On appeal from Superior Court of New Jersey, Law Division, Union County, Docket Nos. L-3610-06 and L-2081-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...