COLLEEN BAUMAN, Individually et al. v. DAISY GWIN, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1294-06T21294-06T2

COLLEEN BAUMAN, Individually and as

Administratrix of the Estate of

CHRISTOPHER BAUMAN, deceased,

Plaintiff-Respondent,

v.

DAISY GWIN, JEREMY BAUMAN, DOWN

ON MAIN STREET TAVERN, BOROUGH OF

GLASSBORO, and GLASSBORO POLICE

DEPARTMENT,

Defendants,

and

COUNTY OF GLOUCESTER,

Defendant-Appellant.

___________________________________

 

Argued October 1, 2007 - Decided

Before Judges Lintner and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County,

L-1286-06.

Jaunice Canning argued the cause for appellant (Edward H. Keiper, attorney; Ms. Canning, on the brief).

Joel Wayne Garber argued the cause for respondent (Garber Law, attorneys; Mr. Garber, on the brief).

PER CURIAM

The County of Gloucester (County), appeals from a Law Division order granting the motion of plaintiff, Colleen Bauman, individually and as Administratrix of the Estate of Christopher Bauman, to amend a timely Notice of Tort Claim filed on behalf of the Estate. The County contends that its Notice of Appeal was filed as a matter of right pursuant to R. 2:2-3(a)(3). We disagree and dismiss this appeal as improvidently filed.

On August 18, 2005, Christopher Bauman (Christopher) was involved in a motor vehicle accident in Glassboro that resulted in his death and the deaths of Jeremy Bauman and Daisy Gwin. At the time of the accident, Christopher was riding as a passenger on Jeremy's motorcycle, which was involved in a collision with Gwin's car at the intersection of Higgins Drive and Ellis Street. Gwin had been traveling on Higgins Drive, a municipal road controlled with a stop sign. Ellis Street is a county roadway. Because all the individuals involved in the accident died, there were no known eyewitnesses.

Christopher's parents, as representatives of his estate, filed Notices of Tort Claim, on October 10, 2005, with Gloucester County, Glassboro, and the Glassboro Police Department. The notices set forth that the accident occurred on August 19, 2005, at the intersection of Higgins Drive and Ellis Street. They described the occurrence as "Claimant sustained a fatal injury as result of an unlawful police chase." They also set forth that the injury suffered was death and that the public entities responsible were the County of Gloucester, Borough of Glassboro, Glassboro Police Department, "[a]nd any entity and/or independent contractor performing services on [their] behalf." The notices also listed the address of each entity and stated that "[d]amages are unliquidated, but plaintiff seeks compensatory damages."

Glassboro, through its claims agency, requested the Estate to fill out a specific claim form, N.J.S.A. 59:8-6, requesting additional information. On November 15, 2005, the Estate filled out the form, indicating that the accident occurred on August 18, 2005, its location, and approximate time, there were no known witnesses, the injury was death, and that it had been advised by the Glassboro Police Department that the police report was not complete because of an ongoing investigation by the prosecutor's office. Where asked if the injury is claimed to have been caused by "a dangerous condition of property under control of the public entity," the estate answered "[u]nlawful police chase."

Plaintiffs retained a private investigator, Kerry B. Tucker, to inquire into the circumstances surrounding the accident. Tucker submitted an affidavit on September 19, 2006. After surveying the scene, Tucker stated that the "stop sign on the northwest corner of Higgins Drive . . . is approximately 25' 10" from the intersection." This distance, Tucker observed, would render an individual stopping at said sign unable to see "any traffic traveling east and/or west of Ellis Street," requiring the individual to "drive their vehicle well past the stop sign in an attempt to observe oncoming traffic on Ellis Street."

On August 16, 2006, the Estate filed its motion to amend its tort claim notice or, in the alternative, for leave to file a late notice of claim. The County appeared in opposition at oral argument in the Law Division on September 22, 2006. Following argument, the judge made the following ruling:

I'm satisfied that there was a timely Notice [of Claim] filed and I am also satisfied that the intersection collision resulting in the fatality, by its very nature implicates the stop sign. And that it would be unfair to preclude plaintiff who, in an abundance of caution has filed this motion to amend, so that I will grant it.

I do not rule on the substantial compliance issue since I find that the cause of action is already part of the first Notice that was properly filed. It is my view that while you must provide a description of the occurrence, you need not set forth with specificity the particular allegations of a complaint.

An order filed by the Estate's counsel merely recited that its motion (to amend or alternatively file leave to file a late notice of claim) was granted without specifying that the judge's ruling was to permit the Estate to amend its previously filed Notice of Claim.

