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Appellate Division Rules That Police Officer in Extra Duty Job Was Not a Special Employee

Some cases have more twists and turns than a roller coaster.  The case of Dutcher v. Stathis & Leonardis, LLC, No. A-3135-23 (App. Div. October 23, 2025) is one such case, dating back to an injury on November 3, 2014 and including two Appellate Division decisions eight years apart centered on whether there was special or dual employment.

The plaintiff, John Dutcher, was a full-time police officer for the Woodbridge Police Department in 2014.  Black Rock Enterprises had a contract with Middlesex County for milling services on county roads, including certain roads in Woodbridge Township.  Black Rock contacted the Township of Woodbridge Police Department for permission to hire police officers for traffic control while its workers performed a road milling project in town.   The Township assigned two police officers to this extra duty job on November 3, 2014.   The Township got paid by Black Rock for the work done by the extra-duty police officers, including Officer Dutcher. The officers got paid by the Township.

On the date of the accident, Officer Dutcher and a colleague were directing traffic at a specific intersection of Woodbridge Center Drive and Plaza Drive.  Dutcher was working traffic duty when a Black Rock employee operating a construction vehicle struck him from behind, causing serious injuries that eventually led Officer Dutcher to retire from employment.  Dutcher received workers’ compensation benefits.  Officer Dutcher also attempted to sue Black Rock for negligence.   

Black Rock filed a motion for summary judgment to dismiss the officer’s civil lawsuit.  Black Rock argued that Dutcher was a special employee of the company and therefore could not sue.  The trial judge ruled on the motion for summary judgement in favor of Black Rock and barred the civil lawsuit. Dutcher appealed.  The Appellate Division affirmed the decision of the trial judge in Dutcher v. Pedro Pedeiro and Black Rock Enterprises, LLC, No. A-1088-16T3 (App. Div. Nov. 22, 2017).

The next twist in the case occurred in 2020 when Officer Dutcher sued the law firm that represented him in the civil action.  He argued that the law firm was negligent in representing him by failing to oppose Black Rock’s summary judgment motion.  He further argued that he was not a special employee of Black Rock and that the motion to dismiss should have been vigorously opposed.

Testimony of various witnesses occurred in the legal malpractice action against the law firm.  There was testimony from Officer Dutcher and another colleague that the officers directed all the traffic at the scene of the injury independent of Black Rock.  They testified that Black Rock had nothing to do with the traffic control and their job on the scene.  The defendant law firm filed a motion for summary judgment, and the trial judge ruled in favor of the law firm.  The judge held that Dutcher was a “dual employee” of Black Rock and the Township.  Therefore, there was no legal malpractice committed by his law firm.  The trial judge referenced a similar extra duty case in Domanoski v. Borough of Fanwood, 237 N.J. Super. 452, 456 (App. Div. 1989) where dual employment had been found.

Dutcher again appealed to the Appellate Division.  An initial argument on appeal was whether the Appellate Division was bound by the decision of the prior Appellate Division decision in 2017. The Court said that it was not bound because there was substantial testimony of witnesses in the legal malpractice case after the 2017 decision which had not been available at the time of the 2017 decision on Black Rock’s motion for summary judgment.  The Court stated that the prior Appellate panel’s decision in 2017 had been limited to “the undisputed facts on the motion record, deemed admitted by virtue of [the party’s] non-response.”  The Appellate Division in the October 23, 2025 decision focused more heavily on the clear separation of duties between Officer Dutcher and his fellow officer and the work duties of the Black Rock employees.  The Court said that Officer Dutcher’s duties at Black Rock on the day of the assignment were traffic control.  Black Rock’s duties were limited to milling the roadway.  “The nature of Black Rock’s work is heavy highway road construction – not police functions.” 

The Court added that Black Rock did not control the work plaintiff was doing at the time of his injury. “Plaintiff was trained in traffic control and direction and was utilizing his training to control traffic for the public’s safety while Black Rock did its work. Black Rock could not hire or fire plaintiff directly. Black Rock paid the Township, not plaintiff, and Woodbridge Police Department paid the extra duty officers even if Black Rock failed to pay its invoice.  Thus, under the totality of the circumstances presented here, plaintiff was not a special employee of Black Rock.”  The result of this decision was to reinstate plaintiff’s legal malpractice case, meaning Officer Dutcher is not barred from suing the law firm that represented him.

Can one reconcile the analysis of employment in the 2017 decision with the analysis of employment in the 2025 decision?  To some degree, yes.  As noted above, the October 23, 2025 appellate decision referenced a great deal of testimony that was not available to the appellate panel in 2017.  But if one looks carefully at the two Appellate Division decisions in this case, separated by eight years, there is a notable difference.  Each panel focused on a different legal test. The 2017 appellate panel focused more on the “whose interests are served” test.  That test considers which entity or entities benefit from the work being done.  Did both Black Rock employees and the public benefit from the work Officer Dutcher and his colleague performed?  The 2017 panel said yes, while the 2025 appellate panel did not address that test at all. It focused more on the complete separation of control and duties.  Officer Dutcher and his colleague operated independently with respect to traffic safety, and Black Rock employees operated independently with respect to road work. The two panels came at the legal problem from a different angle.

