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Demendoza v. New Jersey Transit Bus Operations Inc.

March 20, 1984

BLANCA HURTADO DEMENDOZA, PLAINTIFF,
v.
NEW JERSEY TRANSIT BUS OPERATIONS, INC. AND NEW JERSEY TRANSIT CORP., DEFENDANTS



Coburn, J.s.c.

Coburn

[194 NJSuper Page 609] This matter is before me on plaintiff's motion for leave to file late notices of claim under the New Jersey Contractual Liability

Act, N.J.S.A. 59:13-1 et seq., and the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq.

Both causes of action accrued when plaintiff sustained personal injuries while riding as a passenger in defendants' bus. It had stopped short to avoid a collision with an unidentified truck which for purposes of this case must be treated as an uninsured vehicle. The contract action is based upon the obligation of the self-insured state agency defendants to provide the equivalent of uninsured motorists protection for their passengers. Mortimer v. Peterkin, 170 N.J. Super. 598 (App.Div.1979). The tort action rests on allegations of negligence regarding operation of the bus. The accident occurred December 28, 1982. The notice of motion was filed on December 28, 1983. Defendants contend that this court does not have discretion to grant relief because the motion, though filed within a year of the accident, was not returnable until after a year. Resolution of this aspect of the controversy projects an issue of statutory construction heretofore unaddressed by the courts of New Jersey. Defendants also argue that plaintiff has failed to show sufficient reasons for her original failure to file timely notices of claim.

The pertinent language of the New Jersey Contractual Liability Act and the New Jersey Tort Claims Act with respect to the issues is essentially the same. The former provides:

A claimant who fails to file notice of his claim within 90 days as provided in section 5 of this chapter, may, in the discretion of a judge of the Superior Court of the State of New Jersey, be permitted to file such notice at any time within 1 year after the accrual of his claim provided that the State has not been substantially prejudiced thereby. Application to a judge of the superior court for permission to file a late notice of claim shall be made upon motion based upon affidavits setting forth sufficient reason for the failure to file his notice of claim within the period of time prescribed by section 5 of this chapter. [ N.J.S.A. 59:13-6; emphasis supplied.]

The latter provides:

A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the superior court, be permitted to file such notice at any time within 1 year after the accrual of his claim provided that the public entity has not been substantially

prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion based upon affidavits showing sufficient reasons for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act; provided that in no event may any suit against a public entity arising under this act be filed later than 2 years from the time of the accrual of the claim. [ N.J.S.A. 59:8-9; emphasis supplied.]

I. TIMELINESS OF THE MOTION

Read literally, the italicized words of both statutes require filing of the judicially permitted notice of claim within one year. However, defendants concede that if the motion were originally returnable within the year, the court could subsequently issue a valid order permitting a claim filing after a year. Thus, they properly recognize that literalism in this context would produce anomalous results. When literal application would yield anomaly, our courts expand or limit the legislature's words "according to the manifest reason and obvious purpose of the law." Alexander v. N.J. Power & Light Co., 21 N.J. 373, 378 (1956); State v. DeVincenzo, 189 N.J. Super. 201, 203-204 (Law Div.1983). In that regard it is noteworthy that literal application of the language under consideration has been rejected implicitly in S.E.W. Friel Co. v. N.J. Turnpike, 73 N.J. 107, 110-111 (1977), Keller v. County of Somerset, 137 N.J. Super. 1 (App.Div.1975), Wade v. N.J. Turnpike Authority, 132 N.J. Super. 92 (Law Div.1975), and Marino v. Union City, 136 N.J. Super. 233 (Law Div.1975). All of those cases involve late claim motions filed and returnable within the year, but granted thereafter.

Defendants' position rests largely on references by the Supreme Court in S.E.W. Friel Co., supra, to the fact that in that case the motion was originally returnable within the year. 73 N.J. at 111, 120. I am satisfied that those references were not intended to express a deliberate policy on this issue to be followed by the trial courts. Compare, State v. Rush, 46 N.J. 399, 416 (1966), with In re Nicholson, 69 N.J. Super. 230, 235-236 ...


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