NICHOLAS R. BARBIERI v. JOHN D. MAYER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NICHOLAS R. BARBIERI,

Plaintiff-Appellant,

v.

JOHN D. MAYER and BOROUGH

OF SPOTSWOOD,

Defendants-Respondents.

________________________________

December 21, 2015

Argued November 9, 2015 - Decided

Before Judges Sabatino and Suter.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6153-10.

John R. Gorman argued the cause for appellant (Lutz, Shafranski, Gorman and Mahoney, P.A., attorneys; Mr. Gorman, of counsel and on the brief; Randi S. Greenberg, on the brief).

Brian J. Chabarek argued the cause for respondents (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Mr. Chabarek, of counsel and on the brief; Leslie S. Park, on the brief).

PER CURIAM

This Title 59 case involves a plaintiff's failure to serve a timely notice of tort claim. The trial court granted summary judgment in favor of defendants because of that failure. On appeal, plaintiff raises various equitable arguments for reviving his lawsuit in spite of his noncompliance with the statutory notice requirements. For the reasons that follow, we reject those arguments, and affirm.

The record shows that on September 8, 2008, plaintiff Nicholas R. Barbieri was struck and injured by a garbage truck owned by defendant Borough of Spotswood and operated by its employee, co-defendant John D. Mayer. The Borough is covered by the county's municipal joint insurance fund for claims brought under the Tort Claims Act ("TCA" or "the Act"), N.J.S.A. 59:1-1 to 59:12-3. A claims adjuster for the fund, Thomas Kurtz, was notified of the accident later that day. That same day, Kurtz mailed plaintiff a notice of claim form with instructions on how to fill it out. After not receiving a response, Kurtz mailed a second copy of the claim form to plaintiff on October 16, 2008.

The attorney who was representing plaintiff at the time apparently completed the claim form, but he never mailed it back to Kurtz or the Borough. The ninety-day period prescribed by N.J.S.A. 59:8-81 for serving a notice of claim elapsed on December 7, 2008. In addition, the extended period of one year for serving a late notice of claim in instances of proven "extraordinary circumstances" elapsed on September 8, 2009.2

Eventually, in August 2010, plaintiff's original counsel filed a complaint in the Law Division against defendants within the two-year statute of limitations. See N.J.S.A. 59:8-9. The complaint was administratively dismissed for lack of prosecution in March 2011. Subsequently, plaintiff's attorney's license to practice law was suspended in April 2012, for failure to cooperate with disciplinary authorities concerning another client's complaint, after having earlier been reprimanded for gross negligence and lack of due diligence unrelated to the present case.

Plaintiff retained his present counsel in May 2012. His new counsel contacted the defendants' claims adjuster, Kurtz, who informed him in August 2012 that the public entity had never received a completed notice of claim form. Kurtz also mailed plaintiff's current counsel a letter on November 14, 2012, stating that plaintiff's claim was being rejected for failure to file a timely notice.

In November 2012, plaintiff's current counsel moved to reinstate the complaint, and the trial court granted the motion in December 2012. Defendants filed an answer denying liability and asserting, among other affirmative defenses, a failure by plaintiff to serve a timely notice of claim in compliance with N.J.S.A. 59:8-8.

Discovery proceeded for over a year. The discovery included the deposition of plaintiff, as well as plaintiff's submission to multiple independent medical examinations requested by the defense.

After discovery ended, defendants moved for summary judgment, contending that the lawsuit is barred by statute because of plaintiff's failure to file the required notice of claim. The trial court granted that motion in an oral opinion issued by Judge Barry A. Weisberg on August 22, 2014. Judge Weisberg noted that there is "absolutely no dispute" that plaintiff and his then-attorney failed to file a notice of claim within the time required under the TCA.

The judge rejected plaintiff's argument that defendants should be equitably estopped from invoking the notice requirement. The judge did question defense counsel extensively about why his office had waited until June 2014 to move to dismiss the complaint for noncompliance with N.J.S.A. 59:8-8. Nevertheless, the judge concluded that the Legislature's policies underlying the TCA's notice requirements mandated dismissal in this case. As the judge noted in his oral opinion, "the public entity [in this case] has from day one insisted on its right to notice of claim by sending, literally sending the forms twice to . . . plaintiff and raising the defense in its initial pleading[,]" thus suggesting it had never "in any way . . . equitably waive[d]" the failure of notice defense.

