LORI JOYNER v. EDGARDO ORTIZ, M.D

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

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,2

Defendant-Appellant.

____________________________________

Argued May 15, 2013 Decided

Before Judges Sapp-Peterson and Haas.

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).

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 DEATH STATUTE OF LIMITATIONS.

A. SUBSTANTIVE STATUTE OF LIMITATION ANALYSIS: THE COURT ERRED IN TOLLING THE STATUTE OF LIMITATIONS BECAUSE TOLLING DID NOT ADVANCE LEGISLATIVE PURPOSES.

B. PROCEDURAL STATUTE OF LIMITATION ANALYSIS: THE COURT ERRED IN TOLLING THE STATUTE OF LIMITATIONS BECAUSE PLAINTIFF DID NOT MEET THE REQUISITES FOR EQUITABLE TOLLING.

POINT II

THE TRIAL COURT ERRED IN IGNORING THE ENTIRE CONTROVERSY DOCTRINE.

Defendant argues the trial court erred in its application of LaFage to preclude dismissal of its complaint. First, defendant asserts that tolling of the statute of limitations here "would not advance the goal of protecting minors from the adverse consequences of legal inexperience because the delay herein derived from an unfair litigation strategy as opposed to inexperience." Second, defendant contends tolling the statute of limitations would afford plaintiff an advantage while resulting in prejudice to defendant. Third, defendant urges plaintiff should not have received the benefit of equitable tolling because plaintiff failed to meet the requirements for equitable tolling, as plaintiff had not been induced or tricked into missing the filing deadline, had not mistakenly asserted her rights, and had not been prevented from asserting her rights in some extraordinary way. We reject each of these contentions.

Whether plaintiff's action against defendant is time-barred is a question of law. Churchill v. State, 378 N.J. Super. 471, 478 (App. Div. 2005). Our review is plenary and de novo. Psak, Graziano, Piasecki & Whitelaw v. Fleet Nat. Bank, 390 N.J. Super. 199, 203 (App. Div. 2007). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). In pertinent part, the Act provides:

When the death of a person is caused by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury, the person who would have been liable in damages for the injury if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances amounting in law to a crime.

[N.J.S.A. 2A:31-1.]

A cause of action under the Act must be commenced within two years of a decedent's death. N.J.S.A. 2A:31-3. However, in LaFage, the Court held that N.J.S.A. 2A:14-21,

which tolls for infants the two-year statute of limitations applicable to "[e]very action at law for an injury to the person caused by the wrongful act [or] neglect of any person," . . . should be construed to toll as well wrongful death actions by infants because such actions are fairly encompassed by the limitation provisions applicable to actions for injury to the person.

[LaFage, supra, 166 N.J. at 429-30 (quoting N.J.S.A. 2A:14-21).]

The Court reasoned that "[a]pplying minority tolling to wrongful death actions is consistent with the applicability of minority tolling to other complex tort actions." Id. at 430.

The Court also held that there was an additional reason to apply minority tolling to wrongful death actions. It was "convinced that an action for wrongful death did exist at common law, prior to the enactment of N.J.S.A. 2A:31-3 and its predecessor." Id. at 438. It therefore reasoned that because, "[a]t common law, statutes of limitations were considered to be procedural in nature," limiting the remedy in a cause of action, not the right, equitable tolling principles could be applied. Ibid.

The brief submitted on defendant's behalf acknowledges the holding in LaFage: "LaFage concluded that tolling of the [w]rongful [d]eath statute of limitations was appropriate under both rubrics -- substantive and procedural -- although it held that the statute of limitations was procedural and thus subject to equitable tolling." Defendant then proceeds to engage in a discussion of application of factors a court should consider in determining whether equitable principles should be applied to toll substantive statutes of limitations, an analysis we conclude is unnecessary.

Consideration of equitable considerations is used "to determine whether the purposes of the statute of limitations are served by its application, but not to decide whether the statute of limitations ran or was tolled." Molnar v. Hedden, 138 N.J. 96, 103 (1994). The Court's holding in LaFage is consistent with this reasoning in Molnar. In other words, its application of minority tolling to the wrongful death statute of limitations was based upon its determination that the Legislature intended such an interpretation, LaFage, supra, 166 N.J. at 425-26, not because of its consideration of equitable principles. The Court's consideration of equitable principles was, as it explained, "an additional reason . . . to allow tolling[,]" not the primary reason. Id. at 438.

Our conclusion that under LaFage, the wrongful death statute is tolled for minors should not be interpreted as adopting plaintiff's contention that the complaint against Trinitas could have been filed at any time until "the last kid turned 18." We need not resolve that issue because, unlike the plaintiff in LaFage, the wrongful death action was actually commenced in a timely fashion. Defendant, however, was not named in the original complaint. Instead, defendant was named as a party in an amended complaint rather than in a "successive action." We add only the following comments.

Rule 4:5-1(b)(2) requires that first pleadings include a certification that discloses the identity of any non-party who should be joined or who is subject to joinder due to potential liability. Plaintiff's counsel's certification did not identify Trinitas as a potentially liable party, notwithstanding that Estate of Cordero v. Christ Hospital, 403 N.J. Super. 306 (App. Div. 2008), which addressed a hospital's liability based upon a theory of apparent authority, was decided just over one month after Pennington's death and nearly two years before the initial complaint was filed. The rule authorizes a court to dismiss a complaint as a sanction if non-compliance is inexcusable "and the right of the undisclosed party to defend the successive action was substantially prejudiced" thereby. R. 4:5-1(b)(2). The comments to this rule state that "[t]he purpose of paragraph (b)(2) . . . is to implement the philosophy of the entire controversy . . . particularly where the entire controversy involves the rights of persons who are not parties to the action as framed." Pressler & Verniero, Current N.J. Court Rules, Comment on R. 4:5-1 (2013). We discern no basis to disturb Judge Rebeck's decision not to dismiss plaintiff's complaint under the circumstances of this case.

Affirmed.

1 Edgardo Ortiz, M.D. and Columbia Casualty Company are, without explanation, missing from the caption of the third amended complaint. In any event, the above-listed defendants are not part of this appeal.

2 Improperly pled as Trinitas Hospital.