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Volker v. Ocean Township

January 28, 2009

ROBERT VOLKER, PLAINTIFF-RESPONDENT,
v.
OCEAN TOWNSHIP (OCEAN COUNTY), DEFENDANT, AND OCEAN TOWNSHIP MUNICIPAL UTILITIES AUTHORITY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Ocean County, Docket No. L-2480-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: September 24, 2008

Before Judges Fisher and C.L. Miniman.

Defendant Ocean Township Municipal Utilities Authority (the MUA) appeals from an order entered on August 17, 2007, granting the motion of plaintiff Robert Volker for an extension of time to serve a notice of claim pursuant to N.J.S.A. 59:8-9*fn1 and to deem his notice of claim timely served.*fn2 Because plaintiff failed to meet the prerequisites for serving a late notice of claim, we reverse.

The facts relevant to the issue before us were undisputed. Plaintiff was injured on August 25, 2006, as a result of a bicycle accident in front of his house when his bicycle allegedly skidded on a patch of oil left on the roadway by the MUA during a pipe-replacement project.*fn3 Plaintiff suffered a significant, extensive laceration to his scrotum with the entire left testicle exposed. He was brought to the hospital on an emergent basis and underwent surgery the same day. The laceration was explored and the surgeon found that the laceration was "through the skin to the subcuticular layers with small islands of skin still attached as if a shearing injury had shredded the skin." Those "small islands of skin" were removed and the laceration was debrided. No additional findings were made and the laceration was closed with drains in place. Plaintiff remained in the hospital for three days, being discharged on August 28, 2006.

Plaintiff quickly retained counsel and signed medical release forms on September 12, 2006. That same day, his attorney wrote to the municipal attorney advising him that the municipality was negligent in spilling oil on the street, which caused plaintiff's bicycle accident. Plaintiff's counsel asked the municipal attorney to consider her letter as a notice of claim.*fn4 She also requested a copy of the police report that same day and wrote to the hospital and plaintiff's doctors seeking copies of his medical records.

On September 26, 2006, the municipal attorney advised plaintiff's counsel that she had to ask the municipal clerk for a notice-of-claim form, which she did the following week. After receiving the form, counsel sent it to plaintiff on October 24, 2006, with instructions to complete and return the form to her.

On November 15, 2006, plaintiff signed and returned the notice-of-claim form and also executed a release of health-care information to Scibal Associates, Inc. (Scibal), the insurance adjuster for the municipality. In the notice-of-claim form, plaintiff described those injuries he believed to be permanent as "frequent urge to urinate, incomplete flow, scrotum scarring (4 inches), disfigurement, asymmetrical testicles, internal pulling sensation, right wrist scar, road rash to right cheek, elbow and . . . shoulder, and chipped molar."

The next document in the record was created on March 9, 2007, when plaintiff's attorney sent the notice-of-claim form to Scibal together with a copy of the police report. Although that form required attachment of itemized bills for medical expenses, written reports of treating physicians, and a wage-loss verification from plaintiff's employer, these documents were apparently not supplied at this time because plaintiff's attorney stated that she was "awaiting Dr. Feneran's complete file." Counsel then inquired whether Scibal would be handling the claims against the MUA. On March 22, 2007, Scibal wrote to plaintiff's counsel, confirming receipt of plaintiff's notice-of-claim form. However, the adjuster advised counsel that the MUA was a separate entity at the time of plaintiff's accident and was an insured member of the New Jersey Utility Authority Joint Insurance Fund. She explained that plaintiff's counsel "would have to address the issue of a timely Notice of Claim with that entity . . . ."

Plaintiff spoke to his attorney's secretary on April 4, 2007, and sometime thereafter wrote to his attorney, advising her that he had seen his physicians on three occasions in September, October, and November 2006. The letter indicates that during the November appointment, plaintiff's physician recommended that he wait until March or April to give his injury time to heal before deciding whether he required further medical treatment. He also informed his attorney that he was still having problems urinating, sex was difficult, and the cold weather was a problem, "due to size and effect."

On April 20, 2007, plaintiff's counsel corresponded with the MUA, enclosing a notice-of-claim form. She expressed that she believed that the claim was rightfully addressed to the municipality, but wished to put the MUA on notice in the event discovery revealed that it had some liability.

On May 7, 2007, Scibal advised plaintiff's counsel that its March 7, 2007, denial of claim remained in effect.*fn5 She also stated that "the Township had no constructive notice of an alleged oily substance at the loss site; thus affording it immunity," citing N.J.S.A. 59:4-3 and N.J.S.A. 59:3-2(d). On May 30, 2007, the municipal attorney advised plaintiff's counsel that the MUA had been dissolved in February 2007 and that the notice of claim was untimely and a nullity because it was filed more than ninety days after the August 25, 2006, accident.

About two months later, plaintiff filed a motion seeking leave to file a late notice of claim, which was made returnable on August 3, 2007. Plaintiff's counsel, not plaintiff, submitted the only certification in support of the motion. She certified that she had advised plaintiff that it was not clear whether his injuries would give rise to a cause of action and that his medical records would be requested along with a notice-of-claim form. She explained that when plaintiff returned the notice-of-claim form to her, she had not yet received his medical records for review and, thus, could not assess the permanency of his injuries. However, she stated that "[b]ased on [plaintiff's] complaints and the medical opinions, in February 2007, it became apparent that plaintiff's laceration may have resulted in causing sexual difficulties even after the wound had healed; specifically, he reported excessively prolonged intercourse," although she acknowledged that his physicians had indicated that plaintiff would not be fully healed until March or April 2007.

Counsel did not indicate what, if anything, she had done after September 12, 2006, to secure compliance with her requests for the hospital and physician records nor did she indicate when she actually received them. Counsel did not indicate how she learned at some unspecified time in February 2007 of plaintiff's complaints and of medical opinions that made it apparent that "plaintiff's laceration may have resulted in causing sexual difficulties even after the wound had healed." In fact, she did not indicate precisely what led her to file the notice of claim with Scibal on March 9, 2007, when she had still not received Dr. Feneran's complete file as she indicated in her transmittal letter to Scibal, although we might infer Scibal's March 7, 2007, denial of claim galvanized her into action. In fact, there is no evidence in the record that plaintiff and his counsel ever communicated with each other between November 15, 2006, and April 4, 2007, when plaintiff called his attorney and spoke with her secretary. Counsel also did not explain why she waited a month to give notice to the MUA after Scibal advised that it could not accept service of the notice-of-claim form on its behalf. Finally, she did not explain why she waited over four months after the March 7, 2007, denial of claim before she filed the motion for leave to file a late claim.

The subject motion was decided without oral argument. The judge did not prepare a written decision at that time, but he placed the following statement on the August 17, 2007, record: "This is a motion. I've reviewed the documentation. It appears that there [are] exceptional circumstances concerning the injuries of plaintiff. Therefore, I will grant the motion."*fn6 ...


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