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Michael Mcdade and Pamela Mcdade v. Rodolfo Siazon

December 22, 2011

MICHAEL MCDADE AND PAMELA MCDADE, PLAINTIFFS-APPELLANTS,
v.
RODOLFO SIAZON, AURORO SIAZON, COUNTY OF ATLANTIC, AND DEF CONTRACTOR, DEFENDANTS, AND EGG HARBOR TOWNSHIP MUNICIPAL UTILITY AUTHORITY, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division.

The opinion of the court was delivered by: Justice Patterson

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Michael McDade, et al. v. Rodolfo Siazon, et al.

(A-59-2010) (067086)

Argued September 27, 2011

Decided December 22, 2011

PATTERSON, J., writing for a unanimous Court.

The Court considers whether a plaintiff who pursued a claim against a public entity pursuant to the New Jersey Tort Claims Act (Act), N.J.S.A. 59:1-1 to 13-10, but failed to comply with the Act's notice of claim requirements, can avoid the dismissal of his claim by invoking the discovery rule.

According to plaintiff Michael McDade, on January 22, 2006, he fell as a result of a raised pipe protruding from a sidewalk in Egg Harbor Township. McDade suffered severe and permanent injuries to his right shoulder, knee and hand. The sidewalk was owned by Egg Harbor Township (Township), but the pipe was owned and controlled by the Egg Harbor Township Municipal Utility Authority (MUA), which is a separate and distinct entity. On April 13, 2006, McDade's attorney (hereinafter, "McDade") served a notice of claim by certified mail on the Township, Atlantic County, and the State of New Jersey. In response to questions on the notice of claim form inquiring whether the claim had been made against others, McDade listed the Township, the County, and the State. He did not list the MUA, and no notice of claim was served upon it within the ninety-day period required by N.J.S.A. 59:8-8(a). The record also does not reflect an investigation by McDade during that ninety days to identify the owner of the pipe.

After the ninety-day period passed, but within the one-year period to move for leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9, the Township's claims administrator sent McDade a letter stating that the pipe was a sewer clean-out that was under the jurisdiction of the MUA and explaining that the Township had no jurisdiction over the MUA. After receiving the letter, McDade sent a letter to the MUA with an enclosed notice of claim. The letter stated that "your governing body was noticed of the incident on April 13, 2006 by certified mail. We learned on August 21, 2006 the injury was caused due to the negligence of a subsidiary of the governing body, the MUA. Accordingly, please consider this our formal amended Tort Claims Notice." The enclosed notice of claim was identical to the notice previously served on the Township and bore the original date of that notice, but the response to the questions on the form had been amended to include the MUA as a party against whom McDade had asserted a claim. The claims administrator for the MUA responded by writing a letter requesting a copy of the executed certified mail tag for service of the April 13, 2006 notice of claim upon the MUA. McDade did not respond to the request. In November 2006, still within the one-year period to move for leave to file a late notice of claim, McDade wrote to the MUA claims administrator and suggested settlement discussions. The claims administrator responded that he was still investigating the claim and would be in contact when the investigation was completed.

The one-year period to move for leave to file a late notice of claim expired on January 22, 2007. In February 2007, McDade advised the claims administrator that he intended to file suit against the MUA. On January 7, 2008, almost two years after the accident, McDade filed a complaint naming as defendants the owners of the property adjacent to the sidewalk, the MUA, the County, and others. The MUA moved for summary judgment based on McDade's failure to file a timely notice of claim or a motion for leave to file a late notice of claim. The trial court denied the summary judgment motion, holding that the discovery rule tolled the accrual of McDade's cause of action for purposes of the Tort Claims Act until August 21, 2006, when McDade was made aware that the pipe was the property of the MUA. The court also found that the MUA had not been prejudiced by the delay.

The Appellate Division granted the MUA's motion for leave to appeal and reversed in an unpublished decision. The panel held that in light of McDade's failure to conduct a diligent investigation to identify the owner of the pipe involved in the accident, and his failure to file a motion for leave to file a late notice of claim, the discovery rule did not apply and McDade's tort claims notice was untimely. The panel remanded for the entry of an order dismissing McDade's claim against the MUA with prejudice. The Supreme Court granted McDade's petition for certification.

205 N.J. 80 (2011).

HELD: In asserting a claim against the Egg Harbor Township Municipal Utilities Authority (MUA) under the New Jersey Tort Claims Act, plaintiff Michael McDade did not comply with the statutory ninety-day notice of claim requirement, N.J.S.A. 59:8-8(a), or seek relief from that requirement by filing a notice of motion for leave to file a late notice of claim, N.J.S.A. 59:8-9. Because the discovery rule does not obviate the need to comply with the statutory notice requirements, the defendant MUA is entitled to summary judgment.

