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Richard D. Wiles, Jr. and Lisa Rose-Wiles v. Brian W. Way and County of Union


June 4, 2012


On appeal from Superior Court of New Jersey, Law Division, Union County, Docket Nos. L-3610-06 and L-2081-08.

Per curiam.


Submitted March 30, 2011

Before Judges Fuentes and Newman.

In this personal injury action plaintiff*fn2 Richard D. Wiles, Jr. appeals from the order of the Law Division dismissing his complaint for failing to serve the public entities involved in this case with timely notice of claim as required under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to -12-3. We affirm.


The parties have characterized the procedural history of this case as a "tortured" one. We agree. This personal injury case began as a purely private automobile accident between plaintiff and defendant Brian Way. On January 22, 2006, the pick-up truck owned and driven by defendant collided with the motorcycle operated by plaintiff. According to plaintiff, defendant failed to yield the right of way pursuant to a stop sign located at the intersection of Washington Avenue and Henry Street in Linden.

Plaintiff was seriously injured as a result of the accident. He suffered a compound facture of his right ankle, requiring open reduction and internal fixation surgery, and his left leg was amputated from below the knee. He filed a complaint on October 13, 2006, naming defendant and "John Does 1-10" as fictitious parties. Defendant filed his answer on January 10, 2007,*fn3 and the matter proceeded in the normal course of discovery.

Way was deposed by plaintiff's counsel on June 5, 2007. In the course of this deposition, Way testified that on the day and time of the accident he was "on call" as a Union County Sheriff's Officer assigned to the canine unit.*fn4 The accident occurred while he was responding to a pager call from the County Police that the City of Elizabeth Police Department "needed a dog."

Despite this clear, unambiguous statement from defendant that he was "on duty" as a Sheriff's Officer at the time of the accident, plaintiff's counsel did not take any action following Way's deposition to amend the complaint to name the Sheriff's Department as a defendant under the doctrine of respondeat superior or to otherwise place this public entity on notice of a potential claim as required by N.J.S.A. 59:8-8.

The case was presented for mandatory arbitration on January 10, 2008, resulting in a preliminary decision finding defendant 100% liable and awarding plaintiff $750,000 in compensatory damages. By letter dated February 7, 2008, Way's defense counsel rejected the arbitrator's award and demanded a trial de novo pursuant to Rule 4:21A-6.

On June 17, 2008, Way filed a declaratory judgment action against Union County and the Union County Sheriff's Department (the County defendants) seeking indemnification "from any Judgment that may be entered against him in connection with the lawsuit that was filed" by plaintiff. The County defendants asserted sixteen affirmative defenses in their responsive pleading, including all defenses available to public entities under the TCA. Shortly thereafter, the court granted plaintiff's motion to intervene in the declaratory judgment action and the two cases were consolidated for discovery purposes.

The matter proceeded from this point primarily through motion practice. The County defendants sought to dismiss the declaratory judgment action, arguing that Way was not within the scope of his employment at the time of the accident and that plaintiff failed to serve a timely TCA notice of claim. Way cross-moved for a judicial declaration that he was acting within the scope of his employment at the time of the accident. Plaintiff cross-moved to preclude Way and the County defendants from asserting the TCA notice provisions as a basis to dismiss his complaint.

On the question of TCA notice, the motion judge held that the notice provisions under the TCA were not applicable in the declaratory judgment action because the relief requested was limited to a judicial adjudication of contractual claims. In a subsequent order, the court found that Way was acting within the scope of his employment at the time of the accident, thus obligating the County defendants to defend and indemnify him against all claims raised by plaintiff. In this light, the court granted the County defendants' motion to intervene in the personal injury action and permitted them to raise the TCA as an affirmative defense on behalf of themselves and Way. Finally, the court granted defendants' motion for summary judgment based on plaintiff's failure to serve the TCA notice of claim required under N.J.S.A. 59:8-8.*fn5


Plaintiff argues that the court erred in permitting the County defendants: (1) to intervene in the personal injury action; (2) to amend Way's answer to raise the TCA notice requirement as an affirmative defense; and (3) to dismiss plaintiff's complaint based on plaintiff's failure to file the notice required under N.J.S.A. 59:8-8. On this last point, plaintiff argues that Way should be equitably estopped from asserting the TCA as an affirmative defense. We disagree in all respects.

