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S.E.W. Friel Co. v. New Jersey Turnpike Authority

Decided: April 20, 1977.

S.E.W. FRIEL COMPANY AND CHARLES DUDLEY TURNER, PLAINTIFFS-APPELLANTS,
v.
NEW JERSEY TURNPIKE AUTHORITY, DEFENDANT-RESPONDENT



On certification to the Superior Court, Appellate Division.

For affirmance in part and reversal and remandment in part -- Justices Mountain, Pashman, Clifford and Schreiber and Judge Conford. Opposed -- None. The opinion of the court was delivered by Clifford, J.

Clifford

[73 NJ Page 109] The trial court denied plaintiffs' motion for leave to file a late notice of claim pursuant to the appropriate section (N.J.S.A. 59:8-9) of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. (Supp. 1976-77). The Appellate Division, in an unreported opinion, affirmed, holding that (a) the defendant New Jersey Turnpike Authority was a public entity within the meaning of the Tort Claims Act; (b) therefore the provision of the Act barring subrogation actions (N.J.S.A. 59:9-2(e)) served to preclude the claims of plaintiff S.E.W. Friel Company; and (c) the personal injury claim of plaintiff Charles Dudley Turner was foreclosed because he had not sought permission to file a late claim within one year from the date that his cause of action had accrued, as required by the statute.*fn1

We granted certification, 70 N.J. 520 (1976), to review these determinations.

I

Plaintiff Turner suffered personal injuries as the result of a multi-vehicle accident on the New Jersey Turnpike on October 24, 1973 while he was driving a truck of his employer, plaintiff Friel. Both the truck and its cargo sustained damage. Friel's insurance carrier, Underwriters Adjusting Company, sought to pursue its subrogation claims, it having paid Friel on account of the vehicle and cargo damages and also on account of the ongoing workers' compensation claim of Turner. To that end it retained the law firm of Lum, Biunno & Tompkins.

On October 7, 1974, more than eleven months after the accident, that firm brought a motion on behalf of both plaintiffs seeking leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9. Accompanying the notice of

motion was an affidavit dated October 3, 1974, of Dennis F. Drasco, an attorney associated with the firm, setting forth, inter alia, that both the plaintiffs and the insurance carrier were non-residents of New Jersey; that the settlement of the Friel property damage claim did not take place until more than 90 days after the date of the accident; and that plaintiff Turner sustained "multiple fractures of the arms, ribs and skull and had his spleen removed." The affidavit noted particularly that the workers' compensation claim had not been concluded, and continued:

[A]lthough I have attempted to ascertain whether Mr. Turner has retained counsel in New Jersey for purposes of bringing a personal injury action on his own behalf, neither he nor his Workmen's Compensation attorney has responded. This Motion is made to protect both Underwriters' interests and Mr. Turner's since he no doubt will bring a third party action above that which Underwriters is entitled to in subrogation of any Workmen's Compensation judgment awarded.

Also made part of the moving papers was a Notice of Claim which disclosed that Turner had incurred bills of over $2500 for surgery and over $6500 for hospitalization.

Mr. Drasco further recited his legal position that it was unnecessary to file a notice of claim against the New Jersey Turnpike Authority because the Authority did not "come within the purview of the Tort Claims Act"; but that, in effect, leave was being sought to file a late notice ex abundanti cautela.

The motion was returnable on October 18, 1974, still within one year of the accident. It was adjourned from that date to October 25, 1974, to be heard along with several other motions on cases relative to the same occurrence (now commonly referred to as the "Turnpike accidents"); and by agreement of counsel the court undertook to consider the motion on the papers submitted, without oral argument. The trial judge reserved decision and filed an opinion on January 8, 1975, holding that the Turnpike Authority is within the provisions of the Act. He denied

the motion as to plaintiff Friel because of the statutory prohibition against subrogation claims, and as to plaintiff Turner because the information contained in the notice of claim was "not sufficient." A letter making slight amendment to the opinion was filed on January 10, 1975.

Thereafter plaintiffs moved under R. 4:50-1 "for relief from" the decision denying their applications; their intention being "to clarify the issues on the initial application and not * * * as a separate application." The moving papers were accompanied by an affidavit of plaintiff Turner and by another affidavit from Mr. Drasco. Turner's document related that he was taken from the accident scene to Christ Memorial Hospital, Jersey City, where he remained in critical condition in intensive care from October 24, 1973 until December 5, 1973; that thereafter he retained a Maryland attorney to prosecute his workers' compensation claim (Turner was a resident of Maryland and his employer, Friel, likewise had its home office in Maryland); that prior to October 24, 1974 he told his Maryland attorney he wanted to institute suit in New Jersey against all potential negligent parties; that he asked the attorney to "inquire whether the firm of Lum, Biunno & Tompkins, which had entered the case on behalf of [his] employer to protect their subrogation and lien interest, would be interested and willing to represent [his] interests and bring a personal injury action * * * against all potential negligent parties"; and that he had since been assured by that firm of their representation. Turner further averred that as a resident of Maryland he was unaware of New Jersey's Tort Claims Act and particularly of its notice provisions; that as he was totally incapacitated for longer than the statutory 90 days period, he did not consult with the workers' compensation carrier until after the 90 days had elapsed; and that as a consequence of his injuries he was confined to his home, after release from the hospital, until October, 1974.

Mr. Drasco's affidavit related that at the time he had made his earlier affidavit in October, 1974, he had not yet discussed

the matter with Turner; but that during the pendency of the motion to file a late notice of claim he was able to communicate with Turner, who retained the firm to prosecute his personal injury action. On the basis of this additional information plaintiff Turner asked the trial court to allow the filing of a late notice of claim. After further argument this motion too was denied, the trial judge now taking the position that his earlier conclusion had stemmed from there being "nothing before me in that original application from Turner at all and that is why I denied it."*fn2

An appropriate order was filed barring all plaintiffs' claims. As indicated heretofore, the Appellate Division affirmed.

II

To the extent that the court below held that the New Jersey Turnpike Authority was a public entity within the meaning of the Tort Claims Act and that plaintiff Friel Company's claims were barred by reason of the prohibition against subrogation claims, the judgment is affirmed.

In response to the somewhat haphazard and even arbitrary treatment the historical "general rule" of sovereign immunity had received,*fn3 the ...


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