Notice of Incident Does Not Satisfy Tort Claims Act Notice of Claim Requirement

By Betsy G. Ramos, Esq.

Under N.J.S.A. 59:8-8, a claimant intending to sue a public entity must give notice of that claim to such entity within 90 days of the occurrence of the incident or be barred from filing suit. In Friedler v. NJ Transit, 2015 N.J. Super. Unpub LEXIS 259 (App. Div. Feb. 12, 2015), the plaintiff claimed that her report to a NJ Transit employee of her fall on defective stair at a train station operated by NJ Transit (“NJT”) complied with this requirement.

Her attorney filed a notice of tort claim, just 3 days past the 90 day deadline. He could have filed a motion with the court seeking leave to file a late claim notice for up to 1 year after the accident. However, he did not file this motion and simply filed suit against NJT. NJT filed a motion to dismiss the complaint based upon the plaintiff’s failure to comply with the notice provision of the TCA. This motion was ultimately granted by the trial court.

The plaintiff appealed, contending that immediately after she fell, a NJT representative asked her for information about the accident. According to the plaintiff, he told her that he needed the information about her accident and her injuries to file the information with NJT. Thus, she argued that this notice constituted substantial compliance with the TCA and that she detrimentally relied on the representations of the NJT employee.

The Appellate Division rejected her argument. The court pointed out that “[n]otably missing is any notice to NJT that plaintiff was asserting a tort claim against the agency or any estimate of her claimed damages.” Providing that information to the public entity is one of the important purposes of the tort claims notice so the entity can have the notice it needs to investigate the incident, attempt to resolve the claim, and can prepare a defense.

And, although she claims that she thought giving the information to the NJT representative was sufficient, no NJT employee told her she did not need to file a notice of tort claim.

Regardless, even assuming this information was sufficient to excuse her from filing a claim notice within 90 days, plaintiff still needed to file a motion seeking leave to file a claim notice out of time, within 1 year of the accident. The Appellate Division stated that her failure to do so was fatal to her claim.

This case points out that mere notice that an accident occurred does not comply with a claimant’s responsibility to provide notice that a claim for damages is being made. As the court points out in Friedler, this essential requirement as to notice of a claim is one of the important parts of the notice requirement. Without such notice, there is no trigger for the public entity to investigate the claim and potentially try to resolve it.

Wrongful Discharge Public Policy Claim Does Not Extend to Discharge Due to Close Association with a Convicted Co-Worker

By Ralph R. Smith, 3rd, Esq.

In a recent decision, the New Jersey Appellate Division was asked to decide whether a wrongful discharge public policy claim could be brought against a public entity employer who discharged an employee as part of a layoff and the employee claimed that the discharge occurred because of his close association with a co-worker who had been convicted of committing a crime.  The employee plaintiff in Kozak v. Township of Cherry Hill, Docket No. A-2454-13T2 (App. Div. 2015), was formerly employed as the Cherry Hill Township building inspector.  His direct supervisor in that position was the Township’s construction official.  After the construction official announced his retirement plans in 2008, the plaintiff claimed that both the Township’s mayor and business administrator told him in early 2009 that he was going to become the next construction official.

In March 2009, the construction official was charged with accepting bribes from a third party construction inspection service used by the township.  Due to that on-going criminal investigation, the plaintiff was advised by the mayor that he was being suspended with pay, and that his employment as building inspector would be re-evaluated during the pendency of the criminal investigation being conducted by the United States Attorney’s Office.  The Mayor testified in the case that the plaintiff’s suspension happened because the Township did not know how far the criminal investigation would go in plaintiff’s department. While plaintiff met with various investigators over the course of the investigation, he was advised that he was not “a target” and ultimately was not charged with any criminal wrongdoing.

In June 2009, plaintiff’s attorney sought his reinstatement in light of the negative outcome of the criminal investigation.  Rather than being reinstated, plaintiff was terminated as part of a township wide reduction in force due to economic issues facing the Township. The Township asserted that plaintiff was chosen for selection because other persons had more licenses in the construction department than plaintiff and thus could absorb some of the extra work arising from the lack of the laid off workforce.  Plaintiff was ultimately one of thirteen other township employees who lost their job as a result of the layoff.