The Domanoski case cited above focused mostly on the “whose interests are served” test in finding dual employment.  The officer in that case was injured performing security work in a supermarket on extra duty approved by the Borough.  The court ruled that the officer was a dual employee of the supermarket and the township when he was injured because the injured worker was furthering the interests of both the public generally and the store itself. The trial judge in the legal malpractice case in Dutcher also referenced the “whose interests are served” test in granting summary judgment to the law firm. 

On appeal, the 2025 appellate panel in Dutcher did not mention the “whose interests are served” test outlined in Domanoski. It addressed the legal test outlined in an older case,  Blessing v. T. Shriver & Co., 94 N.J. Super. 426 (App. Div. 1967), which employed a five factor special employee matrix:

  1. The employee has made a contract of hire, express or implied, with the special employer;
  2. The work being done by the employee is essentially that of the special employer;
  3. The special employer has the right to control the details of the work;
  4. The special employer pays the employee’s wages; and
  5. The special employer has the power to hire, discharge or recall the employee.

Sometimes a court can use both of these tests and arrive at the same result.  Consider the unreported Appellate Division case of Peterson v. Borough of Alpine and Bell Atlantic, No. A-5205-99T1, (App. Div. June 20, 2001). In that case the petitioner, a police officer, was injured directing traffic at the request of Bell Atlantic.  The Bell Atlantic linemen were stringing lines along a sinuous Bergen County road.  A witness for Bell Atlantic admitted that the company had the option of using a flagman for the job, but he stated that a flagman would not command as much respect as a uniformed police officer in directing traffic safely.  So, Bell Atlantic requested that the township provide a police officer, who was struck by a vehicle while directing traffic.  The Court found in favor of dual employment, holding that the seriously injured police officer was both an employee of the Borough and Bell Atlantic.  The Appellate Division in Peterson referred to both legal tests in Blessing and Domanoski in finding dual employment and assessed the workers’ compensation costs equally on Bell Atlantic and the Borough.

In this practitioner’s opinion, using the “whose interests are being served” test will likely lead to more joint employment findings than the older, five-part special employment test set forth in Blessing. Each of these two legal tests has its own proponents and critics. In venturing into the legal quagmire of special, dual and joint employment, practitioners and employers must understand that New Jersey courts are currently using different legal analyses to resolve employment issues. One is an older, more traditional approach, seen more in civil actions (Blessing), and the other is a more modern, pragmatic test seen more in workers’ compensation cases (whose interests are being served).  The Supreme Court will eventually provide much needed guidance.  

Appellate Division Reverses Trial Court Decision Denying Motion to Reinstate Complaint Dismissed Due to Lack of Prosecution

The decision of Dae Sun Yoon v. Fletcher & West Associates, LLC., 2025 N.J. Super. Unpub. LEXIS 200 (App. Div. Feb. 7, 2025) exemplifies the difficulty in obtaining a dismissal with prejudice due to a plaintiff’s lack of prosecution of a lawsuit.  In the Yoon case, plaintiff filed a personal injury lawsuit against defendants, Fletcher & West Associates, LLC. (“Fletcher”) and KFC USA, Inc., (“KFC”), back in December 2019 for a fall on defendant’s premises in October 2018.  Due to various procedural deficiencies, the lawsuit was dismissed with prejudice on October 24, 2023, based upon the plaintiff’s failure to prosecute the matter.  The issue in the Yoon case was whether the trial court applied the appropriate standard in reviewing the motion to reinstate the complaint, as well as whether the defendants were prejudiced by the plaintiff’s delay in prosecuting the matter.

It is clear from the procedural history, which I will not recite here in detail, that there were deficiencies on both sides. The lawyers in the plaintiff’s law firm failed to properly attend to the prosecution of this civil complaint, the lawyers for the defendants failed to timely file an answer, and there was the lack of any real prejudice to the defendants due to the plaintiff’s failure to timely move to reinstate the complaint after it had been dismissed without prejudice.

Under the civil court Rule 1:13-7(a), a plaintiff has four months after the filing of the complaint to ensure that a defendant is served and an answer is filed or the court will send a notice that the matter will be dismissed for lack of prosecution in sixty days unless action is taken such as filing a proof of service, the filing of an answer, or the entry of default.  Once a defendant is dismissed for lack of prosecution, the lawsuit can be reinstated as to that defendant upon the submission of a consent order vacating the dismissal and allowing the defendant to file an answer or, in the alternative, the plaintiff can file a motion for a vacation of the dismissal.  If a consent order vacating the dismissal is not submitted within sixty days of the order of dismissal, then a motion for reinstatement is required. 

In the Yoon case, the defendants were served but failed to file an answer within time.  Therefore, the court issued a lack of prosecution dismissal notice.  The plaintiff did request a default against defendant Fletcher and a default was entered.  The complaint, however, was dismissed as to KFC for lack of prosecution.

Thereafter, both defendants attempted to file an answer, which was rejected, because Fletcher was in default and KFC was dismissed.  While a consent order was entered to allow Fletcher to vacate the default and file an answer, the defendant still failed to file an answer.  Thus, the court issued an order also dismissing Fletcher for lack of prosecution and the order stated that a formal notice of motion was now required to restore the case to the active trial list.

However, defendants still attempted to defend this matter by filing another consent order vacating the default and attempted to file an answer.  But, the court issued a notice, advising the parties that the complaint had been dismissed for lack of prosecution as to both parties and if the plaintiff wished to proceed with the matter, a motion had to be filed with the court to vacate the dismissal.

