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Ezzi v. De Laurentis

Decided: January 18, 1980.


Gibson, J.s.c.


[172 NJSuper Page 594] This is a negligence action arising out of a two-car collision which occurred on July 10, 1976. Plaintiff, driver of the first automobile, sued the driver and owner of the second automobile on July 5, 1978. Approximately a year later, defendants sought leave to join the Town of Hammonton as a third-party defendant, which motion was granted. R. 4:8-1. Neither plaintiff nor defendant has complied with the time and notice provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:8-8, as a result of which the third-party defendant has now moved for summary judgment. All parties agree that the material facts are not in dispute. R. 4:46-2. [172 NJSuper Page 595] There are two primary issues raised by this motion. First, may a defendant implead a public entity as a joint tortfeasor despite plaintiff's failure to comply with N.J.S.A. 59:8-8?*fn1 Secondly, assuming the first question is answered in the affirmative, is the right to implead a public entity in such a setting dependent on defendant's compliance? There are no appellate decisions which resolve these issues, and although relevant Law Division opinions exist as to the first question, they are in conflict. Research reveals no cases which speak directly to the second issue. The most frequently cited case, and one which is directly on point as to question number one, is Markey v. Skog , 129 N.J. Super. 192 (Law Div.1974). In that case Judge Pressler (then a County Court judge) held that a plaintiff's failure to file notice as mandated by the Tort Claims Act was not a bar to defendant's claim for contribution against a public entity. The judge concluded that the act must be read together with the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1 et seq. Since a claim for contribution against a joint tortfeasor does not accrue until the claimant has paid more than his pro rata share of a judgment, he should not be barred by the time and notice provisions which apply to plaintiff. Id. at 200-201, 322 A.2d 513; McGlone v. Corbi , 59 N.J. 86, 94 95

(1971). However, a contrary result was reached in Cancel v. Watson , 131 N.J. Super. 320 (Law Div.1974). Resting on a broader ground, the judge there ruled that governmental agencies may not be joined as a third-party defendant under the Tort Claims Act at all. This was held to be particularly true where the plaintiff had not acted affirmatively against the public entity involved. Ibid. That result was thereafter followed by the same trial judge in Kingan v. Hurston , 139 N.J. Super. 383 (Law Div.1976).

Since the Markey-Cancel conflict has remained unresolved by an appellate decision over the last several years, it is unlikely that whatever course is followed here will conclude the debate. Suffice it to say that this court chooses to follow the Markey decision on this issue. The 90-day notice provision under the act runs from the day of the "accrual of the cause of action." N.J.S.A. 59:8-8. As the Comments to N.J.S.A. 59:8-1 make clear, the term "accrual of cause of action shall be defined in accordance with existing law . . .." Based on the holding in McGlone v. Corbi , it is clear that defendant's claim for contribution does not accrue until it has paid more than its pro rata share of a judgment. The fact that such a claim is asserted outside of the time limits which would control a plaintiff should be irrelevant to its viability under the act. It is true, as pointed out in Cancel , that permitting such claims creates procedural difficulties, Cancel v. Watson, supra 131 N.J. Super. at 324-325; however, such difficulties would exist in any event where the governmental entity is originally joined as a tortfeasor, a result clearly contemplated by N.J.S.A. 59:9-3. This court is further persuaded by the several Law Division opinions which have cited Markey favorably, particularly since the reasoning of one was adopted by the Appellate Division. Rost v. Fair Lawn Bd. of Ed. , 137 N.J. Super. 76, 79 (App.Div.1975); Dambro v. Union Cty. Park Comm'n , 130 N.J. Super. 450, 458 (Law Div.1974); Wuethrich v. Delia , 134 N.J. Super. 400, 408 (Law Div.1975); Aiello v. Moore , 146 N.J. Super. 509, 510 (Law Div.1976); Vedutis v. Tesi , 135 N.J. Super. 337, 344 (Law Div.1975),

aff'd o.b. 142 N.J. Super. 492 (App.Div.1976). See, also, Anske v. Palisades Park , 139 N.J. Super. 342, 348 (App.Div.1976). It is the opinion of this court, therefore, that plaintiff's noncompliance with the act will not bar the within third-party claim.*fn2

None of the reported cases, however, speaks directly to the second issue being examined here -- that is, whether defendants' own noncompliance with N.J.S.A. 59:8-8 is fatal to the third-party claim. Having accepted the conclusion that the time limits controlling a plaintiff are not dispositive of a defendant's right to seek contribution from a public entity, one may nevertheless reasonably ask why that defendant should not be required to comply. The procedural requirements of chapter 8 clearly apply to all claims:

No action shall be brought against a public entity under this act unless the claim upon which it is based shall have been presented in accordance with the procedure set forth in this chapter. [ N.J.S.A. 59:8-3; emphasis supplied].

Despite this mandate, the net effect of the Markey decision was to permit the joinder of the public entity although there was no compliance by defendant there. N.J.S.A. 59:8-8. The clear implication is that the court did not feel that such compliance was critical. At least one Law Division opinion has read Markey to so hold. Lameiro v. West New York Bd. of Ed. , 136 N.J. Super. 585, 590, n.1 (Law Div.1975). Indeed, Judge Pressler has interpreted the case as so holding. Speer v. Armstrong , 168 N.J. Super. 251, 256 (App.Div.1979). See, also, Pressler, 1979 N.J. Court Rules , Comment to R. 4:8-1 at 642. The Markey opinion itself, however, posed the issue only in terms of plaintiff's noncompliance. Markey v. Skog, supra 129 N.J. Super. at 196. Although it is clear from the opinion that it was the view of the court that the purposes of the notice provisions were subordinate to the "overriding equities which underpin the contribution laws" (Id. at 205), nothing was suggested as to why it

was necessary to eliminate procedural compliance by a defendant to achieve those equities. It is at this point, therefore, that this court must respectfully depart from Markey.

The language of the Tort Claims Act is clear and unambiguous with respect to its procedural requirements. N.J.S.A. 59:8-3. Having already concluded that the Joint Tortfeasors Contribution Law can be read as not being incompatible with the Tort Claims Act, it cannot be suggested that the combination of these acts creates an ambiguity. Cf. Vedutis v. Tesi, supra. Nor is this a situation where the governmental agency is estopped by its actions from asserting noncompliance, as was the case in Anske v. Palisades Park, supra. Under the circumstances there is no justification for this court ignoring the language which mandates that "no action" shall be maintained unless it is presented in accordance with the procedures outlined. N.J.S.A. 59:8-3.

This conclusion is not reached without recognition of the practical problems it creates. For example, a dismissal of the third-party action at this point would necessarily be without prejudice since, as shown, defendants' action against the municipality has still not accrued.*fn3 This same conclusion was reached in Reale v. Wayne Tp. , 132 N.J. Super. 100, 111 (Law Div.1975), where the court was confronted with a claim against a municipality ...

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