July 23, 2007
ESTATE OF JANIE REED, IRIS UNDERWOOD AS ADMINISTRATRIX AD PROSEQUENDUM, PLAINTIFF-APPELLANT,
ROOSEVELT CARE CENTER, L.L.C., MIDDLESEX COUNTY IMPROVEMENT AUTHORITY, JOHN F. KENNEDY MEDICAL CENTER, AND JOHN DOES 1-50, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6364-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 6, 2007
Before Judges Stern and A. A. Rodríguez.
Plaintiff, administratrix of the estate of Janie Reed, appeals from a final judgment resulting from orders entered on October 7, 2005, dismissing plaintiff's complaint against the Roosevelt Care Center ("Roosevelt"), and June 16, 2006 dismissing the complaint against the JFK Medical Center ("JFK"). The complaint against Roosevelt was dismissed for failure to file a timely notice of claim pursuant to N.J.S.A. 59:8-8 of the New Jersey Tort Claims Act ("TCA"), and the complaint against JFK was dismissed for failure to comply with the statute of limitations.
On this appeal plaintiff challenges the dismissal as to Roosevelt under the TCA on the grounds that the notice could be extended beyond the year because she "had no knowledge of the public entity status of Roosevelt Care Center" and "Roosevelt Care Center has suffered no undue prejudice as a result of the delay in filing a notice of claim." With respect to JFK, plaintiff argues that "the statute of limitations was not offended by the late filing of an amended complaint because the facts of this case satisfy the two prong test set forth in R. 4:9-3," "dealing with relation back," and defendant was given sufficient notice and suffered no prejudice.
This is a malpractice case arising out of an accident that occurred while plaintiff's decedent was a patient at Roosevelt. Plaintiff's decedent was taken to JFK after the accident. A complaint was filed against Roosevelt, the Middlesex County Improvement Authority, which operated Roosevelt, and the John F. Kennedy Medical Foundation in August 2004.*fn1 A "Notice of Tort Claim," dated August 26, 2004, accompanied the complaint. A prior order in favor of plaintiffs permitting the late filing was vacated after Roosevelt obtained counsel. The trial court denied a late filing, and the complaint against Roosevelt was dismissed for failure to serve a timely notice. The JFK Foundation was dismissed on summary judgment, but the order of May 13, 2005 permitted plaintiff to file an amended complaint against JFK as a direct defendant.
The accident occurred on or around July 20, 2002, as a result of which decedent was transferred from Roosevelt to JFK. After surgery she remained at JFK for fifty-two days but ultimately died two days after her return to Roosevelt, on September 13, 2002. The trigger for purposes of both the TCA and statute of limitations could be no later than the death.
The administratrix was not appointed until February 2004. She retained counsel approximately five months later, and claims to have learned only thereafter that Roosevelt was owned and operated by the Middlesex Improvement Authority, a public entity.
The trial judge dismissed the complaint against J.F.K., stating that
I don't think that the Court has any alternative but to -- to grant the motion as to the statute of limitations argument in reference to this matter. The affidavit of merit is of no moment as a result of that.
So, therefore, I'm going to grant the motion because of non-compliance to the statute of limitations in this matter.
We have scoured the motion papers, and the argument of counsel on the motion, and find no reference in the moving papers or at argument to an application under R. 4:9-3. Before us, plaintiff argues:
The statute of limitations was not offended by the late filing of an amended complaint because the amendment filed in August of 2005 related back to the original complaint filed in August of 2004. The mistake made by prior coun[sel] was not understanding the relationship between J.F.K. and the Foundation. Thus, at most the party plead had simply been misidentified in the initial pleading.
Accordingly, plaintiff now relies on R. 4:9-3 to defeat the dismissal of JFK on statute of limitations grounds,*fn2 and defendant does not seek to preclude its consideration on the grounds it was not relied upon in the trial court. Rather JFK says:
In the present matter, JFK and the Foundation are separate legal entities and there has been no showing that JFK received notice of the institution of this action prior to the expiration of the statute of limitations. The Foundation's President certified that it "does not own, operate, manage or control [JFK]." Furthermore, Reed's death occurred on September 13, 2002, and the two-year statute applicable to her claims expired on September 13, 2004. The record indicates that Plaintiff did not serve the Foundation with the original complaint until September 22, 2004.
Thus, JFK could only have received notice of the pendency of this lawsuit sometime after the expiration of the statute of limitations and, therefore, Rule 4:9-3 did not apply.
Additionally, Plaintiff is not entitled to receive the benefits of 4:9-3 because she failed to pursue her claims against JFK diligently. Pb 10-11.