The County filed its notice of appeal on October 31, 2006. R. 2:2-3(a), as amended in September 2006, provides that "[a]n order granting or denying a motion to extend the time to file a notice of a tort claim pursuant to N.J.S.A. 59:8-9 . . . shall . . . be deemed a final judgment of the court for appeal purposes" and may be appealed as of right. N.J.S.A. 59:8-9 deals with "claimant[s] who fail[] to file notice of . . . claim within 90 days as provided in section 59:8-8" of the Tort Claims Act (Act). The pertinent language in rule R. 2:2-3(a) was added to permit appeals of "orders deciding motions for leave to file a late notice of tort claim against a public entity pursuant to N.J.S.A. 59:8-9." Pressler, Current N.J. Court Rules, comment 1.1 on R. 2:2-3 (2007).

N.J.S.A. 59:8-8 entitled, "Time for presentation of claim" requires, in pertinent part, that the a notice of claim as required by N.J.S.A. 59:8-3 and -4 must be presented "not later than the ninetieth day after accrual of the cause of action."

Generally, where there is a conflict between a judge's opinion and a subsequent written order, the former controls. State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956); see also State v. Warmbrun, 277 N.J. Super. 51, 58 n.2 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). Although the order filed memorializing the grant of the Estate's motion is somewhat confusing, it is clear from the judge's opinion that she was permitting the Estate to amend its previously timely filed notice of claim under N.J.S.A. 59:8-8.

The Law Division order did not extend the time in which the Estate could file a late notice of claim under N.J.S.A. 59:8-9, thus, this appeal is not properly before us. The judge's order permitting the Estate to amend its previously filed notice of claim is obviously interlocutory. Such interlocutory adjudications are appealable only on leave granted pursuant to R. 2:5-6. Granting leave is within our exclusive authority as an exercise of our discretion "in the interest of justice." R. 2:2-4. It is the exclusive prerogative of this court to determine whether extraordinary circumstances are present warranting a piecemeal appeal. See, e.g., Fu v. Fu, 309 N.J. Super. 435, 439-40 (App. Div. 1998), rev'd and remanded, 160 N.J. 198 (1999); Hallowell v. American Honda Motor Co., Inc., 297 N.J. Super. 314, 318 (App. Div. 1997); DeFelice v. Beall, 274 N.J. Super. 592, 595 n.1 (App. Div.), certif. denied, 138 N.J. 268 (1994); Kurzman v. Appicie, 273 N.J. Super. 189, 191-92 (App. Div. 1994); Procanik v. Cillo, 226 N.J. Super. 132, 143 n.4 (App. Div.), certif. denied, 113 N.J. 357 (1988); DiMarino v. Wishkin, 195 N.J. Super. 390, 395-96 (App. Div. 1984).

The County attempts to bypass those procedures by claiming that the judge's order permits an appeal as a matter of right because the "rule amendment was drafted to prevent a public entity from having to participate in litigation." Our calendar is not subject to a party's whim, or self-serving misinterpretation of the law. The rule was intended to afford a public entity the right to appellate review of a Law Division finding that there are sufficient reasons constituting extraordinary circumstances for permitting the filing of a late notice of claim. See N.J.S.A. 59:8-9.

Beyond that, we decline to accept this appeal on an interlocutory basis. There is nothing in this record to justify, on the basis of an interest in justice, our granting of leave to accept this appeal. Indeed, the circumstances dictate otherwise. The permitted amendment is unlikely to impact the County prejudicially, as the stop sign controlling the intersection is located on the municipal road. Moreover, as noted by the judge, N.J.S.A. 59:8-4 does not by its terms require a claimant to provide a legal theory, only the date, place, and other circumstances of the occurrence. Here, the Estate provided, at the time it filed its Notice of Claim, the limited information it had concerning that criteria, given the lack of eyewitnesses and survivors to this accident. Both the municipality, which chose not to participate in this appeal, and the County possessed the same information as the Estate. Any further information was at least equally available to all the parties through further investigation and discovery. Indeed, the County Prosecutor's ongoing investigation and the initial refusal to supply the police report to the Estate leads to an inescapable inference that the County and municipality, both of which were in possession of the police report, were in a better position than the Estate to obtain information concerning the happening of the accident.

Accordingly, we dismiss this appeal as improperly filed.

Although named as a plaintiff in the motion, at the time the motion was filed a civil complaint had not been filed.

Glassboro did not appear at oral argument and does not participate in this appeal.

(continued)

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8

A-1294-06T2

October 12, 2007