In challenging his layoff, plaintiff claimed that, amongst other things, the layoff violated a clear mandate of public policy under the case of Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980), because he was laid off due to an erroneous belief that he had committed an offense since he worked with a co-worker who committed a crime.  The Appellate Division, like the Trial Court did earlier, rejected this claim as being grounds for asserting a wrongful discharge public policy claim.  In dismissing this claim, the Appellate Division noted that plaintiff could not identify any clearly defined mandate of public policy that prohibited an employer from discharging an employee based upon a perception that the employee’s trustworthiness was compromised due to an association with a former supervisor convicted of accepting wrongful bribes. In addition, the court found that the undisputed evidentiary record presented by the Township to the Trial Court indisputably established that the asserted reason for plaintiff’s selection was not a pretext for wrongful action because the layoff decision was supported by overwhelming proof that economic issues existed at the Township, and that plaintiff, along with a second laid off department employee had the least number of licenses in that group.  As a result, the appeals court concluded that the wrongful discharge claim premised upon a violation of public policy was rightly dismissed by the Trial Court.

This is a positive decision for employers, due to how the appellate court adopted a restrictive view of the kinds of public policy matters that could support a Pierce wrongful discharge claim. The case also illustrates the importance of being able to articulate the reason (s) for a reduction in force and why certain employees are chosen for selection in that reduction in force.  Any time layoffs are being contemplated, employers should devise at the outset an appropriate plan for implementation that is free of illegal considerations and one grounded in a rationale selection process for choosing the employees to be affected by the layoff.  In this case, the employer decided that, in plaintiff’s department, those employees who had the least licenses would be selected for reduction because of the anticipated increased need for certain skill sets after certain job positions were to be eliminated.  Such objective standards are always the most preferred in constructing a selection process for expected layoffs.  Equally important is that the employer do exactly what the Township did here in following that criteria and documenting how that selection criteria was applied to the plaintiff in this case.

Layoffs can often be the cause for costly litigation, so employers are wise to seek advice during the pre-layoff process, especially when a layoff includes a large segment of the employer’s workforce. Effective selection practices and guidance in implementing such practices goes a long way towards eliminating such possible legal action.

Capehart Scatchard Attorneys Recognized as “Super Lawyers”

Mt. Laurel, NJ – – Capehart Scatchard is pleased to announce that the following shareholders have recently been named “Super Lawyers” as voted by their peers and facilitated by Law & Politics and New Jersey Monthly:  John Geaney (Workers’ Compensation), Amy  Goldstein (Family Law), Lora Northen (Workers’ Compensation), and Betsy Ramos (Business Litigation).  Fewer than 5% of lawyers are named as Super Lawyers.

Additionally, Michael Bileci (Workers’ Compensation), Anne Hammill-Pasqua (Workers’ Compensation), Melissa Mignogna (Family Law), Laurel Peltzman (Employment Litigation: Defense),  Daniel Robinson (Workers’ Compensation), and Ian Zolty (Workers’ Compensation) were selected as “New Jersey Rising Stars” for 2015.

Yasmeen Khaleel Named a “Woman to Watch” in 2015 by South Jersey Biz Magazine

yasmeen-khaleelMt. Laurel, NJ – – Capehart Scatchard Shareholder, Yasmeen S. Khaleel, was recently named by South Jersey Biz magazine as a “Woman to Watch” in 2015.  Ms. Khaleel is one of 25 women selected to the list, which identifies female leaders in philanthropy, finance, marketing, health care and beyond who are making their mark in their respective fields.

Ms. Khaleel is the co-chair of the firm’s Health Care and Dental Practice, as well as the Business and Tax Department. Khaleel focuses her practice on representing individuals, business owners, medical, dental and other professionals in estate planning, estate and trust administration, business succession planning and transactional and tax planning.  Ms. Khaleel is the president of the Estate and Financial Planning Council of Southern New Jersey, is on the board of directors for the Animal Welfare Association, is a committee member of the Samaritan Hospice and Health Care Planned Giving Committee and sits on the board of directors for Asian Indian Professionals, Inc.

Capehart Scatchard Bowls for the Kids

Mt. Laurel, NJ – –  Employees of Capehart Scatchard recently participated in the Second Annual Kids’ Chance of New Jersey Bowling Event.  The event was held to raise money for Kids’ Chance, a non-profit organization, created to provide educational opportunities and scholarships for the children of workers who were fatally or catastrophically injured on the job.  The event was held at Colonial Bowling on March 12, 2015 in Lawrenceville, New Jersey.