It was not until a year and a half later, however, that plaintiff’s law firm did move to reinstate.  Defendants cross-moved to dismiss with prejudice, opposing the motion to reinstate based upon the “abandonment” of the matter and the failure to demonstrate exceptional circumstances to reinstate the action.  The trial court found that the exceptional circumstances standard applied and, that due to the passage of time and the lack of discovery, there was substantial prejudice to the defendants to now try to defend a case which had been dismissed three years previously.  This order was appealed to the Appellate Division, which did reverse the trial court decision.

First, the Appellate Division found that the trial court applied the wrong standard.  The Court found that the good cause standard should have been applied, as opposed to the exceptional circumstances standard.

The “good cause standard” is a lower threshold to meet based upon the case law. Applying this standard, if the plaintiff (not the plaintiff’s lawyers) is not to blame, and there is a lack of prejudice to the defendant, the matter should be reinstated.  The Appellate Division pointed out that the mere passage of time is an insufficient basis to show prejudice.  It also pointed out that here, the defendants were aware of the lawsuit and had been trying to obtain a reinstatement of the lawsuit so that it could be defended. 

The Appellate Division noted that both parties were at fault in causing a delay to proceed with this lawsuit.  Significantly, the Court found that “[t]he delays in this matter were in no way attributable to plaintiff, who was blameless.”

The Appellate Division found that there was insufficient evidence of actual prejudice to the defendants and that the passage of time alone could not support the Court’s finding in refusing to reinstate the complaint. It found that the defense counsel was engaged and was prepared to defend the case from the outset, but because of procedural “missteps” by both parties, an answer was not filed and no discovery occurred.  The defendants were not surprised or prejudiced by being brought into a case at a late juncture.  Therefore, the Appellate Division determined that defendants had not demonstrated prejudice.

While the Court noted that there was a desirability for the prompt disposal of cases, it also stated that “eagerness to move cases must defer to our paramount duty to administer justice in the individual case.”  Therefore, it found that plaintiff’s law firm’s inattention to the file should not be attributed to the plaintiff given the lack of prejudice to the defendants.  Therefore, it reversed the trial court’s decision and found that reinstatement was warranted.  It remanded the matter back to the trial court to set a reasonable discovery schedule so that the matter could proceed without any further unnecessary delay.

Plaintiff Barred From Pursuing Appeal After Executing Warrant to Satisfy Judgment

Plaintiff Linda Brehme filed a lawsuit against defendant Thomas Irwin for a rear end accident in which she claimed to have suffered bodily injuries.  At trial, plaintiff filed a motion to admit into evidence her projected future medical expenses.  This motion was denied by the trial court judge because she had not exhausted her personal injury protection (PIP) limits.  The issue before the New Jersey Supreme Court in Brehme v. Irwin, 2025 N.J. Lexis 11 (2025), was whether plaintiff had waived her right to appeal this ruling by accepting payment for the final judgment and executing a warrant to satisfy judgment.

The trial was a damages only trial because Irwin had admitted he was at fault.  Plaintiff had a $250,000 PIP policy with his insurance carrier, New Jersey Manufacturers Insurance Company (NJM).  NJM paid approximately $142,900 in benefits.  Brehme never exhausted her remaining PIP benefits but claims that NJM cut her off, although it is unclear exactly when that occurred or on what basis.

Almost two years after the accident, Brehme filed her personal injury complaint against Irwin.  The trial took place three years and eight months later, which was a damages only trial because Irwin admitted liability.  Although she received no medical treatment for the three years prior to the trial, in June 2022, Brehme relied on the amended collateral source rule, N.J.S.A. 39:6A-12, and asked the trial court judge to admit into evidence her projected future medical expenses. 

The trial court judge denied this motion because Brehme had not exhausted her PIP benefits.  During trial, the judge also denied her motion for reconsideration on this issue.  Prior to appealing from the final judgment, plaintiff did not seek leave to appeal this interlocutory evidentiary ruling barring her claim for future medical expenses.

Ultimately, the jury awarded Brehme $225,000 for pain, suffering, disability, impairment and loss of enjoyment of life.  It also awarded $50,000 for past lost wages and $0 for future lost earnings.  The total verdict was $275,000.  On July 7, 2022, the trial court judge entered the final judgment, which also included pre and post judgment interest.

Irwin’s insurance company paid the final judgment, which Brehme’s counsel deposited into his trust account.  On July 18, 2022, Brehme’s counsel also signed a warrant to satisfy judgment.  Thereafter, on July 29, 2022, after Brehme accepted payment of the final judgment and the warrant had been executed, Brehme’s counsel wrote to the trial court judge stating that he was trying to file an appeal regarding the barring of Brehme’s claim for future medical expenses.  He submitted a proposed order under the five-day rule, which purportedly memorialized the ruling barring evidence of future medical expenses.  

Irwin filed the warrant to satisfy judgment on August 8, 2022.  On that same day, Brehme filed her Notice of Appeal (to the Appellate Division) from the final judgment.  The Notice of Appeal was filed three weeks after plaintiff had accepted payment of the final judgment and three weeks after her counsel executed the warrant to satisfy judgment.   

