On certification to the Superior Court, Appellate Division.
Chief Justice Wilentz and Justices Clifford, Handler, Pollock, and Stein join in this opinion.
Plaintiff instituted this action by filing a Complaint setting forth various causes of action arising out of defendant's termination of her employment. The jury returned a verdict in plaintiff's favor on her charge that defendant's employees had given defamatory statements to the Essex County Prosecutor's Office. The trial court denied defendant's post-verdict motion seeking judgment in its favor on the basis of the statute of limitations applicable to defamation actions, N.J.S.A. 2A:14-3. Although defendant had pleaded the defense of the statute of limitations in its Answer, the trial court held that because defendant had made no reference to that statute at any point in the proceedings, which included numerous pretrial and trial motions, it had waived the statute-of-limitations defense.
The Appellate Division, in an unreported opinion, reversed and entered judgment for defendant, holding that the statute of limitations had not been waived and that plaintiff's action was time-barred. The court observed that the trial court's failure to have applied the limitations bar was "particularly inappropriate" because the judgment in plaintiff's favor "[could not] be sustained in any event," inasmuch as the court had given the jury an incorrect charge on the burden of proof required of plaintiff to establish abuse of a conditional privilege. For the latter proposition the Appellate Division relied on Erickson v. Marsh & McClennan Co., 117 N.J. 539, 569 A.2d 793 (1990), decided after the trial of this case.
We granted plaintiff's petition for certification, 127 N.J. 554 (1991), and now affirm in part, reverse in part, and remand for a new trial.
Plaintiff, Barbara Williams, worked for defendant, Bell Telephone Laboratories, Inc. (Bell), for twelve years, from 1972 until her dismissal in October 1984. In 1983, Bell appointed Williams as campus project manager of the company's Aid to Black Colleges (ABC) program. After the company received an anonymous letter claiming that Williams had embezzled or otherwise misused corporate funds, Bell conducted an audit of the ABC program. The company claimed that the audit had revealed improprieties by Williams and her immediate supervisor, and therefore it fired both employees on October 10, 1984.
On November 30, 1984, the company's auditor and several other Bell representatives met with an assistant in the office of the Essex County Prosecutor to disclose the results of the audit. Bell claims that none of its representatives explicitly accused Williams of violating the law. Although Bell informed the prosecutor in January 1985 that it was no longer pursuing the matter, the prosecutor decided to continue his investigation. By letter dated June 10, 1985, the prosecutor informed Williams that she was the target of a criminal investigation, but for reasons not disclosed in the record the prosecutor's office later dropped the investigation.
In January 1986 Williams filed suit against Bell, and in March 1986 submitted an Amended Complaint containing fourteen causes of action, characterized in her petition for certification as follows:
Breach of an express contract, Count One; breach of an implied contract, Count Two; breach of an implied covenant of good faith and fair dealing, Count Three; breach of a duty to investigate [alleged employee wrongdoing] prior to discharge, Count Four; handicap discrimination, Count Five; defamation to the State Department of Unemployment and Disability Insurance, Count Six; intentional reporting of a criminal activity to the State Division of Unemployment, Count Seven; reckless disregard for the truth of such statement to the Division of Unemployment, Count Eight; negligent making or publishing of statement that was not true to the Essex County Prosecutor's Office, Count Nine; intentionally making a statement alleging criminal activity to the Essex County Prosecutor's Office, Count Ten; recklessly making a false statement to the Essex County Prosecutor's Office of criminal conduct, Count Eleven; wrongful termination and violation of public policy, Count Twelve; intentional infliction of emotional distress, Count Thirteen; and negligent infliction of emotional distress, Count Fourteen.
Bell contended in its Answer that the one-year statute of limitations, N.J.S.A. 2A:14-3, barred Williams's claims sounding in defamation.
After the parties had completed discovery, Bell moved to dismiss all claims except those asserted under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42. The trial court granted the motion in part, leaving intact only those counts asserting racial discrimination, handicap discrimination (count five), defamation occurring only during the meeting with the prosecutor (counts nine, ten, and eleven), and negligent infliction of emotional distress (count fourteen).
The ensuing trial lasted for eleven days. At the close of Williams's case, Bell moved to dismiss all remaining claims -- the racial-discrimination claim and those embodied in counts five, nine, ten, eleven, and fourteen. The court dismissed the racial-discrimination and negligent-infliction-of-emotional-distress counts, but put defendant to its proofs on the handicap-discrimination count and on the claims that alleged defamation during the meeting with the prosecutor. At the close of all the evidence, Bell renewed its application to dismiss the handicap-discrimination and defamation claims. The court again denied the motion in respect of the defamation claims and reserved decision on the handicap-discrimination claim. (After the jury returned its verdict in plaintiff's favor on the defamation counts, the court entered judgment for Bell on the handicap-discrimination count.)
At no time after filing its Answer did Bell assert its statute-of-limitations defense, either by way of pretrial motion or motion during the course of trial. The trial court submitted to the jury only the ninth, tenth, and eleventh counts of the Amended Complaint, which alleged that Bell had negligently, recklessly, or intentionally defamed Williams in the company's November 1984 meeting with the prosecutor. In respect of those counts Bell asserted, and the court agreed, that the company enjoyed a qualified privilege to present the ...