On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2511-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Baxter and Maven.
Plaintiff Ineabelle Lugo appeals from a Law Division order dismissing her complaint against defendant Pennsauken Board of Education (BOE) with prejudice. The dismissal was based upon plaintiff's failure to file a timely notice of claim as required by N.J.S.A. 59:8-8 of the Tort Claims Act (TCA or Act), N.J.S.A. 59:1-1 to 12-3, as well as plaintiff's failure to institute suit against the BOE within two years of the happening of the accident as required by N.J.S.A. 2A:14-2.
On appeal, plaintiff asserts that because she undertook a reasonable investigation to determine whether defendant Carroll Jo Kennedy (Kennedy) was within the course of her employment at the time of the accident, and such investigation disclosed no facts warranting such a conclusion, the judge erred by dismissing with prejudice plaintiff's complaint against BOE. We agree with the motion judge's determination that plaintiff's investigation of Kennedy's status at the time of the accident was not sufficient to justify a relaxation of the requirements of the TCA, and was likewise insufficient to entitle plaintiff to the benefit of the discovery rule articulated in Henry v. New Jersey Department of Human Services, 204 N.J. 320, 336-37 (2010). We affirm.
On June 6, 2007, plaintiff was traveling westbound on Springfield Avenue in Pennsauken when the vehicle being operated by Kennedy pulled into the path of plaintiff's vehicle, causing a collision. When a Pennsauken police officer responded to the scene and interviewed Kennedy, she did not volunteer the fact that she was, at the time of the accident, a nurse employed by BOE and was in the course and scope of her employment as a school nurse traveling from Roosevelt School on her way to Pennsauken High School.
On June 19, 2007, thirteen days after the accident, plaintiff's attorney sent Kennedy a letter, asking her to advise him of the name of her insurance carrier, and also asking her to provide her insurance carrier with a copy of counsel's letter. The following inquiry was set forth at the bottom of the June 19, 2007 letter:
I WAS IN THE COURSE OF MY EMPLOYMENT WHEN THE ACCIDENT OCCURRED? YES___ NO___ Kennedy did not respond to that question.
After receiving no answer from defendant Kennedy to the inquiry about whether Kennedy was in the course of her employment when the accident occurred, plaintiff's counsel did not send her a follow-up letter. Moreover, although plaintiff's counsel was aware that Kennedy was insured by AIG -- having received correspondence from AIG supplying the name of the claims representative -- counsel never asked the claims representative to ascertain the answer to the vital question.
On May 20, 2009, seventeen days before the expiration of the two-year statute of limitations, plaintiff filed suit against Kennedy, her husband Robert Kennedy, and "John Does 1 through 10" as fictitious defendants "who owned, manufactured, leased, maintained, operated, possessed, were agents of, employed, directed, drove, entrusted, repaired, serviced, supervised or controlled the vehicle which was involved in the collision described herein." The complaint also alleged that various John Doe defendants operated the vehicle "so carelessly, recklessly, [and] inattentively" as to cause the accident with plaintiff's vehicle.
On a date not specified in the record, plaintiff propounded interrogatories on Kennedy, which Kennedy answered on August 17, 2009, two years and two months after the accident. In her responses, Kennedy specified that AIG was her insurance carrier. When asked whether she "admit[ted] agency," Kennedy answered "no." None of the interrogatories directly asked her whether at the time of the accident she was in the course of her employment.
Not until Kennedy was deposed on August 19, 2010, more than three years after the happening of the accident, did plaintiff learn that Kennedy was employed by BOE and was in the course of her employment, and enroute ...