The Appellate Division denied the appeal as moot.  It noted that Brehme never advanced, either on the record or in writing, that she intended to pursue her claim for future medical expenses.  Rather, she accepted and received the full final judgment amount and later signed a warrant to satisfy judgment before indicating her desire to appeal.  Thus, the Appellate Division concluded that the final judgment precluded her appeal challenging the trial judge’s denial of future medical expenses. 

Brehme filed a petition for certification before the New Jersey Supreme Court, seeking to reverse the Appellate Division decision.  Certification was granted by the Court.

Before the Supreme Court, Brehme argued that she filed her Notice of Appel within the forty-five-day deadline required under Rule 2:4-1 (time to file an appeal), and that the rule did not require a party to announce its decision to appeal before that deadline.  She further argued that, although her attorney executed the warrant to satisfy judgment before writing to the judge to request an order that memorialized his evidentiary ruling, she preserved her right to appeal since she filed the Notice of Appeal on the day that Irwin filed the warrant to satisfy judgment under Rule 4:48 (filing of warrant of satisfaction rule).  Plaintiff argued that she should be permitted to appeal the earlier trial evidentiary ruling, excluding her future medical expenses claim and that the Appellate Division made a mistake by dismissing her appeal as moot.

The defendant, however, argued that Brehme failed to clearly make her intention to appeal known before she accepted the benefits of the final judgment.  Further, he argued that if Brehme prevailed on the merits, by obtaining permission to admit into evidence future medical expenses, even though her PIP limits have not yet been exhausted, the only remedy would be to vacate the final judgment for the damages trial because evidence of pain and suffering and future medical expenses are not separable.  Further, Irwin argued that prevailing on appeal would nullify the final judgment, rather than potentially increase it.

The Supreme Court pointed out that, although Brehme complied with the deadline under Rule 2:4-1, that rule did not address whether a plaintiff can accept final payment of a judgment, execute a warrant to satisfy judgment, and then appeal.  The Court further noted that Rule 4:48-1 (warrant of satisfaction rule) also does not address that issue.  That rule provides that when a party satisfies a final judgment, a warrant must be executed and delivered to the party making satisfaction. 

The Court agreed with Brehme that Rule 4:48-1 does not alter the forty-five-day time period prescribed in Rule 2:4-1, i.e. the time to file a Notice to Appeal.  However, the Court also noted that Rule 4:48-1 “also does not explicitly address the legal effect of accepting a judgment and executing a warrant to satisfy the judgment before filing a Notice of Appeal.” 

However, the Supreme Court noted that New Jersey common law has addressed in other contexts whether a plaintiff can accept payment of a final judgment, execute a warrant to satisfy that judgment, and then appeal.  It noted that the longstanding general rule was “that when a litigant accepts the benefit awarded . . . by a final judgment, that litigant is precluded from afterward challenging the validity of the conditions by an appeal.”  When one party pays a judgment and the other accepts the money and executes a warrant to satisfy judgment, “the legal effect of what transpires is that a contract is entered into between the parties to terminate the litigation.”   

However, in other case law, the Court explained that an appeal could be maintainable if it would serve to increase but not reduce the amount of the judgment.  But, the parties seeking to appeal must make it known prior to accepting final judgment that it intended to appeal an issue which would not impact the final judgment other than to potentially increase it. 

Thus, the Supreme Court’s holding was as follows:

When a plaintiff accepts the final judgment, that party may still appeal if the party can show that (1) it made its intention to appeal known prior to accepting payment of the final judgment and prior to executing a warrant to satisfy that judgment, and also that (2) prevailing on the appellate issue will not in any way impact the final judgment other than to potentially increase it.

In applying these principles to the within case, the Court found that plaintiff did not make her intention to appeal known prior to accepting payment of the final judgment and prior to executing a warrant to satisfy that judgment.  To the contrary, she accepted payment of the final judgment, her counsel deposited the money into his trust account and also signed a warrant to satisfy judgment.  It was not until three weeks later that plaintiff filed her notice of appeal from the final judgment.

As to the second prong of this ruling, the Court found that plaintiff was also unable to show that prevailing on the trial court evidentiary ruling would not impact the final judgment and only potentially increase it.  The Supreme Court pointed out that personal injury awards are generally not divisible.  Evidence of pain and suffering “is inextricably linked to evidence of future medical expenses.”

The Court noted that one jury could not hear evidence relevant to pain and suffering and another jury hear evidence relevant to future medical expenses.  These two claims would need to be considered simultaneously and they are not fairly adjudicated separately.  Because plaintiff did not receive treatment for three years, it is possible that a subsequent jury could consider the evidence differently to find that she is entitled to less damages.  It would not be guaranteed that the issue of future medical expenses would only increase the sum the jury awarded to her.  Because the evidentiary issue on this appeal was not separable from the underlying final judgment, plaintiff could not show that it would only increase the final judgment.

In summary, the Supreme Court found that plaintiff could not show that she expressed her intention to appeal before accepting payment on the final judgment and before her attorney executed the warrant to satisfy the judgment or that the appeal would not impact the final judgment other than to increase it.  Hence, the Supreme Court found that plaintiff’s appeal could not proceed and that the Appellate Division properly dismissed it as moot.  Thus, the Supreme Court affirmed the Appellate Division decision dismissing the appeal. 

