MARLA SOFFER v. GENERAL MOTORS CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1933-08T2

MARLA SOFFER, Administratrix

of the ESTATE OF DAVID ARENAS,

Deceased,

Plaintiff-Respondent,

v.

GENERAL MOTORS CORPORATION,

Defendant,

and

M&M MOTORS,

Defendant-Appellant.

________________________________________________________________

August 11, 2011

 

Argued January 24, 2011 - Decided

 

Before Judges Lisa and Sabatino.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4326-08.

 

Walter F. Kawalec, III argued the cause for appellant (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Kawalec, on the briefs).

 

Eric G. Zajac (Zajac & Arias, L.L.C.) argued the cause for respondent.

 

 

PER CURIAM

The dispositive issue in this appeal is whether New Jersey possesses subject matter jurisdiction over plaintiff's wrongful death and survival action arising out of the death of David Arenas, who was killed in a vehicular accident that occurred in New Jersey. The trial court entered an order on October 10, 2008 granting plaintiff's motion for a declaratory judgment on jurisdiction, in which it "DECLINE[D] TO ACCEPT JURISDICTION over this action, respectfully instructing Plaintiff to re-file in the Court of Common Pleas of Philadelphia County." The order stated that plaintiff's motion was granted "without prejudice." The court denied defendants' reconsideration motion by order of November 28, 2008. Defendant M&M Motors (M&M) appeals.1 For the reasons that follow, we reverse.

At the time of his death, Arenas was a resident of Northampton County, Pennsylvania. He worked in New Jersey. While returning home from work on December 2, 2005, the vehicle he was driving crossed the center line and collided head-on with another vehicle in Warren County, New Jersey. Arenas was killed on impact.

At that time, Arenas was not married and had no children. However, Arenas' girlfriend, who also lived in Pennsylvania, was pregnant with his child, to whom she gave birth after Arenas' death. That infant child lives in Northampton County, Pennsylvania.2

When involved in the fatal accident, Arenas was driving a 1998 Chevrolet Cavalier that was owned by his roommate, Hector Gonzalez. The vehicle had been manufactured by GM. Gonzalez had purchased it used from M&M.

Plaintiff did not sue the other driver involved in the collision. Apparently there is no dispute that the accident was Arenas' fault. Instead, plaintiff sued the manufacturer and seller of the vehicle, alleging a lack of crashworthiness because the driver's-side airbag did not deploy and Arenas' seatbelt failed upon impact.

Plaintiff initially filed her action in the Court of Common Pleas in Philadelphia County, Pennsylvania. The action was commenced by filing a praecipe for a writ of summons on November 21, 2007, followed by a complaint filed on January 16, 2008. Thus, under Pennsylvania's filing procedures, the action was commenced less that two years after Arenas' death. See 42 Pa. Cons. Stat. 5503 (2011); Johnson v. Allgeier, 852 A.2d 1235, 1236-37 (Pa. Super. Ct. 2004) (citing Lamp v. Heyman, 366 A.2d 882, 885 (Pa. 1976)). The complaint contained seven counts: (1) strict liability against GM, (2) negligence against GM, (3) breach of warranty against GM, (4) strict liability against M&M, (5) breach of warranty against M&M, (6) a wrongful death claim against both defendants, and (7) a survival claim against both defendants.

The complaint alleged that M&M was a Pennsylvania business, and GM was a Delaware corporation doing business in Pennsylvania.

M&M and GM moved for dismissal on forum non conveniens grounds. They argued that the accident happened in New Jersey, most of the witnesses would be from New Jersey, New Jersey had a greater interest in the safety of motorists on its highways, and the action would more properly be brought in New Jersey. They represented to the court that if the action were re-filed in New Jersey, they would waive any statute of limitation defenses with respect to any of plaintiff's claims that would be viable if filed on the Pennsylvania filing date, November 21, 2007.

On June 20, 2008, the court granted the motion and dismissed the Pennsylvania action "without prejudice to re-file the action in New Jersey." A forum non conveniens dismissal cannot be granted under Pennsylvania law unless an alternative forum is available to the plaintiff. Humes v. Eckerd Corp., 807 A.2d 290, 293-94 (Pa. Super. Ct. 2002). The Court of Common Pleas judge was satisfied that New Jersey was an available forum because the applicable New Jersey statute of limitations was waivable and both defendants agreed to waive it.

Faced with this ruling, plaintiff promptly did two things in Pennsylvania. She filed for reconsideration in the Court of Common Pleas, and filed an appeal in the Superior Court of Pennsylvania. The reconsideration motion was denied on July 18, 2008.