Here, the Foundation's answer to the original complaint put Plaintiff on notice that she had commenced the action against the wrong party. On December 17, 2004, the Foundation's counsel sent correspondence reiterating the Foundation's lack of involvement in this case. Nevertheless, Plaintiff inexplicably waited approximately four months to file a motion to amend her complaint to name JFK as a defendant.
Furthermore, after the motion was granted, Plaintiff waited an additional three months to file her amended complaint. Plaintiff has simply failed to act with the diligence necessary to obtain the benefit of the relation back doctrine under Rules 4:9-3 and 4:26-4.
At oral argument before us there was no dispute that there was no service of the original complaint on the Foundation prior to the expiration of the statute of limitations. Accordingly, R. 4:9-3 cannot be used to preclude the dismissal on statute of limitations grounds. We so hold in the absence of consideration of the issue by the trial judge because the issue was not raised with her. In any event, R. 4:9-3 requires the proper "party to be brought in by amendment" to have received notice of the claim "within the period provided by law for commencing the action."
In dismissing the claim against Roosevelt, the motion judge said:
Accrual of a claim occurs when the tort is committed or on the date the accident occurs. After a one year period provided by the statute, a court lacks jurisdiction or discretion to relieve a claimant from its failure to file a . . . motion of claim or notice of claim. Moreover, in no event may any suit against a public entity or public employee arising under this act  be filed later than two years from the time of accrual of the claim.
The movant states in his certification that a period of one year from the medical care issue had expired as of the time that the plaintiff's prior law firm was retained. As stated above, after the one year period provided by the statute, a Court lacks jurisdiction or the discretion to relieve the claimant from his failure to file a timely notice of claim.
Therefore, the motion to file a late notice of claim is denied, and the motion to dismiss on that issue is granted.
Counsel for plaintiff asked the judge whether the basis of the ruling was that the judge did not "have discretion to extend [the notice period] beyond one year," and the judge replied "yes."
A public entity must be notified under the TCA within ninety days of the accrual of the action. N.J.S.A. 59:8-3, 8-8. N.J.S.A. 58:8-9 permits extension of the filing time for the notice to one year after the accrual provided there are "extraordinary circumstances" for the late filing and that the public entity is not prejudiced. See Eagan v. Bozarsky, 158 N.J. 632, 641 (1999); Lowe v. Zarghami, 158 N.J. 606, 625 (1999). In Lowe, the notice was filed outside the ninety day window, but within a year, and the Court found that the lack of clarity concerning defendant's public employee status "should be considered in determining whether plaintiff has presented 'extraordinary circumstances.'" Id. at 625. The Court noted, however, that Lowe filed her claim within the two year statute of limitations. Id. at 629.
However, in Eagan, plaintiff "did not file a notice of late claim nor did he file a complaint within one year of the accrual of his claim," although the complaint was filed within the two year statute of limitations. 158 N.J. at 640. The Court pointed out that in one of the cases relied on in Lowe, "we allowed the filing of a late claim two years beyond the accrual of plaintiff's claim." Id. at 641-42 (citing Feinberg v. State, D.E.P., 137 N.J. 126, 135 (1994)) (in which the defendants "failed to disclose [to plaintiff's counsel the identity of the responsible public entity defendant] for two years beyond the accrual of the claim"). As the Court said in Eagan:
We do not think that the Legislature contemplated that the one-year ban would be used to bar a plaintiff-patient from pursuing his medical malpractice claim against a physician whom he had no reason to believe was a public employee. In such unique circumstances, we find that the Legislature intended the one-year ban provided under N.J.S.A. 59:8-9 to be tolled. Accordingly, plaintiff should be entitled to file a notice of late claim. [Eagan, supra, 158 N.J. at 642-43.]
Eagan teaches us that there are "extraordinary circumstances" in which the one year period embodied in N.J.S.A. 59:8-9 may be enlarged, and we remand the matter for the trial judge's reconsideration of the issue which seems to have been decided on a per se basis.
Neither Lowe nor Eagan relaxed or were decided under the two year statute of limitations referred to in N.J.S.A. 59:8-8 and 59:8-9, notwithstanding the reference to Feinberg. This does not appear to be a "discovery rule" case, and we do not address the statute of limitations or the date it commenced to run for purposes of the action against Roosevelt. However, as we favor consideration of claims on "their merits," Lowe, supra, 158 N.J. at 629; Feinberg, supra, 137 N.J. at 135, and the action was commenced within two years of decedent's death at Roosevelt, we remand for further proceedings as to the claim against Roosevelt. We do not preclude reconsideration of the TCA notice issues.
The judgment is affirmed with respect to JFK, but reversed and remanded for further proceedings as to Roosevelt. We do not retain jurisdiction.