False Claims Act – Qui Tam Cases – and How It May Impact Health Care Providers

A recent decision by a Court in Florida is gaining national attention because the Court found for the first time that the federal False Claims Act’s qui tam clause was unconstitutional.  The phrase “qui tam” is Latin, meaning “who as well” and in the 13th Century, it referred to English lawsuits where a person sued on behalf of the King … “as well” as for himself.

By way of background, federal law allows a party who believes they have evidence the United States Government has been defrauded to file suit.  Uniquely, the Plaintiff must present this suit to the Government who assigns the case to a United States Attorney, and potentially fraud specialists in that area of government spending, to evaluate and assess the merits of the case.  Under the law, the United States Government can then “intervene” in the case and proceed with the claims as if they were the Plaintiff, even though the private party has discovered the alleged fraud and damages.  The Government can also elect not to intervene and instead allow the private plaintiff to proceed with the suit, prove the case and recover the damages.  The law provides for the sharing of damages by a successful litigant, who can benefit handsomely from a case where they prove the Government was defrauded and suffered considerable losses.

The federal qui tam law is unique in the sense that the Plaintiff is a private citizen, are called “relators,” and advocate and prosecute the civil suit on behalf of the United States Government seeking to prove and recover damages suffered by the government.  In this recent case, a Florida judge held that the Act, as applied in that case, was unconstitutional.  U.S. District Judge Kathryn Kimball Mizelle dismissed the case, which involved Medicare Advantage fraud, ruling that qui tam relators who file lawsuits under the FCA are essentially acting as “officers of the United States” and thereby violating the U.S. Constitution’s Appointments’ Clause, which requires such officers to be appointed by the president, a court, or the head of a federal department.

Why is this of interest?

The Court’s ruling is of interest nationwide because the rationale for the Court’s decision has implications for current and future cases pending throughout the country.  The Court dismissed the suit on the theory that the False Claims Act is unconstitutional because it allows for the deputization of a layperson, who is then empowered to act as an agent of the government in violation of Article II. The Court reasons that a relator – the plaintiff – is a private party but they are, de facto, an extension or a governmental officer of the United States Government who has not been formally appointed under Article II of the United States Constitution.  Article II provides the means and authority under which officers, the heads of agencies and other governmental officials serving at high levels in government, must be appointed and then approved.

The Constitution requires, as a general and default rule, that “Officers of the United States” must be nominated by the President and confirmed by the Senate.  The Constitution allows only an exception to this rule for cases where the officer is merely an “inferior officer,” in which circumstance, Congress may waive Senate consent.

Recent rulings by our Supreme Court signal that the Court may be willing to consider these arguments and resolve them in favor of the defense.  In other rulings, the Court has weakened the previously wide discretion granted to federal agencies to prosecute, interpret, and enforce regulations.  Other federal courts may reach similar rulings, relying upon this as persuasive authority, and the collective cases could eventually reach SCOTUS.

To be clear, the Florida decision presently applies only to the facts of that case and to the defendants in the Medicare case: United States ex rel. Zafirov v. Florida Medical Associates, LLC.  The decision could have broad implications for other Qui Tam cases which are pending and which may be filed in New Jersey and other jurisdictions.  The decision could empower counsel in other cases to make the same arguments and/or settle claims on more favorable terms.  The prospect of fighting both a private litigant represented by experienced counsel, with the backing of the United States Attorney and its staff, is a daunting task.  Now, defense counsel and health care providers have something to cite in an effort to counterbalance against the considerable leverage the Department of Justice and private counsel have over them in these cases. 

Although the federal court ruling outlines the many pitfalls and potentially unconstitutional aspects of the law, the False Claims Act has several salient benefits.  In some jurisdictions, the federal government does not have a budget, a fraud task force, or staff to handle these types of cases.  Allowing private litigants to prosecute them saves the United States Government time to pursue other cases and the funds to do so.

Consent Order Bars Re-Litigation of Claims

Plaintiffs Scott Diamond and Edward Street Holdings filed a lawsuit in the Law Division against defendant Warren Diamond (“Warren”) for claims that had been the subject of a Chancery Division matter.  In the chancery matter, the plaintiffs had filed a 12-count counterclaim against Warren which included, among other claims, a malicious abuse of process claim, claiming that Warren willfully and maliciously abused the process with the ulterior motive to unlawfully take, by deception, assets belonging to Scott worth $12 to $15 million dollars. The issue in Diamond v. Diamond, 2024 N.J. Super. Unpub. LEXIS 2381 (App. Div. Oct. 10, 2024) was whether the later filed Law Division case was barred by a consent order the parties had entered into in negotiating a settlement, pending the adjudication of an arbitration hearing.

The consent order entered into between the parties specifically permitted either party within 60-days of the final adjudication of the arbitration to refile a separate action in the Union County Chancery Division for any “affirmative claims, counterclaims, and/or third-party claims that were advanced, and not dismissed by any respective party in that action.”  Further, all affirmative defenses would be tolled and suspended until sixty days after the adjudication of this arbitration.

The arbitration was adjudicated on July 15, 2021.  Neither party filed a new action as defined by the consent order within the 60-day period agreed to in the order.  About eighteen months later, plaintiffs filed this complaint against Warren in the Law Division.  The facts of the complaint were substantially the same as those set forth in the plaintiff’s dismissed chancery action counterclaim.