On appeal, plaintiff contends that the trial court erred in declining to preserve his case under principles of equitable estoppel. He also invokes the equitable doctrine of laches. Neither of these arguments are compelling. Nor do they permit us to disregard plaintiff's uncontested failure to file a timely notice in compliance with the statute.

As the Supreme Court continues to reaffirm, the "guiding principle" of the TCA is "that 'immunity from tort liability is the general rule and liability is the exception.'" D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 133 (2013) (quoting Coyne v. State Dep't of Transp., 182 N.J. 481, 488 (2005)). "The Legislature's waiver of sovereign immunity remains a limited one and [this court is] not free to expand that waiver beyond its statutorily-established boundaries." Id. at 158.

As the Court further instructed in D.D., our courts may not "permit sympathy for a particular plaintiff to obscure the statutory standard [for a timely notice of claim] to the point of obliterating it." Id. at 158. This is because "[t]he Legislature has commanded that [such] relief be granted only in circumstances that are extraordinary." Ibid. Hence, neither "an attorney's inattention, [n]or even an attorney's malpractice, constitutes an extraordinary circumstance sufficient" to permit filing a notice of claim outside of the one-year window of N.J.S.A. 59:8-9, even if there is a lack of prejudice to the plaintiff. Id. at 156; see also Beauchamp v. Amedio, 164 N.J. 111, 118 (2000) (explaining the more stringent standards for timely claim notices following the TCA's amendment in 1994).

The Legislature has directed that "[n]o action shall be brought against a public entity . . . under th[e] [TCA] unless the claim upon which it is based shall have been presented in accordance with the procedure set forth" by the Act. N.J.S.A. 59:8-3 (emphasis added). Claimants "shall be forever barred from recovering against a public entity" if, among other things, the claimant "failed to file [the] claim with the public entity within [ninety] days of accrual of [the] claim except as otherwise provided in N.J.S.A. 59:8-9[.]" N.J.S.A. 59:8-8(a) (emphasis added).

Time after time this court has made abundantly clear that, after the ninety-day deadline has passed and a plaintiff has not utilized the procedure under N.J.S.A. 59:8-9 to obtain an extension of that period up to one year, courts lack jurisdiction to entertain tort claims if the required notices were not timely filed. See, e.g., Iaconianni v. N.J. Tpk. Auth., 236 N.J. Super. 294, 298 (App. Div. 1989), certif. denied, 121 N.J. 592 (1990) ("Because the late notice of claim was filed well beyond the one-year outer limit, the trial court had no jurisdiction to extend the filing period."); see also Pilonero v. Twp. of Old Bridge, 236 N.J. Super. 529, 532 (App. Div. 1989) ("After the one-year limitation has passed, 'the court is without authority to relieve a plaintiff from his failure to have filed a notice of claim, and a consequent action at law must fail.'") (quoting Speer v. Armstrong, 168 N.J. Super. 251, 255 (App. Div. 1979)). Indeed, the filing of a late notice of claim with the public entity, in the absence of prior court approval pursuant to N.J.S.A. 59:8-9, has been deemed a nullity. Rogers v. Cape May Cty., 208 N.J. 414, 427 (2011).

As Judge Weisberg correctly recognized, none of the equitable arguments raised by plaintiff in this unfortunate situation can circumvent these principles and salvage his lawsuit. We address them briefly.

First, the doctrine of equitable estoppel is unavailing here because there is no evidence that defendants or their claims adjuster ever made any representations or engaged in any conduct indicating that they were somehow waiving the TCA's notice requirements. See, e.g., McDade v. Siazon, 208 N.J. 463, 480-81 (2011) (similarly rejecting a plaintiff's invocation of equitable estoppel to excuse his failure to file a timely tort claims notice upon the defendant public entity where, as here, the plaintiff never filed a motion under N.J.S.A. 59:8-9 to extend the time to serve the notice and where the defendant gave no indication that it was waiving the notice requirement).