Under Rule 4:33-1, a party can make a timely application to intervene in the action if such party can show an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

A motion to intervene as of right under Rule 4:33-1 "should be liberally construed." Atl. Emp'rs Ins. Co. v. Tots & Toddlers Pre-Sch. Day Care Ctr., 239 N.J. Super. 276, 280 (App. Div.), certif. denied, 122 N.J. 147 (1990). In determining whether a motion to intervene should be granted, "'[t]he test is whether the granting of the motion will unduly delay or prejudice the rights of the original parties.'" Ibid. (quoting Looman Realty Corp. v. Broad St. Nat'l Bank of Trenton, 74 N.J. Super. 71, 78 (App. Div.), certif. denied, 37 N.J. 520 (1962)).

Here, the County defendants have a clear interest in protecting public funds*fn6 against claims arising from this accident. The County is also contractually obligated to indemnify Way under a collective bargaining agreement because the court ruled that Way was acting within the scope of his employment as a Sheriff's Officer at the time of the accident.

The only "prejudice" caused by allowing the County defendants to intervene is the availability and applicability of the TCA as an affirmative defense. However, the TCA does not constitute "prejudice" within the meaning of the test adopted in Looman Realty. The TCA is an expression of public policy by the Legislature "that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein." N.J.S.A. 59:1-2. Thus, under the TCA, "immunity for public entities is the rule and liability is the exception." Fleuhr v. City of Cape May, 159 N.J. 532, 539 (1999). The notice of claim requirements under N.J.S.A. 59:8-8 "are an important component of the statutory scheme." McDade v. Siazon, 208 N.J. 463, 474 (2011).

As a jurisdictional prerequisite to filing a suit against a public entity or public employee, the TCA requires a claimant to file a notice of claim, N.J.S.A. 59:8-3, within ninety days of the accrual of such claim. N.J.S.A. 59:8-8. A claimant who fails to file the notice of claim within the ninety-day time period can seek leave of court to file such a notice under N.J.S.A. 59:8-9, provided, however, that such a motion is filed within one year after the accrual of his claim.

In McDade, supra, the Court considered "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." 208 N.J. at 468. In McDade, the plaintiffs initially filed a notice of claim against the wrong public entity. Ibid. They did not conduct any investigation to ascertain the correct public entity involved and, as a result, discovered their error seven months after their claim had accrued. Ibid.

Instead of seeking leave of court to file a late notice under N.J.S.A. 59:8-9, the plaintiffs unilaterally amended the original TCA notice and served it on the correct public entity, ibid., "followed seventeen months later by the filing of their complaint." Id. at 469. Against these facts, the trial court in McDade denied the public entity's motion for summary judgment. Ibid. Applying the "discovery rule," the trial court held that the plaintiffs' claims accrued only when they learned the identity of the responsible public entity. Ibid.

We reversed on direct appeal, "holding that the discovery rule did not toll the accrual of [the] 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." Ibid. The Supreme Court affirmed our decision. Ibid. Writing for the Court, Justice Patterson noted that the "[p]laintiffs' decision to forego the filing of a motion for leave to file a late notice of claim under N.J.S.A. 59:8-9 deprived the trial court of the opportunity to apply the legal standard prescribed by the Legislature for situations such as the one before us." Id. at 479.

For these same reasons we reject plaintiff's arguments. The record shows, beyond any reasonable dispute, that at the time the accident Way was "on call" as a Sheriff's Officer, responding to an official pager calling for his specialized services as a canine officer. These facts were readily ascertainable by plaintiff's counsel and Way's private counsel upon performing a diligent investigation. All that was needed was the following simple question directed at Way: "Where were you going at the time of the accident?" Given the description of how this accident occurred, this basic threshold inquiry was relevant and meaningful on the issue of liability, and would have easily discovered Way's status as a public employee.

Even if we were to hold that plaintiff should not be charged with discovering Way's employment status at the time the complaint was filed, all attorneys in the case were clearly aware of his status as a Sheriff's Officer at the time of his deposition. Despite this fact, plaintiff's counsel did not take any action to comply with the notice of claim requirements in N.J.S.A. 59:8-8, or seek leave of court to file a late notice under N.J.S.A. 59:8-9. In fact, the only "TCA notice" plaintiff served in this case was dated February 11, 2010, more than two years after discovering Way's status as a public employee in the course of his deposition. Under the clear language of both N.J.S.A. 59:8-8 and N.J.S.A. 59:8-9, and pursuant to the Court's holding in McDade, plaintiff's complaint cannot stand.


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