Following service of the complaint, Warren filed a motion to dismiss, arguing that the complaint was subject to dismissal because the consent order barred the refiling of plaintiffs’ claims after the 60-day tolling period.  Further, Warren argued that the consent order required any new action to be filed in the Chancery Division rather than the Law Division.  In addition, Warren made other arguments to support his motion to dismiss.

Plaintiff argued that the consent order from the chancery action only addressed the tolling of the statute of limitations and the order was not a final order since it only dismissed the parties’ claims and defenses without prejudice.  Plaintiff further argued that because its counterclaims in the chancery action were not dismissed with prejudice, their Law Division complaint was not barred by the consent order and should not be dismissed.

The trial court granted defendant Warren’s motion and entered an order dismissing plaintiffs’ complaint with prejudice.  The trial court found that the consent order was an agreement between the parties approved by the court and that it “operates as a contract between the parties” and that courts must “examine the plain language of the order and the parties’ intent, as evidenced by the contract’s purpose and surrounding circumstances.”  The court found that consent order was clear that there was a 60-day deadline that applied to both the tolling of the statute of limitations and an opportunity to refile any of the affirmative claims, counterclaims and/or third-party claims.  Further, the court found that the matter was adjudicated and a final award was entered in the arbitration.  Hence, the trial court found that the consent order barred the refiling of the claims. 

This order was appealed to the Appellate Division, which agreed with the trial court.  The Court noted that consent orders are “essentially unique contracts” and in construing a consent order, a court should use principles of contract interpretation.  In essence, a consent order is an agreement of the parties that has been approved by the court and operates as a contract between the parties.  Under basic contract principles, the Appellate Division noted that if the contract entered into is clear, then it must be enforced as written.

The Appellate Division reviewed the consent order and found that a refiled action would include “any affirmative claims, counterclaims, and/or third-party claims that were advanced, and not dismissed by any respective party in this action.”  It found that the consent order preserved and permitted a party to assert as part of any refiled action, all rights, remedies, defenses, and claims for relief that he, she, or it asserted, or seeking to obtain, or could have obtained in the action for a period of 60-days after the adjudication of the arbitration.

Based upon the Appellate Division’s review of the record, it concluded that plaintiffs’ were “distinctly” aware of the factual basis for their claims against Warren for malicious abuse of process and malicious use of process before the execution and filing of the consent order in the chancery action.  Almost identical claims were made in the plaintiffs’ counterclaim in the chancery action and the plainly disclosed facts forming the basis of the plaintiffs’ “new” claims asserted in the Law Division were known at the time the chancery action concluded. 

The Appellate Division concluded that the clear language in the consent order barred any claims against the other party in any refiled action which could have been obtained in the chancery action unless those claims were filed within the 60-day tolling period.  The Court noted that plaintiffs’ complaint asserted claims that could have brought in the chancery action. 

It found that the parties were bound by their contractual agreement set forth in the consent order, regardless of whether plaintiffs’ newly pled claims would have been filed in a timely manner under the applicable Statute of Limitations.  Hence, the Appellate Division found that the trial court’s dismissal of the complaint was appropriate and upheld the trial court’s dismissal.

NJ Supreme Court Rules that Former Trustee Cannot Recover Attorneys’ Fees and Costs Against Condominium Board Under an Ambiguous By-Law Indemnification Clause

By: Uyen Nguyen, Law Clerk
Edited by: Betsy G. Ramos, Esq.

The plaintiff, Patrick Boyle, a condominium owner and former trustee of the condominium association board, claimed that he was entitled to recover attorneys’ fees and costs against the defendant condominium association, reimbursing him for fees expended to successfully challenge his removal from the board. The issue in Boyle v. Huff, 257 N.J. 468 (2024) was whether an indemnification clause in a condominium association’s bylaws allowed plaintiff to recover attorneys’ fees and costs in his first-party claim against the association.

Plaintiff was the owner of approximately 750 units of the Ocean Club Condominium (OCF Condominium) in Atlantic City. He also served as a trustee of the Ocean Club Condominium Association (Association), a nonprofit organization managed by a Board of Trustees (Board). The Board, consisting of 7 condominium owners, oversees the OCF Condominium affairs and enforces the Association’s bylaws. On August 16, 2020, the Board expelled Boyle as a trustee for alleged acts of misconduct. In response, he filed a complaint and order to show cause against the Board, challenging the removal.

In his original claim, plaintiff sought a declaratory judgment, requesting the trial court to conclude that his removal was improper and reinstate his role as a trustee. The trial court granted the request and Boyle was reinstated as a trustee on December 11, 2020. Further, the trial court held that the Board violated the bylaws and N.J.A.C. 5:26-8.12(a) and (d) for failure to provide Boyle with adequate notice of the scheduled vote. Later, Boyle filed an amended complaint, adding a claim for indemnification for his attorney’s fees incurred in his lawsuit challenging his removal.

In April 2021, plaintiff filed a third amended complaint, bringing a derivative claim on behalf of the Association, alleging that the trustee defendants had breached their fiduciary duty. After being defeated in the Board’s election in August 2021, he moved for summary judgment, requesting injunctive and declaratory relief and partial summary judgment on the indemnification clause, seeking reimbursement of his attorney’s fees and costs.