The counter-examples cited by plaintiff of Anske v. Borough of Palisades Park, 139 N.J. Super. 342 (App. Div. 1976), and Hill v. Middletown Bd. of Educ., 183 N.J. Super. 36 (App. Div.), certif. denied, 91 N.J. 233 (1982), in which equitable estoppel was applied to excuse late tort claims notices, are not dispositive. Those cases preceded the 1994 statutory amendment that tightened the TCA's notice requirements and curtailed the exception in N.J.S.A. 59:8-9. If anything, the Supreme Court's more recent opinion in D.D. signals a strong judicial reluctance to bypass the statute's notice requirements. See generally D.D., supra, 213 N.J. at 156-60.

We are mindful, as was the motion judge here, that the defendants' claims adjuster was made aware of the accident on the day it occurred. However, awareness of that event alone does not fulfill the many other objectives of the TCA's notice provision, including a prompt opportunity before suit is filed to ascertain the extent of a plaintiff's claimed injuries and investigate his version of the precipitating events, as well as a chance to avoid litigation altogether through negotiation. See generally Beauchamp, supra, 164 N.J. at 121-22.

Unfortunately, plaintiff's original attorney was clearly remiss in following through with the service of a timely notice. By the time the case file was transferred to plaintiff's new counsel more than a year after the accident, it was simply too late for that oversight to be cured. As the Court underscored in D.D., an attorney's inattention cannot justify a plaintiff's noncompliance with the statute. D.D., supra, 213 N.J. at 156.

Second, principles of laches likewise do not compel the reversal of summary judgment in this case. For one thing, plaintiff did not raise a laches argument in the trial court. Consequently, we need not reach the issue. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Moreover, even if the doctrine of laches had been invoked in the summary judgment motion arguments, we are unpersuaded that defendants' delay in moving for dismissal was so egregious to be considered "inexcusable." See Knorr v. Smeal, 178 N.J. 169, 180-81 (2003) (applying principles of laches in a lawsuit involving private litigants, where a defendant had engaged in "inexcusable and unexplained delay" in asserting its rights "to the prejudice of the other party").

We share Judge Weisberg's pointed concern that defendants waited for over a year after filing their answer before they moved to dismiss the complaint under N.J.S.A. 59:8-8. During that eighteen-month time frame, defendants essentially wasted the time and resources of plaintiff, his counsel, and the court, which conducted one or more case management conferences in the matter. Plaintiff was forced to appear for a deposition and for multiple medical examinations. Even so, plaintiff had already been unambiguously alerted several times by Kurtz's communications and by defendants' answer that his belated claim was not going to be approved by defendants' joint insurance fund and paid.

Although we disapprove of the lackadaisical manner in which the defense in this case held off on filing its meritorious dispositive motion, we are unpersuaded that the Supreme Court or the Legislature would want the statute's mandatory notice provisions brushed aside in these circumstances. See, e.g., D.D., supra, 213 N.J. at 157 (declining to "permit wide latitude to claimants and [their] counsel to circumvent the statute's clear commands"). Indeed, Knorr, the leading case on laches relied upon by plaintiff, was a malpractice action against a private physician that did not involve public entity defendants and did not implicate the TCA's strong immunity-based policies. See Knorr, supra, 178 N.J. at 174-81.

We note in this regard that plaintiff has not argued that defendants should have been sanctioned in some other manner for dragging him through needless discovery. Hence, we do not reach the hypothetical question of whether other sanctions might have been available to the trial court under the Rules of Court to discourage and address such conduct.

Based upon the applicable law and the undisputed failure of plaintiff to serve a timely notice of claim, the order granting summary judgment is affirmed.3

1 This section of the TCA mandates that a plaintiff file with the public entity a tort claims notice "not later than the ninetieth day after accrual of the cause of action." N.J.S.A. 59:8-8.

2 See N.J.S.A. 59:8-9 (authorizing courts to allow the filing of a late notice of claim within one year of the claim's accrual, provided that the plaintiff demonstrates "extraordinary circumstances" to justify the delay and where the lateness does not "substantially prejudice[]" the defendant public entity or public employee).

3 Given this result, we do not address defendants' argument that plaintiff acted with unclean hands in continuing with this lawsuit after being advised that no timely claim notice had ever been served.