On August 22, 2008, while her appeal in Pennsylvania was pending, plaintiff filed a complaint in Camden County, making the same claims against GM and M&M as she had made in her Pennsylvania complaint. Plaintiff did no essentially as a protective measure while she attempted to restore her lawsuit in the Pennsylvania courts. Neither GM nor M&M asserted a statute of limitations defense in their answers.

On September 18, 2008, plaintiff filed a motion requesting a declaratory judgment regarding jurisdiction. The sole issue she raised in the motion was whether New Jersey lacked subject matter jurisdiction because the New Jersey filing, albeit filed by her, was more than two years after Arenas' death, and therefore the claim was barred by the statute of limitations. The New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, requires that, subject to exceptions not applicable here, any action "shall be commenced within 2 years after the death of the decedent, and not thereafter." N.J.S.A. 2A:31-3 (emphasis added). Relying on this court's decision in Lombardi v. Simon, 266 N.J. Super. 708 (App. Div. 1993), plaintiff argued that this limitation period is substantive in nature, and not procedural, as a result of which it cannot be tolled or waived.

In opposing the motion, defendants reiterated the representation they had made to the Pennsylvania court that they would waive any applicable statute of limitations defense. Indeed, they pointed out that they had asserted no such defense in their responsive pleadings. They further argued that plaintiff's New Jersey complaint was timely filed under the doctrine of substantial compliance.

Plaintiff also argued that not all pertinent parties had agreed to waive the statute of limitations. This is because in the Pennsylvania action, defendants had brought third-party claims against two additional parties, namely, Gonzalez and Muller Chevrolet Isuzu, Inc., which had previously sold the car to M&M. However, M&M and GM had not filed third-party complaints against those parties or any other parties in the New Jersey action. Therefore, in the posture in which the case came before the court on plaintiff's motion for declaratory judgment, the only relevant parties were plaintiff, GM and M&M.

The trial court granted the motion on October 10, 2008, without oral argument. In his oral decision, the judge's reasoning was unclear as to whether he based his decision on a lack of subject matter jurisdiction or forum non conveniens principles.

In our view, the judge found a lack of subject matter jurisdiction. First and foremost, that was the only issue before him. In the course of his opinion, the judge said: "The proper jurisdiction of these proceedings is indeed the State of Pennsylvania, the situs where the plaintiff lives; the situs where the plaintiff instituted litigation." The judge then went on to offer some commentary on the subject of forum non conveniens, an issue that had not been raised by any of the parties. Following that commentary, the judge reiterated: "I am just satisfied that the proper jurisdiction and venue in this matter, in light of that which I have just set forth on the record, is indeed Philadelphia, Pennsylvania." The judge then ordered the matter dismissed without prejudice and "referred" it "back to the State of Pennsylvania." The judge's comments, combined with the wording of the order, which we quoted earlier in this opinion, convince us that the judge found a lack of jurisdiction. Again, this conclusion is bolstered by the fact that an absence of jurisdiction because of expiration of a substantive statute of limitations was the very declaratory relief plaintiff sought in her motion.

M&M argues on appeal that the standard of review is unclear because the trial court was ambiguous as to whether it decided the motion for declaratory judgment based upon subject matter jurisdiction or forum non conveniens grounds. Plaintiff responds that the court's ruling was clearly a jurisdictional decision. For the reasons we have stated, we agree with plaintiff.

Accordingly, we are not guided by an abuse of discretion standard, which would apply had the dismissal been on forum non conveniens grounds. Instead, the issue before us involves only a question of law, and our review is plenary. State v. Schumann, 111 N.J. 470, 475 (1988). In these circumstances, "[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).

While this appeal was pending, the Superior Court of Pennsylvania issued its decision on January 31, 2011.3 The court agreed that the findings of the Court of Common Pleas supported the conclusion that Pennsylvania's forum non conveniens criteria were satisfied, so long as New Jersey provides a viable alternative venue. Therefore, because the Law Division in Camden County had dismissed plaintiff's action and an appeal from that dismissal was pending before this court, the Superior Court of Pennsylvania concluded that "the Philadelphia County action cannot be dismissed on forum non conveniens grounds since it is dependent upon the availability of the alternative forum of New Jersey." Thus, the court reversed the order of the Court of Common Pleas and remanded the matter to that court with directions to stay proceedings pending resolution of the appeal in New Jersey. The court then directed that

[i]f the appellate court in New Jersey decides that the case may be filed in New Jersey, then the trial court in Philadelphia County may dismiss the proceedings. On the other hand, if the New Jersey court decides that it cannot hear the case, then the courts in Philadelphia County will have to determine the proper venue of the case in Pennsylvania.4

It is in this idiosyncratic posture that the case is now before us, and our task is to determine the narrow issue of whether, in light of the course of events we have described, New Jersey possesses subject matter jurisdiction over this litigation.

