On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
King, Shebell and Baime. The opinion of the court was delivered by Shebell, J.A.D.
[236 NJSuper Page 530] At issue in this appeal is whether plaintiffs may amend their complaint to join several public entities as defendants where the public entities were served with a timely notice of claim by a different injured plaintiff involving the same accident. We granted defendants leave to appeal from an order denying their
motions for summary judgment against Margaret Tirpak and Louis Tirpak, her husband (plaintiffs). Plaintiffs instituted this action seeking damages for injuries suffered by Margaret resulting from an automobile accident which occurred on February 3, 1987, involving the Tirpak vehicle and one driven by defendant Joseph Pilonero (Pilonero). Pilonero alleges that he lost control of his vehicle as a result of the roadway being slippery.
On April 9, 1987, Pilonero filed a timely Notice of Tort Claims, in accordance with the Tort Claims Act (Act), N.J.S.A. 59:8-1 et seq., with defendants Township of Old Bridge, Borough of Sayreville and County of Middlesex (public entities). On December 18, 1987, Pilonero instituted suit against the three public entities alleging that they failed to properly maintain the roadway or warn against the slippery or icy road conditions where the motor vehicle accident occurred near the boundary of Sayreville and Old Bridge.
On July 14, 1988, plaintiffs filed suit against Pilonero for negligent operation of his vehicle and for loss of consortium. On October 25, 1988, plaintiffs filed a motion to amend their complaint against Pilonero to name the three public entities as defendants. The motion also requested that the court consolidate the Tirpak matter with the Pilonero matter. No notice of claim or motion seeking leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9 was filed by plaintiffs at any time.
Defendant county opposed the motion to amend and consolidate, arguing that plaintiffs' claim against it should be dismissed for failure to comply with the provisions of the Act. On November 17, 1988, the assignment judge entered an order permitting plaintiffs to amend the complaint to name the public entities and to consolidate the cases.
In or about late January and early February 1989, the three public entities filed motions for summary judgment for failure to file timely notices of claim pursuant to the Act. On March 3,
1989, the judge assigned to summary judgment motions entered an order denying summary judgment. She held that the notice issue was res judicata, as it was already decided in the November 17, 1988 order. The public entities then moved for and were granted leave to appeal to this court.
Plaintiffs assert that defendants should be estopped from claiming lack of notice because the public entities were served by Pilonero with Tort Claims notices pertaining to the motor vehicle collision. N.J.S.A. 59:8-8 provides:
A claim relating to a cause of action for death or for injury to persons or to property shall be presented as provided in this chapter not later than the ninetieth day after accrual of the cause of action . . . . The claimant shall be forever barred from recovering against the public entity if:
a. He failed to file his claim with the public entity within 90 days of accrual of his claim except as otherwise ...