FRED ABLETT, JR v. STATE OF NEW JERSEY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4665-08T1
FRED ABLETT, JR.,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY and
JORGE A. CHANG,
Defendants-Respondents.
___________________________________
March 11, 2010
Argued February 4, 2010 - Decided
Before Judges Skillman and Fuentes.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Docket No.
L-1264-09.
Colin G. Bell argued the cause for appellant
(Hankin Sandman & Palladino, attorneys;
Mr. Bell, on the brief).
Laura Schaff, Deputy Attorney General, argued
the cause for respondents (Paula T. Dow, Acting
Attorney General, attorney; Lewis A. Scheindlin,
Assistant Attorney General, of counsel; Ms. Schaff,
on the brief).
PER CURIAM
Plaintiff Fred Ablett, Jr. appeals from the order of the
Law Division denying his motion for leave to file a late tort
claim notice, thus effectively dismissing his personal injury
cause of action against defendant State of New Jersey. The
trial court found that plaintiff had failed to demonstrate
"extraordinary circumstances" to warrant the filing of notice to
defendant after ninety days of the claim's accrual, as required
under the Tort Claims Act. N.J.S.A. 59:8-8. We affirm.
The following facts are not disputed. On September 24,
2008, while stopped at a traffic light, plaintiff's car was
struck from behind by a Dodge Caravan owned by the State
Department of the Treasury and operated by defendant Jorge
Chang. A police officer who witnessed the accident prepared a
police report identifying the "Treasury Dept. of New Jersey" as
the owner of the Dodge Caravan.
According to plaintiff, because the officer assumed control
of the accident scene, plaintiff did not exchange insurance
information directly with Chang. He was thus unaware at the
time that the Dodge was owned by the State. Plaintiff also
asserted that the vehicle did not have any insignia or other
markings that identified it as a State car.
Plaintiff claims that he suffered injury to his back, felt
a warm sensation in his left leg, and felt pain in his back,
neck, and shoulders. He was examined at a hospital emergency
room where x-rays were taken; he was discharged that same day
and was referred to a specialist. Plaintiff was eventually
examined by an orthopedic surgeon who diagnosed him with a
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cervical strain and sprain, a bilateral shoulder strain and
sprain, and a lumbar strain and sprain. At the time he examined
plaintiff, the physician did not find any objective medical
evidence that his injuries were permanent or involved a
permanent loss of a bodily function.
On October 14, 2008, plaintiff met with an attorney to
review the prospect of filing legal action against the driver
and owner of the car involved in the accident. By the time this
meeting took place, plaintiff had obtained a copy of the police
report that described how the accident occurred and identified
the parties involved, including that the State was the owner of
the Dodge Caravan. Indeed, it is not disputed that both
plaintiff and the attorney were aware at this time that Chang
was a public employee.
Armed with this information, plaintiff's attorney decided
not to file a notice of claim with the State because, in his
opinion, plaintiff's injuries did not satisfy the legal
threshold for recovery under N.J.S.A. 59:9-2(d). This statute
requires a showing of "permanent loss of a bodily function,
permanent disfigurement or dismemberment where the medical
treatment expenses are in excess of $3,600.00." Ibid.
According to the attorney, given the absence of objective
medical evidence showing that plaintiff's injuries satisfied the
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3
statutory threshold for recovery, he believed that filing the
tort claim notice would have violated his ethical obligation not
to pursue a frivolous claim.
On January 23, 2009, plaintiff's physician revised his
original diagnosis and opined that plaintiff had suffered a
cervical herniated disc as a result of the car accident. He
based this opinion on the results of a magnetic resonance
imaging (MRI) test performed on plaintiff on January 9, 2009.
Plaintiff's attorney became aware of the physician's revised
diagnosis on January 26, 2009. Based on this new medical
information, the attorney decided that plaintiff had a legally
viable case against the State. Plaintiff and counsel signed a
formal retainer agreement on February 24, 2009.
On April 1, 2009, plaintiff's counsel moved before the Law
Division for leave to file a late tort claim notice. On April
6, 2009, before the motion was decided, plaintiff's counsel
served the State with the tort claim notice.
Against these facts, Judge Nugent denied plaintiff's
motion, finding that plaintiff's cause of action had, at the
latest, accrued on October 14, 2008, the date he obtained a copy
of the police report, which coincided with his first
consultation with counsel. In this light, Judge Nugent found
our Supreme Court's decision in Beauchamp v. Amedio, 164 N.J.
A-4665-08T1
4
111 (2000), controlling and dispositive. We agree and affirm
substantially for the reasons expressed by Judge Nugent in his
memorandum of opinion dated April 24, 2009.1
Affirmed.
1
At oral argument before us, plaintiff's appellate counsel
acknowledged that the attorney who erroneously decided not to
file the tort claim notice within the time prescribed by
N.J.S.A. 59:8-8 was, at the time, an associate member of his
firm. In response to our questions, appellate counsel also
indicated that, to his knowledge, no attorney associated with
the firm had advised plaintiff that he may have a legal
malpractice claim against both the individual attorney upon
whose advice plaintiff relied on in the prosecution of this
personal injury suit, and the firm, as the entity responsible
for supervising the attorney's professional activities. It is
well-settled that "[a]n attorney has an ethical obligation to
advise a client that he or she might have a claim against the
attorney, even if such advice flies in the face of that
Circle Chevrolet Co. v. Giordano,
attorney's own interests."
Halleran & Ciesla,
142 N.J. 280, 291 (1995), overruled on other
grounds by Olds v. Donnelly,
150 N.J. 424, 441-42 (1997). We
thus expect that appellate counsel will comply with his ethical
obligation and advise plaintiff, forthwith, that he might have a
legal malpractice claim against both the attorney who prosecuted
the case at the trial level and the firm of Hankin, Sandman, and
Pallido itself.
A-4665-08T1
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