in their appendix.
On March 3, 2011, plaintiff's counsel served a notice of tort claim upon defendant and the State of New Jersey, Department of Transportation. On March 14, Scibal, which also served as defendant's claims administrator, advised plaintiff's counsel "that this claim can not be accepted as submitted after the 90 day Notice of Claim period and will require filing a Late Notice of Claim Motion with the Court."
The orders under review also permitted plaintiff to file a late notice of claim against the State of New Jersey and "NJDOT." The State has not participated in this appeal. On April 3, 2012, the parties filed in the Law Division and with this Court an executed consent stipulation of dismissal without prejudice as to the State of New Jersey Department of Transportation.
Plaintiff filed no such motion, but, rather, on March 24, filed a complaint against defendant. On June 1, defendant moved to dismiss in lieu of filing an answer. Plaintiff opposed the motion and cross-moved for leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9.
Brick and the State of New Jersey were named as co-defendants.
--------
In his oral decision, the judge concluded plaintiff had "demonstrated exceptional circumstances," and defendant had "not been substantially prejudiced." He reasoned that because Scibal forwarded a "six-page" request for information and waited four months to advise plaintiff that Brick did not maintain the road, plaintiff's counsel "could reasonably infer and did infer that Brick . . . was the responsible party." The judge continued, "The identity of the proper party in this case was obscured . . . by Scibal['s] . . . initial response to plaintiff's counsel and led counsel to believe he had identified and served notice on the proper party." Since "the delay in notice was not significant[,] that is, less than four months after the date the 90-day notice was due[,]" the judge found defendant suffered no prejudice.
Defendant moved for reconsideration. In an oral opinion, the judge reiterated his prior reasoning and concluded that "[t]he identity of the proper party in this instance was obscured by Scibal['s] . . . initial response . . . and led counsel to believe that he had identified and served notice on the proper party." He denied defendant's motion for reconsideration and this appeal followed.
We set forth some general principles that guide our review. "N.J.S.A. 59:8-8(a) requires that a plaintiff seeking to file a claim against a public entity serve a notice of claim within ninety days of the accrual of the cause of action," "an intentionally short period in which the claimant must conduct an investigation and give notice to the correct public entity." McDade v. Siazon, 208 N.J. 463, 475 (2011) (emphasis added). Failure to comply "results in a severe penalty: '[t]he claimant shall be forever barred from recovering against [the] public entity.'" Id. at 476 (alterations in original) (quoting N.J.S.A. 59:8-8). "[R]ecogniz[ing] that discretionary judicial relief from the ninety-day [TCA] requirement may be necessary to ameliorate the consequence of a late filing in appropriate cases," "[t]he Legislature imposed two standards for the grant of permission to file a late notice of claim: first, that there be a showing of 'sufficient reasons constituting extraordinary circumstances' for the claimant's failure to timely file, and second, that the public entity not be 'substantially prejudiced' thereby." Id. at 476-77 (quoting N.J.S.A. 59:8-9).
The TCA does not define what constitutes "extraordinary circumstances," leaving "for a case-by-case determination . . . whether the reasons given rise to the level of 'extraordinary' on the facts presented." Lowe v. Zarghami, 158 N.J. 606, 626 (1999) (citation and internal quotation marks omitted). "The inquiry focuses on the reasonable diligence of the plaintiff in investigating the claim and determining the identity of the tortfeasor." McDade, supra, 208 N.J. at 477. Whether to permit a plaintiff to file a late notice of claim "is a matter left to the sound discretion of the trial court, [although] this discretion is limited to cases in which the claimant's affidavit shows sufficient reasons constituting extraordinary circumstances for the delay and there is no substantial[] prejudice[] to the public entity or employee." Leidy v. Cnty. of Ocean, 398 N.J. Super. 449, 456 (App. Div. 2008) (citations and internal quotation marks omitted).
In McDade, supra, 208 N.J. at 469, the plaintiff tripped and fell over a pipe, owned by the Egg Harbor Township Municipal Utility Authority (the MUA), protruding from a sidewalk, owned by Egg Harbor Township (the Township). He served the Township with a timely notice of claim which was acknowledged by its claims administrator, coincidentally, Scibal. Id. at 469-70. The plaintiff served no notice of claim upon the MUA within the 90-day period, nor did the record "reflect any investigation by [plaintiff's] counsel during that ninety-day period to determine the identity of the pipe's owner." Id. at 470. Approximately four months later, Scibal advised the plaintiff's attorney that its investigation revealed that the MUA had jurisdiction of the pipe. Ibid.
The trial court denied the MUA's motion for summary judgment "holding that the discovery rule tolled the accrual of plaintiffs' cause of action . . . until . . . [plaintiff was] made aware that the pipe at issue was the property of the MUA." Id. at 471. We reversed, id. at 472, and the Supreme Court affirmed. Id. at 481. In determining that the discovery rule did not apply, the Court noted "[t]here is no evidence that [the] plaintiff[] searched the public record, inquired about the ownership of the pipe at municipal or MUA offices, or took any affirmative steps to determine the identity of the pipe's owner." Id. at 479; see also Blank v. City of Elizabeth, 162 N.J. 150, 152-53 (1999) (the plaintiff's limited command of English did not establish extraordinary circumstances when "an inspection of the area within a reasonable time following the accident would have led promptly to the identification of the public entity defendants that were responsible for installation and maintenance of the shut-off valve").
The facts in this case mirror those presented in Leidy. In that case, the plaintiff crashed his motorcycle and filed a timely notice of claim with Ocean County and Jackson Township, in addition to other State entities. Leidy, supra, 398 N.J. Super. at 453-55. After the ninety-day period expired, it was determined that Monmouth County was actually responsible for maintaining the road. Id. at 454. The plaintiff then filed a motion seeking leave to file a late notice of claim, which was granted, and subsequently served the notice of claim. Ibid. We reversed. Id. at 455.
We noted that "sufficient reasons could exist for the filing of late notice of claim based on misidentification of the responsible party only where a plaintiff had been thwarted in his or her diligent efforts to determine the responsible party or where the tortfeasor's identity had been actively obscured by the original defendants." Id. at 457 (emphasis added). We concluded that "there [was] no thwarting," despite the plaintiff's contention that the public entities actually served never "claimed that another public entity may be liable." Id. at 461; Cf. Mendez v. S. Jersey Transp. Auth., 416 N.J. Super. 525, 532, 534 (App. Div. 2010) (finding extraordinary circumstances where the initial public entity served with a timely notice of claim never responded to the plaintiff's diligent requests for videotapes of the accident scene).
In this case, the record is bereft of any, much less diligent, efforts made by plaintiff in identifying the public entity responsible for the maintenance of the roadway at the site of the accident. Therefore, Brick's failure to disclose that defendant was responsible for the roadway did not thwart plaintiff's efforts. Brick was entitled to have plaintiff respond to its supplemental information request. See Wood v. Cnty. of Burlington, 302 N.J. Super. 371, 378 (App. Div. 1997) ("Once a public entity adopts a personalized notice of claim form pursuant to N.J.S.A. 59:8-6, which requires information that is more detailed than is otherwise required, it is incumbent upon a claimant to provide the information requested in the form.") (citation and internal quotation marks omitted). Requiring plaintiff to complete the supplemental claim form, and the delay, if any, in responding thereafter, did not "actively obscure[]" the identity of the true public entity that maintained the roadway. Leidy, supra, 398 N.J. Super. at 457.
Reversed. The matter is remanded for the entry of an order dismissing plaintiff's complaint as to defendant County of Ocean. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION