On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-573-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued December 16, 2009
Before Judges Fuentes and Gilroy.
Defendant West Windsor Township (Township) appeals from the May 1, 2009 order that granted plaintiff Tiffani Mabry leave to file a late notice of claim, pursuant to the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 12-3.*fn1 We reverse.
The core facts are not in dispute. On October 13, 2008, plaintiff suffered injuries in an automobile accident in West Windsor Township when the vehicle she was operating collided with an ambulance owned by the Township. Approximately two weeks post-accident, plaintiff attempted to schedule an appointment with her attorney. Because the attorney was engaged in a two-month trial in the United States District Court, plaintiff was unable to then meet with him. Following completion of the trial, plaintiff met with her attorney during the week between December 25, 2008 and January 1, 2009, at which time plaintiff informed the attorney of the facts relating to the accident.
Based on his experience as a local practitioner, the attorney believed that the ambulance was owned and operated by defendant Twin W First Aid Squad, Inc. (Twin "W"), an entity known to the attorney as a provider of emergency medical services within the Township. On an unspecified date more than ninety days post-accident, plaintiff's attorney obtained a copy of the police report regarding the accident. The report indicates that the ambulance was owned and self-insured by the Township.
On March 6, 2009, not having filed a notice of tort claim with the Township within ninety days of the accident pursuant to N.J.S.A. 59:8-8, plaintiff filed a motion seeking leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9. The motion was supported by plaintiff's affidavit and by certification of her attorney, which provided the following additional facts.
After obtaining a copy of the police report, plaintiff's attorney viewed the Township's Internet website. The website provided in part that the Township's "Emergency Medical Services Division consists of the Twin W First Aid Squad, Inc." According to the attorney, further investigation revealed that:
. . . [W]est Windsor Township apparently utilizes [Twin "W",] to provide emergency ambulance services after the hours of 5 p.m. through 9 a.m. at which time an ambulance either owned or controlled by West Windsor or alternatively an ambulance owned or controlled by Twin "W" but staffed by West Windsor Township employees operates this service only between the hours of 9 a.m. and 5 p.m., at which time Twin "W" resumes providing these services.
On the return date of the motion, plaintiff's attorney argued that there were extraordinary circumstances justifying the grant of the motion. The attorney argued that because the Township listed Twin "W" as the provider of medical emergency services in the Township on its website, neither plaintiff nor he was aware that the ambulance involved in the accident was owned by the Township, rather than Twin "W" until receipt of the police report. In granting the motion, the court stated:
I am going to find that there are rather unusual circumstances here that constitute the statutory criteria of extraordinary circumstances based upon the website, what one may be led to believe.
And you don't have to have a complex medical negligence case, for instance, or a complex case in order to have real issues with regard to identification of parties, it seems to me. I've gone through tortured paths many times to figure out who it was and why, and sometimes you're really misled.
And I think that this is one of those situations that counsel might rest comfortably in believing he was okay and lo and behold other information comes and one doesn't necessarily have to have the police report in the first three months, by the way either, but something comes up and there you are, there is a major issue that was not ...