Significant New Jersey Liability Litigation Cases December 2014 to June 2015

Charitable immunity (hospitals).  Kuchera v. Jersey Shore Family Health Center, 2015 N.J. LEXIS 290 (March 31, 2015). The plaintiff slipped and fell while attending a free eye screening clinic at the Jersey Shore Family Health Center, a nonprofit charitable clinic in the Meridian Health systems. The Supreme Court found that this health care facility was not subject to the charitable immunity pursuant to N.J.S.A. 2A:53-7 (which would have made it immune from suit) but, rather, was subject to the limited liability afforded to nonprofit entities organized exclusively for hospital purposes pursuant to N.J.S.A. 2A:53A-8 (not immune from tort liability but subject to a $250,000 cap on damages).

Civil Procedure (consolidation).  Moraes v. Didi Wesler & Simony Wesler, 109 A.3d 218 (App. Div. 2015). The plaintiff Telma Moraes was injured in two different automobile accidents that occurred almost two years apart. She then sued for her injuries suffered in her second accident and filed a motion to consolidate the two lawsuits. The trial court denied the motion but the Appellate Division found that the trial court abused its discretion in refusing to consolidate the cases and reversed and remanded the cases back to be consolidated for discovery and trial.

Consumer Fraud Act (insurance products). Khan v. Conventus Inter-Insurance Exch., No. L-1253-13 (Law Div. Aug. 23, 2013)(approved for publication on April 29, 2015). Before the court could certify the plaintiff’s claim as a class action, the court had to determine whether the plaintiff’s claim that the defendant’s sale (and the plaintiff’s purchase) of medical malpractice insurance applied to the Consumer Fraud Act. The court found that, while the CFA generally applies to insurance as “merchandise” that is “offered, directly or indirectly to the public for sale,” the purchase of medical malpractice insurance requires one to be a doctor who must have “special qualification or licensure to purchase.” Thus the CFA did not apply.

Expert (net opinion rule).  Townsend v. Pierre, 2015 N.J. LEXIS 273, (March 12, 2015). The New Jersey Supreme Court addressed the net opinion rule in the context of an automobile accident negligence case. The Court ruled that the expert’s report was properly barred as a net opinion because it was contradicted by the facts in the record.

Expert.  James v. Ruiz, 2015 N.J. Super. LEXIS 46 (App. Div. March 25, 2015). The plaintiff was injured in an automobile accident and sued the other driver. The key issue was whether he suffered a permanent injury so as to meet the verbal threshold. Both sides presented competing expert testimony on that question. Court ruled that expert witness may not be questioned about whether his findings are consistent with report of non-testifying expert.

Insurance Coverage (counsel fees). Occhifinto v. Olivo Constr. Co.. LLC, 2015 N.J. LEXIS 508 (May 7, 2015). The plaintiff claimed the defendant, Keppler Contractors and others poorly constructed an addition to his warehouse and sought damages against it. Keppler’s insurance company filed a declaratory judgement action against Keppler challenging their requirement to defend it in the liability action. The plaintiff, on Keppler’s behalf, defended the declaratory judgment action and claimed the insurance company was required, by rule, to pay the counsel fees he incurred in defending the declaratory judgment action should he prevail. Though winning the declaratory judgment action, which required the insurance company to defend Keppler, the court reserved decision on counsel fees until after the liability action. The plaintiff lost the liability action but sought to recover counsel fees. After the trial court denied counsel fees, and the Appellate Division affirmed, the Supreme Court found that by obtaining a favorable ruling on the declaratory judgment action, the plaintiff was a successful claimant and was therefore entitled to counsel fees.

Municipal Court (civil reservation).  Maida v. Kuskin, 2015 N.J. LEXIS 278, (March 19, 2015). The New Jersey Supreme Court addressed the civil reservation municipal court practice in the context of a defendant who did not request the civil reservation until later in the day, after his guilty plea had been accepted.  The Supreme Court reviewed the whole process and found that a request for a civil reservation must be made in open court and contemporaneously with the court’s acceptance of defendant’s guilty plea.

Negligence (duty).  Peguero v. Tau Kappa Epsilon, 439 N.J. Super. 77 (App. Div. 2015). The question of the legal duty owed is not always clear under New Jersey law, particularly, if the claimed injury does not fall within the analysis of traditional premises liability law. The plaintiff was shot by another guest while attending a party at a fraternity. The Appellate Division had to decide whether a fraternity owed a party attendee a legal duty to prevent him from harm. The court held that there was no such duty owed by the fraternity to the plaintiff.