State courts are invested with general jurisdiction, and are presumed to have subject matter jurisdiction over a given claim unless proven otherwise. Thompson v. City of Atlantic City, 190 N.J. 359, 378 79 (2007) (citing Turner v. Bank of N. Am., 4 U.S. (4 Dall.) 8, 11, 1 L. Ed. 718, 719 (1799)). Courts may determine, sua sponte, whether they have subject matter jurisdiction over a given claim. See R. 4:6-7 ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the matter . . . ."); Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 65 66 (1978) ("Objection to jurisdiction of the court over the subject matter is effective whenever made.").

We first discuss the doctrine of substantial compliance in the context of this case. Regardless of whether the statute of limitations in the Wrongful Death Act is deemed substantive or procedural, plaintiff's complaint in New Jersey was timely filed under the substantial compliance doctrine.

The case before us is materially the same as that decided by the New Jersey Supreme Court in Negron v. Llarena, 156 N.J. 296 (1998). There, a New York resident, injured in a New Jersey vehicular accident, died after receiving medical treatment in a New Jersey hospital. Id. at 298-99. His surviving spouse, also a New York resident, sued the hospital in the federal District Court in New York, based upon diversity of citizenship jurisdiction. Id. at 298. The case was subsequently transferred to the federal District Court in New Jersey. Id. at 299. As the case progressed, the hospital was dismissed and other parties were added. Ibid. It was determined that diversity jurisdiction no longer existed and the case was voluntarily dismissed. Ibid. The dismissal occurred nearly four years after the decedent's death. Ibid. Within three months after the dismissal, plaintiff filed a new compliant in the Law Division. Ibid.

The trial court denied the defendants' motion to dismiss on statute of limitations grounds. Ibid. We reversed, holding that the limitation period in the Wrongful Death Act is substantive and could not be tolled. Id. at 299-301.

The Supreme Court reversed our decision and ordered the complaint reinstated. The Court agreed that the Wrongful Death Act limitation provision was substantive. However, the Court explained that it is necessary to look "beyond the form of the limitations period, that is, whether it was 'substantive' or 'procedural,' to determine whether the tolling of the limitations period would effectuate the legislative purpose of the statute." Id. at 304. The Court reasoned that there was nothing in the history or objectives of the Wrongful Death Act "'that suggests the Legislature intended to foreclose the familiar doctrine of substantial compliance in the [statute of limitations] context.'" Id. at 304 (quoting Cornblatt v. Barow, 153 N.J. 218, 240 (1998), abrogated, in part, on other grounds, Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 149 (2003)).

Thus, the substantial compliance doctrine would allow for the flexible application of the statute in appropriate circumstances. Ibid. The Court held that in circumstances in which an action was timely filed in an appropriate forum, "we can turn initially to [the substantial compliance] doctrine to determine whether the condition implicit in the statute of limitations may be deemed to have been satisfied and whether plaintiff's complaint was timely filed." Ibid.

The court then listed the well-settled factors for evaluating whether there was substantial compliance:

(1) the lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of petitioner's claim[;] and (5) a reasonable explanation why there was not a strict compliance with the statute.

 

[Id. at 305 (quoting Bernstein v. Bd. of Trs. of Teachers' Pension & Annuity Fund, 151 N.J. Super. 71, 76-77 (1977)), adopted by Cornblatt, supra, 153 N.J. at 239-40.]

 

The Court concluded that all five factors were satisfied and the complaint was therefore deemed timely. Id. at 305-07.

Application of the Bernstein factors leads to the same result in the case before us. Defendants obviously are not prejudiced, and they do not assert any prejudice. Indeed, they invited the tolled filing in New Jersey. Plaintiff took a series of steps to comply with the two-year limitation period and, like in Negron, filed her lawsuit in an appropriate forum within that time. This constituted general compliance with the purpose of the statute, namely to place defendants on notice of the claim in a timely manner. Defendants obviously had reasonable notice of the claim when they were served in Pennsylvania. Finally, there is a reasonable explanation as to why there was not strict compliance. Plaintiff chose Pennsylvania as her forum. The Pennsylvania courts do not deny that Pennsylvania has jurisdiction over the subject matter of this litigation. Indeed, if New Jersey found a lack of jurisdiction, the matter could proceed in Pennsylvania. Therefore, the reason for not filing within two years in New Jersey is reasonably explained by the filing within that time in Pennsylvania.

