On appeal from Superior Court, Law Division, Ocean County.
Before Judges Pressler, Landau and Newman.
The decision of the court was delivered by
This appeal by plaintiff Jason Standard is from a summary judgment entered in favor of defendants Anthony E. Vas, Marie N. Domingues, and the New Jersey Automobile Full Insurance Underwriting Association, dismissing plaintiff's automobile accident negligence complaint as time-barred under N.J.S.A. 2A:14-2, despite the tolling provisions of N.J.S.A. 2A:14-21.
We reverse because the motion Judge failed to afford to the Supreme Court's opinion in Green v. Auerbach Chevrolet Corp., 127 N.J. 591, 606 A.2d 1093 (1992), the "prospective application" contemplated by that case and subsequent judicial decisions. Analysis of the authorities, however, prompts us to attempt to clarify interpretation of what properly constitutes "prospective application" in varying fact patterns.
The facts in the present case are undisputed. Plaintiff was born January 13, 1972. On February 18, 1991, at the age of nineteen, he was injured in the accident which is the subject of this action, filed November 12, 1993.
In Apgar v. Lederle Laboratories, 123 N.J. 450, 454-455, 588 A.2d 380 (1991), the Supreme Court recognized the existence of twenty years of uncertainty respecting the effect of L. 1972, c. 81, 87 (N.J.S.A. 9:17B-1 et seq.), which lowered the age of majority from twenty-one years to eighteen years, upon the legislatively unamended N.J.S.A. 2A:14-21. Despite enactment of L. 1972, c. 81, 87, the latter statute has continued to provide for tolling, inter alia, the two-year limitation for commencing a personal injury action (N.J.S.A. 2A:14-2), in cases where the right accrues while the plaintiff is under twenty-one, to permit commencement of the action "within such time as limited by said sections [e.g. N.J.S.A. 2A:14-2], after his coming to or being of full age . . .". N.J.S.A. 2A:14-21.
One year after Apgar, Green resolved the conflicting case law and legislative provisions, including any question presented by express statutory exception of the tolling provisions from the operative effect of the age-of-majority statute. It concluded that:
The tolling provision and the age-of-majority statute, read together, reflect a clear legislative purpose to lower the age of majority from twenty-one to eighteen for all purposes, including the establishment of eighteen as the age until which the statutes of limitation . . . are tolled. Green, 127 N.J. at 598.
However, given the persistent uncertainty over the issue since enactment of the lowered age-of-majority, the Court found that "the interests of Justice will be better served by prospective application of our decision." Green, 127 N.J. at 601.
Two decisions pertinent to the present issues were decided subsequent to Green. In Montells v. Haynes, 133 N.J. 282, 627 A.2d 654 (1993), an employment discrimination case, the Court referred to Green and its earlier decision in Coons v. American Honda Motor Co., 96 N.J. 419, 476 A.2d 763 (1984), cert. den., 469 U.S. 1123, 105 S. Ct. 808, 83 L. Ed. 2d 800 (1985), and concluded that prospective application should be given to its holding that a two-year statute of limitations was applicable. Consequently, the decision was held to apply "only to cases in which the operative facts arise after the date of the decision." Id., at 298 (emphasis supplied).
Several months after Montells, we decided Tobon v. 8894 Tonnele Ave. Corp., 267N.J. Super. 322 (App. Div. 1993), a personal injury case instituted on July 15, 1991, by a complainant whose accident occurred in 1979, and who became eighteen on December 29, 1988. Noting that the Supreme Court decision in Green was handed down on June 3, 1992, we reversed the grant of summary judgment which had been based upon the two-year statute. We held that, "since the operative facts in this case predate the Supreme Court's June 3, 1992, decision in Green, the two-year statute of limitations was tolled until plaintiff's twenty-first birthday." Id. at 325.
Plaintiff argues, not without some justification in view of the broad construction previously given to the phrase "in which the operative facts arise", that the two-year statute of limitations did not begin to ...