1. The Tort Claims Act affords circumscribed relief from the doctrine of sovereign immunity, but it imposes strict requirements upon litigants seeking to file claims against public entities. The Act is strictly construed to permit lawsuits only where specifically delineated. The notice of claim requirements are an important component of the statutory scheme. N.J.S.A. 59:8-8(a) requires that a plaintiff seeking to file a claim against a public entity must serve a notice of claim within ninety days of the accrual of the cause of action. A claim accrues on the date a reasonable person, exercising ordinary diligence, would recognize that he or she was injured due to the fault of another. The purpose behind the Act's short notice period is to provide the public entity with prompt notification of a claim to permit an investigation of the facts, settle meritorious claims, prepare a defense, correct the condition if warranted, and plan for potential liability. In support of this policy, the Act also requires that the notice of claim be filed directly with the specific local entity at issue, pursuant to N.J.S.A. 59:8-7. (pp. 10-14)

2. Failure to meet the ninety-day deadline for service of a notice of claim ordinarily results in the claimant being forever barred from recovering against the entity. However, the Legislature recognized that discretionary judicial relief may be necessary in appropriate cases. N.J.S.A. 59:8-9 permits a claimant who failed to file a timely notice of claim to file motion for leave to file a late notice of claim within one year after the claim accrues. The grant or denial of the motion is left to the sound discretion of the trial court. The Legislature imposed two standards for the granting of such a motion: first, that there be a showing of sufficient reasons constituting extraordinary circumstances for the claimant's failure to timely file the notice of claim, and second, that the public entity not be substantially prejudiced. With regard to the "extraordinary circumstances" standard, the court's inquiry focuses on the reasonable diligence of the plaintiff in investigating the claim and determining the identity of the tortfeasor. (pp. 14-17)

3. The discovery rule does not delay the accrual of McDade's claim. McDade knew on January 22, 2006 that he had been injured by the pipe and that the pipe's owner was potentially liable. The fact that he was not immediately aware of the true identity of the pipe's owner does not alter the analysis. Although the discovery rule tolls the accrual of a cause of action until the injured party discovers or should have discovered by an exercise of reasonable diligence and intelligence that he may have a basis for an actionable claim, McDade did not act with reasonable diligence. There is no indication that he ever took affirmative steps to determine the owner's identity. Serving a notice of claim on the Township did not absolve McDade of the obligation to promptly identify the pipe's owner and serve it with a timely notice. Had McDade acknowledged that he failed to serve the appropriate entity and filed a motion for leave to file a late notice of claim within one year, the trial court could have evaluated the circumstances of this case within the correct legal framework. With no motion before it, however, the trial court incorrectly relied upon the discovery rule to deny the MUA's motion for summary judgment. (pp. 17-19)

4. Equitable estoppel addresses conduct that reasonably misleads another to his prejudice. There is no indication in the record that McDade relied to his detriment upon any representation or omission by the MUA. Furthermore, the MUA promptly and consistently asserted McDade's failure to comply with the Act's notice requirements, and it did not engage in any conduct suggesting a waiver of its position. Equitable estoppel does not apply to excuse McDade's failure to either serve a timely notice of claim or seek leave to file a late notice of claim. (pp. 19-21)

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LONG, ALBIN, and HOENS, and JUDGE WEFING, temporarily assigned, join in JUSTICE PATTERSON's opinion. JUSTICE LaVECCHIA did not participate.

Argued September 27, 2011

JUSTICE PATTERSON delivered the opinion of the Court.

The New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 13-10, imposes strict requirements upon litigants seeking to file claims against public entities. Under N.J.S.A. 59:8-8, a claimant must file a notice of claim upon a public entity or public employee "not later than the ninetieth day after accrual of the cause of action." N.J.S.A. 59:8-8. The Legislature, however, has created a mechanism for obtaining discretionary relief from the strict ninety-day deadline; within one year after the accrual of the cause of action, N.J.S.A. 59:8-9 permits the filing of a motion for leave to file a late notice. This motion may be granted if the claimant has shown "sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim" within the statutory period of ninety days, and "that the public entity or the public employee has not been substantially prejudiced thereby." Ibid.

The issue before the Court is whether a plaintiff who has failed to serve a timely notice of claim pursuant to N.J.S.A. 59:8-8, and has failed to file a motion for leave to file a late notice in accordance with N.J.S.A. 59:8-9, can pursue a claim against a public entity. Plaintiffs Michael McDade and Pamela McDade, intending to file an action for personal injury against the owner of a sewer pipe that allegedly injured Mr. McDade, served a tort claims notice upon a municipality that was not the owner of the pipe. They did not conduct an investigation to determine the actual owner, and were not advised of the true owner's identity until seven months after the claim accrued. Instead of obtaining leave of court to file a motion for leave to file a late tort claim notice pursuant to N.J.S.A. 59:8-9, plaintiffs served an untimely "amended" notice upon the public entity that owned the pipe, followed seventeen months later by the filing of their complaint. The trial court denied defendants' summary judgment motion, invoking the discovery rule to hold that plaintiffs' claim had not accrued until they were advised of the identity of the pipe's owner. After granting leave to appeal, the Appellate Division reversed the denial of summary judgment, holding that the discovery rule did not toll the accrual of plaintiffs' claims in the absence of an order granting leave to file a notice of late claim under N.J.S.A. 59:8-9.

We now affirm. As the Appellate Division panel properly held, the discovery rule does not obviate the need to comply with the requirements of N.J.S.A. 59:8-8 and N.J.S.A. 59:8-9. Because plaintiffs declined to invoke the statutory procedure by which a court determines whether the late filing of a notice of ...


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