We recognize, of course, that unlike in Negron, the parties here are on opposite sides of the argument. In Negron, as in most cases where the substantial compliance doctrine is invoked, the doctrine was invoked by a plaintiff to save her complaint against an opposing defendant who was seeking to prevent the claim from going forward. Here, it is the opposite. If this were the only basis upon which defendants sought to establish jurisdiction, we might view differently the applicability of the substantial compliance doctrine, which is an equitable doctrine designed to protect the deficient party, not to defeat that party's position.

If the doctrine were invoked by plaintiff, the result would be the same. In this inverted context, however, we do not rely upon the doctrine as the basis for our ultimate conclusion. The doctrine provides a backdrop to the primary basis for finding jurisdiction. It provides the framework within which a complaint was filed within the required two-year period. However, the primary basis for finding jurisdiction in this case is tolling for the benefit of a minor and waiver of the statute of limitations by defendants. Nevertheless, the substantial compliance doctrine adds further weight to our ultimate conclusion.

The primary basis for finding jurisdiction in New Jersey is rather straightforward. Putting aside the traditional distinctions between substantive and procedural statutes of limitations, in LaFage v. Jani, 166 N.J. 412 (2001), a five- member majority of the New Jersey Supreme Court concluded that, even if the limitation period in the Wrongful Death Act is deemed substantive, the minority tolling provision of N.J.S.A. 2A:14-21 applies to it. Id. at 429-31.5

At the time of Arenas' death, he was not married and did not have a domestic partner. His after-born infant child, therefore, is the only person entitled to recover the proceeds of the wrongful death claim. N.J.S.A. 2A:31-4; N.J.S.A. 3B:5-4a. Under the holding in LaFage, N.J.S.A. 2A:14-21 tolls the time when the statute of limitations on the wrongful death claim will begin to run until that infant child reaches age twenty-one. Therefore, even without any consideration of the substantial compliance doctrine or the waiver by defendants of the statute of limitations, the wrongful death claim was timely filed in New Jersey on August 22, 2008.

In LaFage, a four-member majority of the Court6 also found an additional reason why tolling for minors should apply to the Wrongful Death Act, namely, that "wrongful death claims were cognizable at common law." LaFage, supra, 166 N.J. at 431. The four-member majority adopted Justice Handler's concurring opinion in Negron, which concluded that the Wrongful Death Act is a codification of New Jersey's common law. Id. at 434. Thus:

The practical effect of recognizing a common law wrongful death claim is that it provides an independent basis on which to allow equitable tolling of the Wrongful Death Act. Such recognition demonstrates that the statute of limitations contained in N.J.S.A. 2A:31-3 is procedural and therefore indisputably subject to equitable principles.

 

[Ibid.]

 

Under either rationale, it is abundantly clear that New Jersey possesses subject matter jurisdiction over plaintiff's wrongful death claim. LaFage effectively overruled Lombardi, and plaintiff's continuing reliance on Lombardi is misplaced.

Plaintiff argues, however, that even if this is so, the filing of the survival claim in New Jersey more than two years after Arenas' death was untimely and could not be construed otherwise by the application of minority tolling principles because the claim belongs to the estate, not Arenas' minor child. See LaFage, supra, 166 N.J. at 440-41. We disagree.

This claim was brought under the Survival Act, N.J.S.A. 2A:15-3, which authorizes recovery by the decedent's representative of "all reasonable funeral and burial expenses in addition to damages accrued during the lifetime of the deceased." Plaintiff argues that, as in LaFage, no basis exists to toll the two-year limitation period applicable to a survival action.7 We reject plaintiff's argument.

We initially note that the survival claim in this case would, in all likelihood, be limited primarily (if not entirely) to funeral and burial expenses. In her pleadings plaintiff alleged that Arenas was "killed on impact." Thus, we expect that there would be little or no proof of any conscious pain and suffering during Arenas' lifetime caused by this accident. It is therefore apparent that the primary claim here is that brought on behalf of Arenas' infant child under the Wrongful Death Act.

A statute of limitations defense is not self-executing, but must be asserted by a defendant as an affirmative defense. R. 4:5-4; Zaccardi v. Becker, 88 N.J. 245, 256 (1982). If not pled as an affirmative defense, it is deemed waived. R. 4:5-4.

