March 11, 2010
FRED ABLETT, JR., PLAINTIFF-APPELLANT,
STATE OF NEW JERSEY AND JORGE A. CHANG, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1264-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 4, 2010
Before Judges Skillman and Fuentes.
Plaintiff Fred Ablett, Jr. appeals from the order of the Law Division denying his motion for leave to file a late tort claim notice, thus effectively dismissing his personal injury cause of action against defendant State of New Jersey. The trial court found that plaintiff had failed to demonstrate "extraordinary circumstances" to warrant the filing of notice to defendant after ninety days of the claim's accrual, as required under the Tort Claims Act. N.J.S.A. 59:8-8. We affirm.
The following facts are not disputed. On September 24, 2008, while stopped at a traffic light, plaintiff's car was struck from behind by a Dodge Caravan owned by the State Department of the Treasury and operated by defendant Jorge Chang. A police officer who witnessed the accident prepared a police report identifying the "Treasury Dept. of New Jersey" as the owner of the Dodge Caravan.
According to plaintiff, because the officer assumed control of the accident scene, plaintiff did not exchange insurance information directly with Chang. He was thus unaware at the time that the Dodge was owned by the State. Plaintiff also asserted that the vehicle did not have any insignia or other markings that identified it as a State car.
Plaintiff claims that he suffered injury to his back, felt a warm sensation in his left leg, and felt pain in his back, neck, and shoulders. He was examined at a hospital emergency room where x-rays were taken; he was discharged that same day and was referred to a specialist. Plaintiff was eventually examined by an orthopedic surgeon who diagnosed him with a cervical strain and sprain, a bilateral shoulder strain and sprain, and a lumbar strain and sprain. At the time he examined plaintiff, the physician did not find any objective medical evidence that his injuries were permanent or involved a permanent loss of a bodily function.
On October 14, 2008, plaintiff met with an attorney to review the prospect of filing legal action against the driver and owner of the car involved in the accident. By the time this meeting took place, plaintiff had obtained a copy of the police report that described how the accident occurred and identified the parties involved, including that the State was the owner of the Dodge Caravan. Indeed, it is not disputed that both plaintiff and the attorney were aware at this time that Chang was a public employee.
Armed with this information, plaintiff's attorney decided not to file a notice of claim with the State because, in his opinion, plaintiff's injuries did not satisfy the legal threshold for recovery under N.J.S.A. 59:9-2(d). This statute requires a showing of "permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00." Ibid. According to the attorney, given the absence of objective medical evidence showing that plaintiff's injuries satisfied the statutory threshold for recovery, he believed that filing the tort claim notice would have violated his ethical obligation not to pursue a frivolous claim.
On January 23, 2009, plaintiff's physician revised his original diagnosis and opined that plaintiff had suffered a cervical herniated disc as a result of the car accident. He based this opinion on the results of a magnetic resonance imaging (MRI) test performed on plaintiff on January 9, 2009. Plaintiff's attorney became aware of the physician's revised diagnosis on January 26, 2009. Based on this new medical information, the attorney decided that plaintiff had a legally viable case against the State. Plaintiff and counsel signed a formal retainer agreement on February 24, 2009.
On April 1, 2009, plaintiff's counsel moved before the Law Division for leave to file a late tort claim notice. On April 6, 2009, before the motion was decided, plaintiff's counsel served the State with the tort claim notice.
Against these facts, Judge Nugent denied plaintiff's motion, finding that plaintiff's cause of action had, at the latest, accrued on October 14, 2008, the date he obtained a copy of the police report, which coincided with his first consultation with counsel. In this light, Judge Nugent found our Supreme Court's decision in Beauchamp v. Amedio, 164 N.J. 111 (2000), controlling and dispositive. We agree and affirm substantially for the reasons expressed by Judge Nugent in his memorandum of opinion dated April 24, 2009.*fn1