The trial court held that the plain language of the bylaws entitled plaintiff to recover attorneys’ fees and costs. Consequently, the trial court awarded plaintiff legal fees and costs of $516,811.80 and required defendants to pay plaintiff in thirty days. Plaintiff moved to reconsider the award amount, and defendants moved for a stay of thirty-day payment requirement. Because the trial court did not schedule a hearing for the stay request before the thirty-day deadline, defendant submitted a motion for a stay of the deadline to the Appellate Division.

The Appellate Division granted defendants’ motion for a stay, and simultaneously, the trial court granted plaintiff’s motion for reconsideration. The trial court awarded the plaintiff a final judgment of $563,031.80. Defendants then filed a notice of appeal from the final judgment and summary judgment with the Appellate Division.

In an unpublished decision, the Appellate Division held that the indemnification provision covered the attorney’s fees and costs incurred by plaintiff in his first-party claims against the Association. However, the Appellate Division reversed the trial court’s award, finding that Plaintiff is not entitled to attorneys’ fees and costs incurred in pursuing his derivative action claim.

Defendants further appealed the decision to the NJ Supreme Court. The Court granted defendants’ petition for certification. To determine whether plaintiff could be indemnified for attorney’s fees and costs, the Court employed the canon of contract construction in Kieffer v. Best Buy to interpret the indemnification provision in the Association’s bylaws. In that case, the Supreme Court held that an ambiguous indemnification provision would be “strictly construed against the indemnitee.” Furthermore, because the issues in this case were concerned with attorney’s fees, the Court also relied on the American Rule. Under the American Rule, without statutory or judicial authority or express contractual language, parties are responsible for paying for their own attorney’s fees.

After reading the indemnification provision in the Association’s bylaws in its totality, the Court concluded that the indemnification provision only indemnified trustees for costs incurred when other unit owners initiate an action against them in their capacity as trustees in absence of any willful misconduct or bad faith actions on their parts. The Court held that the indemnification provision was ambiguous and must be construed against plaintiff. The Court referred to the American Rule, stating that absent express contractual language, there must be affirmative indicia of the intent to indemnify parties for their attorneys’ fees. Due to ambiguity in the indemnification clause, the Court refused to adopt the Appellate Division’s presumption that the indemnification clause allowed plaintiff to recover for attorneys’ fees incurred from his first-party party claims against the Association.

Accordingly, the Court held that the indemnification provision did not cover the attorney’s fees and costs incurred by plaintiff in his first-party claims against the Association, reversing the Appellate Division decision.

Federal Court Rejects Intentional Harm Burn Case Filed Against Auto Repair Shop and Holds Only Remedy Lies in Workers’ Compensation Court

Plaintiff Eric Lopez was badly burned working for Corozal Auto Repair Inc.  Lopez filed a civil suit against his employer alleging that the conduct of his employer amounted to intentional harm.  The employer argued that Lopez could not sue and that his only remedy was in the New Jersey Division of Workers’ Compensation.

Plaintiff alleged three specific sets of actions by the Auto Repair Shop and its owner amounted to intentional harm.  First, he noted that the burns he suffered stemmed from the placement of a drip pan under a car.  Gas was dripping from a car that needed repairs, so the shop owner put a drip pan under the car.  The next day, the shop owner asked the plaintiff Lopez to help him push the car into a garage bay.  As they were pushing the car, a spark ignited probably from the jack propping up the car.  That led to a fire, which spread to the plaintiff causing serious burns.  Plaintiff argued that the shop owner’s placement of the drip pan under the car to collect the leaking gas was an intentional wrong.

Next, plaintiff argued that the shop owner’s response to the fire in spraying windshield wiper fluid on plaintiff was an intentional harm.  When the fire broke out, the shop owner panicked, according to the defendant’s version of facts.  He grabbed something liquid, which turned out to be windshield wiper fluid, and poured it on plaintiff.  The windshield wiper fluid accelerated the fire because it was a Category 3 flammable liquid.

Lastly, the plaintiff argued that the owner’s failure to have proper fire suppression equipment violated relevant fire codes.  The New Jersey Fire Code required repair garages to have fire extinguishers at a certain distance, no less than 30-50 feet. There was only one fire extinguisher where there should have been more. This was a likely violation of the New Jersey Fire Code.

The federal district court reviewed the extensive New Jersey case law on intentional harm and noted that plaintiff must meet the “substantial certainty” test.  The court noted that even an injury stemming from gross negligence is insufficient to satisfy the intentional wrong exception.  The court quoted from Richter v. Oakland Bd. of Educ., 246 N.J. 507 (2021) for this proposition:

  1. The employer must know that his actions are substantially certain to result in injury or death to the employee, and 2) the resulting injury and the circumstances of its infliction on the worker must be a) more than a fact of life in industrial employment and b) plainly beyond anything the Legislature intended the Workers’ Compensation Act to immunize.

With respect to the argument concerning the placement of the drip pan to collect leaking gas, the court said that “… knowing that placing a drip pan creates ‘a danger of fire’ is not the same as knowing that placing a drip pan creates a ‘substantial certainty’ of injury or death.”  The court reasoned that not all fires lead to injury or death.  Further, just knowing that there is some danger is not the same as having substantial certainty that the danger will occur.  In this case, the court observed that the shop owner was exposed to the very same risk.  The fire just happened to engulf the plaintiff Lopez but could just as easily have engulfed the shop owner as both men were pushing the car into the bay. It made no sense to the court that the shop owner would have taken this action knowing it was substantially certain to injure himself. 