Plaintiff does not contend that a substantive statute of limitations applied to survival actions at the time she filed her New Jersey complaint. In those circumstances, no basis would exist to deem the limitation provision inflexible and immutable, such that a court would be deprived of jurisdiction regarding a complaint filed more than two years after decedent's death. Because defendants did not plead the limitation provision as an affirmative defense and, indeed, affirmatively waived it, no basis was provided to preclude plaintiff's survival action from proceeding. This circumstance materially distinguishes this case from LaFage, in which the defense successfully asserted an affirmative statute of limitations defense to the survival claim.

Further, the substantial compliance doctrine provides the same background with the survival claim as with the wrongful death claim. The survival claim was filed within two years in an appropriate court, which subsequently entered an order under the laws of that forum provisionally dismissing the complaint on forum non conveniens grounds. Plaintiff promptly re-filed the action, including the survival claim, in New Jersey. As we have previously explained, all of the substantial compliance criteria have been satisfied. Thus, although it is not the basis for our ultimate determination, under the substantial compliance doctrine rationale of Negron and other cases, the action can proceed in New Jersey. See, e.g., Galligan v. Westfield Ctr. Serv., Inc., 82 N.J. 188, 193-94 (1980); Mitzner v. W. Ridgelawn Cemetery, Inc., 311 N.J. Super. 233, 239-40 (App. Div. 1998).

We are satisfied that defendants' waiver of (or failure to affirmatively plead) the defense of failure to comply with the statute of limitations with respect to the survival action is effective. In that circumstance, New Jersey courts are not deprived of subject matter jurisdiction. This result is a fair and equitable one, particularly in light of our conclusion that the primary claim here, the wrongful death claim, was timely filed.

Accordingly, we conclude that the trial court erred in declaring that New Jersey does not possess subject matter jurisdiction over this litigation. For that reason, we reverse the orders under review and remand for further proceedings.

To the extent that the trial court's oral opinion can be construed to have discussed forum non conveniens as a possible basis for its orders, we decline to discuss the issue because it was not raised before the trial court in plaintiff's motion, nor by any response of defendants. Therefore, the issue is not cognizable on appeal. Nieder v. Royal Idem. Ins. Co., 62 N.J. 229, 234 (1973).

Finally, nothing in this opinion should be construed as a comment on the appropriate venue of this action within New Jersey or upon any choice of law issues that might be presented by this litigation.

Reversed and remanded.

 

 

1 General Motors Corporation (GM) filed a separate appeal (A-1938-08). When GM filed for bankruptcy, both appeals were dismissed. Subsequently, M&M's motion for reinstatement of its appeal was granted. GM did not move for reinstatement, as a result of which the only appeal before us is that of M&M.

2 Marla Soffer, the administratrix of Arenas' estate, is not the child's mother. She is an attorney who lives in Philadelphia.

3 The parties have not informed us whether further review is being sought in the Pennsylvania Supreme Court.

4 Indeed, in her appellate brief in this appeal, filed while the Pennsylvania appeal was pending, plaintiff urged us to dismiss the New Jersey appeal without prejudice, allowing for resolution of the Pennsylvania appeal, which, according to plaintiff, would be dispositive. Plaintiff framed the issue in her appellate brief in substantially the same way the Pennsylvania appeals court subsequently stated it. She said:

[Plaintiff] expects to be successful in her Pennsylvania appeal . . . . Regardless of the outcome, the Pennsylvania appeal will be dispositive of the issue: if [plaintiff] is successful, this case will be litigated in the forum in which it was primarily and properly filed - Pennsylvania. In the unlikely event that [plaintiff] is unsuccessful in her Pennsylvania appeal[,] the action will proceed in the appropriate New Jersey trial court.

5 Chief Justice Poritz and Justices Stein, Coleman, Long, and Zazzali joined in that portion of the majority opinion. LaFage, supra, 166 N.J. at 465.

6 Because he found it unnecessary to address or resolve the issue of whether the Wrongful Death Act statute of limitations is substantive or procedural, Justice Stein did not join in this portion of the majority's opinion. LaFage, supra, 166 N.J. at 465.

7 We note that in 2009, N.J.S.A. 2A:15-3 was amended to add a specific limitation period, which is similar to that in the Wrongful Death Act, N.J.S.A. 2A:31-3, which requires survival actions to be commenced within two years of the decedent's death "and not thereafter." L. 2009, c. 266 1. However, by its terms, the amendment did not take effect until January 17, 2010, and applied to actions then pending or filed thereafter. L. 2009, c. 226, 2. That amendatory provision, therefore, was not applicable to the action in this case, which was filed in New Jersey on August 22, 2008.