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Joyner v. Ortiz

Superior Court of New Jersey, Appellate Division

July 8, 2013

LORI JOYNER, individually and as Administrator ad Prosequendum of The Estate of WANDA PENNINGTON, Plaintiff-Respondent,
v.
EDGARDO ORTIZ, M.D., KHAMIS G. KHAMIS, M.D., ALLISON, I. HADERS, M.D., COLUMBIA CASUALTY COMPANY, [1] PHOENIX PHYSICIANS, LLC, and TRINITAS EMERGENCY SOLUTIONS, PC, Defendants, and TRINITAS REGIONAL MEDICAL CENTER,

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 15, 2013

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5680-10.

Jane S. Kelsey argued the cause for appellant (Weber, Gallagher, Simpson, Stapleton, Fires & Newby, L.L.P., attorneys; Ms. Kelsey, of counsel and on the brief; Jessica V. Henry, on the brief).

William L. Gold argued the cause for respondent (Bendit Weinstock, attorneys; Mr. Gold and Sherri Davis Fowler, on the brief).

Before Judges Sapp-Peterson and Haas.

PER CURIAM

We granted leave to appeal in this wrongful death action N.J.S.A. 2A:31-1 to -6 ("Act"), to determine whether the trial court erred in denying defendant's motion to dismiss plaintiff's third amended complaint on the ground that the claims against defendant Trinitas Regional Medical Center ("defendant" or "Trinitas") are barred by N.J.S.A. 2A:31-3. We affirm.

Plaintiff, individually and as administrator of the Estate of Wanda Pennington, on behalf of the estate's minors, timely filed a wrongful death/survival action on August 2, 2010, against three doctors, Edgardo Ortiz, Khamis G. Khamis, and Allison I. Haders. Plaintiff's claims arose out of Pennington's death on September 18, 2008, after she was admitted for treatment at Trinitas's emergency room. In May 2012, plaintiff filed her first amended complaint adding Columbia Casualty Company as a defendant, and in July 2012 the court granted plaintiff's motion to file a second amended complaint in which plaintiff added Phoenix Physicians, LLC and Trinitas Emergency Solutions, PC as defendants. The following month, the court granted plaintiff's motion to file a third amended complaint naming Trinitas as a defendant. Plaintiff's claims against Trinitas were based upon a theory of apparent authority over the individually named doctors.

When plaintiff filed the third amended complaint, it was nearly four years after Pennington's death and two years after the original complaint had been filed. Trinitas filed its answer in October 2012, asserting as an affirmative defense that the action was time-barred. On November 5, 2012, its counsel attended, but did not participate in, a mediation session, after having learned about the mediation session one day earlier. Mediation proved unsuccessful, but plaintiff ultimately settled with all defendants, except Trinitas, shortly after the failed mediation.

Trinitas filed a motion seeking to dismiss plaintiff's complaint as time-barred under the wrongful death statute of limitations, N.J.S.A. 2A:31-3. The court conducted oral argument and, by order dated December 7, 2012, Judge Richard S. Rebeck denied the motion. Citing LaFage v. Jani, 166 N.J. 412 (2001), the judge found that the infants had a right to have the matter litigated and that the wrongful death statute of limitations did not apply, given the status of the estate's beneficiaries as minors. Judge Rebeck additionally found that Trinitas's non-participation in pre-trial discovery over the preceding two years was an "inconvenience, " but "given the fact that we're talking about a trial date now in June, " it was not prejudiced by the delay in being joined at that time. By order dated January 13, 2012, we granted leave to defendant to appeal the court's interlocutory order denying its motion.

On appeal, Trinitas raises the following points for our consideration:

POINT I
THE TRIAL COURT ERRED IN APPLYING THE LAFAGE DECISION TO DENY DISMISSAL OF CLAIMS BARRED BY THE TWO-YEAR WRONGFUL ...

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