On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3600-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 24, 2007
Before Judges Graves and Alvarez.
This appeal by plaintiff Takeeta Jennings, is from summary judgment entered in favor of defendants, Bap Gindhart, M.D., Helene Fuld Medical Center and Capital Health Systems, Inc., dismissing plaintiff's medical malpractice complaint as time-barred pursuant to N.J.S.A. 2A:14-2, despite the tolling provisions of N.J.S.A. 2A:14-21. We affirm.
The facts are undisputed. Plaintiff was born April 5, 1984; her birth was attended by Bap Gindhart, M.D., now deceased. Shortly after birth she displayed only minimal movement of her right arm and was soon thereafter diagnosed as suffering from brachial plexus palsy. Plaintiff's complaint against the medical providers was filed April 5, 2006, the day she turned twenty-two.
The statute of limitations applicable to plaintiff's claim is two years, as set forth in N.J.S.A. 2A:14-2. The running of the statute is tolled until a claimant's "coming of age" pursuant to N.J.S.A. 2A:14-21. In 1973, when the age of majority was lowered from twenty-one to eighteen, N.J.S.A. 9:17B-1, no amendment was made to the tolling statute. This age of majority statute "generated twenty years of uncertainty over the question whether that enactment was intended to change from twenty-one years to eighteen years the age until which that statute of limitations is tolled." Green v. Auerbach Chevrolet Corp., 127 N.J. 591, 592 (1992). In Green, the Court decided the relevant statutes of limitation are tolled only until a plaintiff attains the age of eighteen, and the holding was given prospective application. Id. at 600. The "prospective application" question itself then generated litigation. In Standard v. Vas, we found prospective application meant a claimant had "two years from the date of Green, two years from the date of accident, or two years from attaining the age of eighteen, whichever is the later," to file a complaint. 279 N.J. Super. 251, 256 (App. Div. 1995).
Plaintiff contends that Prescott v. PNC Bank Corp., 332 N.J. Super. 530 (App. Div. 2000), and not Standard, should control the determination of whether this plaintiff's cause of action is in fact time-barred. The Prescott Court stated that when a court addresses the retroactivity of its decisions, it has four options:
"(1) make the new rule of law purely prospective, applying it only to cases whose operative facts arise after the new rule is announced; (2) apply the new rule to future cases and to the parties in the case announcing the new rule, while applying the old rule to all other pending and past litigation; (3) grant the new rule limited retroactivity, applying it to cases in (1) and (2) as well as to pending cases where the parties have not yet exhausted all avenues of direct review; and, finally, (4) give the new rule complete retroactive effect, applying it to all cases, even those where final judgments have been entered and all avenues of direct review exhausted." [Supra, 332 N.J. Super. at 534 (quoting Coons v. Am. Honda Motor Co., Inc., 96 N.J. 419, 425 (1984), cert. denied, 469 U.S. 1123, 105 S.Ct. 808, 83 L.Ed. 2d 800 (1985)).]
The Prescott court maintained that Standard's decision about prospective application actually "changed the purely prospective option chosen by the Green Court to one of limited prospectivity." Id. at 536. Prescott, however, was decided in an entirely different context.
Prescott concerned a sexual harassment complaint under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, as did Montells v. Haynes, 133 N.J. 282 (1993). Montells found that a single statute of limitations should apply to all LAD claims, as these causes of action "are most like personal-injury claims." Supra, 133 N.J. at 286. Accordingly, the Court decided the two-year statute of limitations for personal injury claims, and not the general six-year statute of limitations, applied. Id. at 285-86. Because of the lack of clarity in prior law, Montells directed that its holding should be applied only prospectively. In other words, this rule "applie[d] only to cases in which the operative facts arise after the date of the decision." Id. at 298. Prior law "was sufficiently murky" to warrant a purely prospective application in the interest of justice. Ibid.
In Prescott, we chose not to follow the Standard analysis in the LAD context when considering changes in statutes of limitations and questions of prospectivity. Prescott, supra, 332 N.J. Super. at 537. In Prescott, this court stated "we do not quarrel with the logic . . . or reasonableness of [Standard's] conclusion." Ibid. However, in the interest of protecting a LAD claimant whose cause of action accrued before the Montells decision, Prescott found that "elemental fairness require[d] that the plaintiff have a hearing on the merits of" her complaint. Ibid.
Montells concluded that "a liberal reading of LAD" was required in order to fulfill the legislative mandate to afford special protection to victims of discrimination. Montells, supra, 133 N.J. at 298. No ...