PIP (duty to arbitrate).  State Farm Indemnity v. National Liability & Fire Ins. Co., 2015 N.J. Super. LEXIS 33 (App. Div. March 4, 2015). The insurance companies had a dispute over contribution for PIP under N.J.S.A. 39:6A-11. An issue existed as to whether the accident victim was a resident relative of the National insured. National contended that this residency issue must be decided by the court to determine if coverage existed as a prerequisite to the obligation to arbitrate.  The Appellate Division held that this issue is not too complex for the arbitrator and the entire dispute should be submitted to arbitration.

Remittitur.  Mickens v. Misdom, 438 N.J. Super. 531 (App. Div. 2015). In a damages only trial, the jury found a permanent injury under N.J.S.A. 59:9-2(d) and awarded $2,400,000 for a low impact herniated disc injury incurred in an auto accident. The defendant moved for a new trial or remittitur, which the trial court denied. The trial judge denied the motion based upon his assessment of the evidence and feel of the case. The Appellate Division affirmed, finding it was not shocking to the judicial conscience.

Statute of Limitations (incapacity).  Giannakopoulos v. Mid State Mall, 438 N.J. Super. 595 (App. Div. 2014). Plaintiff suffered severe injuries due to an auto accident in Mid State’s Mall. His complaint was dismissed due to his failure to properly serve it upon Mid State and amend as to Maser within the statute of limitations. Due to issues as to the plaintiff’s incapacity caused by the accident and the lack of prejudice to the defendants, the Appellate Division ruled that the trial court erred in dismissing the complaint. The trial court should have held a hearing as to the plaintiff’s incapacity to determine if it tolled the statute of limitations.

Tort Claims Act (immunity for failure to provide adequate medical exam).  Parsons v. Mullica Twp. Board of Education, 2015 N.J. Super. LEXIS 47 (App. Div. March 30, 2015). The minor plaintiff failed her eye screening test conducted by the nurse at the Mullica Township Elementary School. However, the school failed to notify her parents and the delay in notification resulted in a 2 year delay in the diagnosis and treatment of her right eye amblyopia and proximately caused the loss of sight in her right eye. The defendant was found immune under N.J.S.A. 59:6-4 for failure to provide an adequate physical or mental examination.

Tort Claims Act (permanency threshold).  Jung v. Village of Ridgewood, 2015 N.J. Super. Unpub. LEXIS 53 (App. Div. Jan. 8, 2015). While the Title 59 permanency threshold, N.J.S.A. 59:9-2, is a well-known defense against bodily injury claims asserted against public entities, less publicized is the monetary threshold in that statutory section. No pain and suffering award can be asserted against a public entity unless the medical expenses incurred are in excess of $3,600. This requirement resulted in a dismissal of the parents’ emotional distress claim filed due to the death of their son.

Tort Claims Act (late notice of claim). Beyer v. Sea Bright, 2015 N.J. Super. LEXIS 84 (App. Div. May 19, 2015). The plaintiff had 90 days from the accrual of his claim for assault against the Sea Bright Police in early August, 2013 to file a tort claims notice with Sea Bright. Though he retained an attorney to pursue his claim against Sea Bright in September, the attorney became very ill, was hospitalized and in December, after the 90 days had expired, he advised the plaintiff he could no longer handle his case. The trial court found the plaintiff did not meet the Tort Claims Act’s requirement for extraordinary circumstances for failure to file a time claim in both his motion to file a late tort claim notice and his motion for reconsideration. The Appellate Division disagreed and found the plaintiff showed extraordinary circumstances because the attorney’s illness and subsequent incapacity was not the same as inadvertence, negligence, inattentiveness or ignorance in pursuing a claim.

UM (bad faith).  Badiali v. NJM, 220 N.J. 544 (2015).  UM carrier’s decision to reject an arbitration award in an uninsured motorist claim was found to be “fairly debatable,” which barred the insured from recovering counsel fees and other consequential damages under a theory of bad faith. Prospectively, the New Jersey Supreme Court held that any reference in a policy of insurance to the statutory $15,000 policy limit as the basis for rejecting an arbitration award applies only to the amount that the insurance company is require to pay, not to the total amount of the award.

UM (bad faith).  Wadeer v. NJM, 2015 N.J. LEXIS (Feb. 18, 2015). Plaintiff’s claim that his insurer acted in bad faith by failing to settle his UM claim was found barred when filed in a subsequent suit by the New Jersey Supreme Court based upon res judicata because the claim was raised in the first suit. However, it was not barred by the entire controversy doctrine. The plaintiff was not entitled to attorneys’ fees under R. 4:42-9, nor under offer of judgment rule.