New Jersey’s “Fairly Debatable” Standard in Bad Faith Insurance Claims Is Alive and Well

By Gina M. Zippilli, Esq.

The “fairly debatable” standard protects insurers from claims of bad faith if decisions to disclaim coverage are “fairly debatable.”  This long-standing shield to insurers recently came under attack in Badiali v. New Jersey Manufacturers Ins. Group, but was ultimately reaffirmed by the New Jersey Supreme Court.

The facts in Badiali were simple.  Augustine Badiali was hit by an uninsured motorist.  He had UM policies with two insurance companies; New Jersey Manufacturers (“NJM”) and Harleysville Insurance Co. (“Harleysville”).  In 2009, Badiali obtained an arbitration award of $29,148.62, which was to be split equally between NJM and Harleysville.  NJM refused to pay its share of the award ($14,754) on grounds that its policy contained a clause prohibiting payouts on awards in excess of $15,000.  The trial court and the Appellate Division disagreed, upheld the award, and reasoned that the $15,000 threshold applied to NJM’s liability.

Badiali subsequently filed a bad faith action against NJM as a result of its failure to timely pay its share of the award  The issue was whether NJM’s rejection of the arbitration award in an uninsured motorist claim was “fairly debatable.” NJM argued that its interpretation of the arbitration clause, and thus its basis for not initially paying its share, was “fairly debatable.”  In support of this argument, NJM pointed to a prior unpublished decision to which it was a party, which dealt with facts similar to those presented by Badiali and in which the court held that NJM’s interpretation was “fairly debatable.”  Although unpublished decisions carry no precedential value in New Jersey, the State Supreme Court agreed with NJM and held that NJM had adequate reason to believe that its conduct was judicially accepted practice and consequently, “fairly debatable.”

Vincent Cieslik Named Chair of the Gloucester March of Dimes March for Babies

vincent-cieslikMt. Laurel, NJ – – Capehart Scatchard is pleased to announce that Vincent T. Cieslik, Esq. has been named Chair of the 2015 Gloucester County March of Dimes March for Babies being held on April 26, 2015 at Rowan University.  Mr. Cieslik has taken on the role to raise awareness and important funding to help babies born prematurely or with birth defects.

“We’re so excited to have Vince Cieslik on board to help us at a local level,” said James Young, State Director for the New Jersey March of Dimes Chapter. “His passion for the cause and commitment to helping our babies will be a huge driving factor in the success of our event. We are grateful for his commitment.”

“Premature birth is the leading cause of newborn death in this country. As a community, that is simply unacceptable and it needs to change, and change needs to start now with our actions and our efforts,” said Cieslik.

Kurt Kramer Addresses Security Industry Professionals

Mt. Laurel, NJ – – Capehart Scatchard shareholder, Kurt Kramer, recently spoke at an ASIS International, South Jersey Chapter 170 event.  The meeting was held at the Valleybrook Country Club in Blackwood, New Jersey on February 19, 2015.  Mr. Kramer’s presentation, entitled “Litigation in the Security Industry,” featured a discussion on important cases and statutes of interest to security professionals.

Mr. Kramer, a Cherry Hill resident and member of the firm’s Litigation Department, has been a member of the Greater Philadelphia and South Jersey Chapters of ASIS for over 20 years and has been representing companies in the security industry for more than 25 years.

ASIS International is the leading organization for security professionals, with more than 38,000 members worldwide. Founded in 1955, ASIS is dedicated to increasing the effectiveness and productivity of security professionals by developing educational programs and materials that address broad security interests, such as the ASIS Annual Seminar and Exhibits, as well as specific security topics. ASIS also advocates the role and value of the security management profession to business, the media, government entities, and the public.

Matthew R. Litt Presents on Legal Writing

Matthew R. LittMt. Laurel, NJ – – Capehart Scatchard attorney, Matthew R. Litt, recently spoke at a legal writing seminar.  The seminar, sponsored by the Camden County Bar Association, was held at Tavistock County Club on February 24, 2015.

Mr. Litt’s presentation, entitled “Definitive Legal Writing,” covered the critical principles of strong and persuasive legal writing.   Program topics included the history and importance of skillful legal writing as well as professionalism and best practices in brief writing and oral argument.

Chair of the Appellate Practice Group, Mr. Litt, a resident of Chesterfield, focuses his practice in general litigation throughout the federal and state courts of New Jersey and New York.   He is an Adjunct Legal Research and Writing Professor at Seton Hall University School of Law.