On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-1594-00.
Before Judges Coburn, Collester and Alley.
The opinion of the court was delivered by: Coburn, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 18, 2002
This is an action for personal injuries arising out of a two-car automobile accident. A week before trial, defendant's attorney served plaintiffs' attorney with a motion for summary judgment asserting that plaintiffs' claims were barred by the statute of limitations. Plaintiffs' attorney admitted the complaint was filed twenty-nine days late, but argued that the defense had been waived. The judge granted defendant's motion. Plaintiffs appeal, and we reverse.
On January 23, 1998, in Monroe Township, defendant drove her car across the center line of a road into the front of plaintiffs' car, which was stopped for a traffic light. Plaintiff Martha White sustained serious injuries and incurred over $55,000 in medical expenses. Her daughter, Marva, suffered relatively minor injuries. They promptly retained an attorney, who sent a claim letter to defendant's insurance company in March. Beginning in April and continuing through September 1999, the insurance company corresponded with plaintiffs' attorney on a number of occasions, thereby gathering information about the accident and injuries. It is reasonable to infer that the insurance company was also in contact with its insured during this period. Plaintiffs' attorney filed the complaint on February 22, 2000, two years and twenty-nine days after the accident. The record does not indicate when the defendant was served, but on June 26, 2000, plaintiffs' attorney sent copies of the summons and complaint, along with proof of service, to defendant's insurance company.
Defendant's attorney filed an answer on July 12, 2000, denying all the allegations of the complaint and asserting eighteen affirmative defenses, many of which had no possible basis in fact. They included reliance on the entire controversy doctrine, the Worker's Compensation Act, waiver, laches, res judicata, lack of personal jurisdiction, forum non conveniens, and the frivolous claims statute. However, the fifth defense was statute of limitations.
Following a period of discovery, the case was listed for mandatory arbitration pursuant to R. 4:21A-1(a)(1). On January 4, 2001, the arbitrator found defendant entirely at fault, and awarded Marva $7,500 and Martha $225,000. In that proceeding, defendant's attorney did not assert that the action was barred by the statute of limitations.
Defendant's attorney filed a timely request for a trial de novo, and continued to engage in discovery. On February 12, defendant answered plaintiffs' interrogatories. Question 12 stated: "If you intend to rely on any statute . . . state the exact title and section." Defendant's answer was this: "N.J.S.A. 39:1-1 et seq."
On February 13, 2001, defendant's attorney deposed plaintiff Martha White without making any inquiry respecting a matter that might be relevant to a statute of limitations defense. Around that time, plaintiffs' attorney began acquiring and paying for expert reports. In March 2001, defendant's attorney filed a motion to extend the time for discovery and to adjourn the trial date. Plaintiffs' attorney joined in the motion, stating that he intended to obtain reports from a vocational expert and an economic expert. The motion was granted on April 20, 2001, extending discovery to June 15, 2001, and setting the trial for June 25, 2001.
On June 18, 2001, defendant's attorney served the motion for summary judgment which asserted a right to dismissal of the complaint based on the statute of limitations. At oral argument before us, defendant's attorney conceded that he first became aware of the basis for that defense when reviewing the file shortly before he filed the motion.
Plaintiffs' action is governed by N.J.S.A. 2A:14-2, which requires the filing of personal injury actions within two years after accrual, but defendant's reliance on that statute is also subject to the common law of limitations. Galligan v. Westfield Centre Ser., Inc., 82 N.J. 188, 191 (1980). The relevant common law principle is that a defendant otherwise entitled to a statute-of-limitations defense may waive that defense. Williams v. Bell Tel. Lab., Inc., 132 N.J. 109, 118-20 (1993); Zaccardi v. Becker, 88 N.J. 245, 256-60 (1982). In Williams, defendant included a statute-of-limitations defense in its answer and never mentioned the subject again at any stage of the proceedings until after the jury returned a verdict. 132 N. J. at 113-14. In upholding the trial court's rejection of defendant's post-verdict motion for judgment based on the statute, the Court said this: No unforeseen or insurmountable developments intruded in this litigation to inhibit in any way Bell's pursuit of its limitations defense. The mere one-time mention of the statute in Bell's Answer -- filed in 1986 -- should not serve to preserve that otherwise-unasserted defense through the entire three-and-one-half-year span of the litigation, through preparation for and conduct of a protracted trial, and into a post-verdict submission, in the course of which both parties undoubtedly expended large amounts of time, money, and energy. The statute is designed to order the business of litigants and courts. In the circumstances of this appeal -- in which a failure to find waiver would only frustrate those objectives -- we refuse to apply the statute to render void an otherwise legitimate claim. [132 N.J. at 119-20 (citations omitted).]
In Zaccardi, plaintiffs filed a timely action which was dismissed without prejudice for failure to answer interrogatories. 88 N.J. at 249-50. Despite the dismissal, the case remained on the active trial calendar for seventeen months and was repeatedly listed for trial, and then adjourned for further discovery without objection by defendants. Id. at 250. At the end of that time, plaintiffs filed a motion to vacate the dismissal; the motion was granted over defendants' objection that the dismissal was a final order, a point never before raised. Id. at 257. Defendants appealed, and immediately following reversal of the vacation order, plaintiffs filed a second complaint, identical to the first. Id. at 255. Defendants moved for summary judgment on the ground that the second complaint was barred by the statute of limitations. Id. at 249-57.
The Court held that defendants were not entitled to rely on a statute of limitations defense for two reasons. First, defendant's conduct throughout the seventeen months was inconsistent with maintenance of the position that the action was barred by the statute of limitations. Second, defendant's behavior led plaintiffs to the ...