With respect to the argument about the windshield washer fluid, the court considered the deposition testimony of the shop owner, who said that when he saw his employee covered in flames, he just reached for the first liquid that he could find.  The court found that this effort to provide quick assistance was not in any way consistent with the argument that the shop owner poured the flammable liquid on his employee with substantial certainty that it would injure him.  The court agreed that this was a mistake, and a negligent one, but certainly not undertaken by the owner in a split second with intent to harm.  The court reflected on the landmark case of Millison v. E. I. duPont de Nemours & Co., 101 N.J. 161 (1985), which noted that any level of intent short of “virtual certainty” would not be enough to establish intentional harm.

Concerning the lack of sufficient fire suppression equipment, the court considered that this would amount to a likely violation of the New Jersey Fire Code.  The court said that “… fire code violations are like other safety code violations:  standing alone, in the absence of other relevant factors, fire code violations do not count as intentional wrongs for purposes of the New Jersey Workers’ Compensation Act.”  The court relied on Van Dunk v. Reckson Associates Realty Corp., 210 N.J. 449 (2012) for the proposition that a violation of a safety code is just one factor in proving an intentional harm claim.

The court said, “There is no proffered evidence, for example, of awareness that one fire extinguisher was not enough; of prior fires; of prior safety complaints; of failed inspections; of other safety issues; of deception of safety regulators, or of a generally casual or reckless culture with respect to workplace safety.”

For these reasons, the federal court dismissed the civil lawsuit and found that the only remedy of the plaintiff was to file a claim petition in the Division of Workers’ Compensation.

This case can be found at Lopez v. Corozal Auto Repair Inc., No. 21cv17366, 2024 U.S. Dist. LEXIS 80642 (D.N.J. May 2, 2024)

The post Federal Court Rejects Intentional Harm Burn Case Filed Against Auto Repair Shop and Holds Only Remedy Lies in Workers’ Compensation Court appeared first on NJ Workers' Comp Blog.

Plaintiff’s Civil Suit Was Barred Against Her Co-Employers and Failed to Meet Sufficient Allegations of Intentional Harm

An employee can work for two companies at the same time.  When that occurs, the employee cannot sue either company civilly because N.J.S.A. 34:15-8 provides that workers’ compensation is the exclusive remedy for an injured employee.  The intentional harm exception is narrowly construed in New Jersey. That is the lesson in the case of Donnerstag v. Winchester Garden, No. A-1916-22 (App. Div. May 9, 2024).

The facts were quite simple in this case.  Petitioner worked in 2013 as a live-in caregiver for Brenda White, who was a resident of Winchester Garden.  Petitioner began to experience health issues during her years of employment, and she associated them with mold that she saw on the premises.  She quit her job in 2021 because she was convinced that mold exposure was causing respiratory issues.  She also knew that no remediation had been done on the mold problem.

Donnerstag brought a civil lawsuit against Winchester Garden in July 2020.  In August 2023 she moved to amend the complaint to add Synergy Homecare as a co-defendant.  She claimed that she only learned through discovery years later that Synergy was her actual employer and that Winchester was only the managing company of Synergy.

There were many procedural problems with the case, but the most interesting aspect of the decision was the criticism by the court of the deficiencies in the civil complaint.  “As the judge recognized, Donnerstag’s proposed amended complaint was futile because it alleged negligence claims against Winchester and Synergy – her identified employers.”  The Court pointed out that the complaint was very clear in alleging that Winchester was the managing company for Synergy and Donnerstag was an employee of Synergy.  She alleged that the two companies were vicariously liable for her respiratory injuries but she only pleaded basic negligence in her civil complaint.

The Court pointed out that it is extremely difficult to get past the exclusive remedy provision in New Jersey.  The only exception is an intentional harm case, but the Court emphasized that the New Jersey Supreme Court has interpreted intentional harm to reflect a “substantial certainty standard.”  It cited Laidlow v. Hariton Mach. Co., 170 N.J. 602, 613 (2002) for this proposition:  “. . . [a]n intentional wrong is not limited to actions taken with a subjective desire to harm, but also includes instances where an employer knows that the consequences of those acts are substantially certain to result in such harm.”

The Court viewed the amended complaint liberally but still found that there was insufficient support for a count alleging intentional harm.  The complaint sounded more in negligence than in intentional harm.  The Court therefore affirmed the decision of the trial court to bar the amended complaint and dismiss the suit. 

The post Plaintiff’s Civil Suit Was Barred Against Her Co-Employers and Failed to Meet Sufficient Allegations of Intentional Harm appeared first on NJ Workers' Comp Blog.

New Jersey Supreme Court Restricts Use of Employee Non-Disparagement Agreements

During the midst of the Me-Too Movement, the New Jersey Law Against Discrimination (“NJLAD”) was amended to make it easier for victims of harassment, retaliation, and discrimination to avoid onerous confidentiality restrictions that prevented those employees from discussing such claims after those matters were resolved with their employer. Specifically, that amendment, N.J.S.A. 10:5-12.8(a), provides that “[a] provision in any employment contract or settlement agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment (hereinafter referred to as a non-disclosure provision) shall be deemed against public policy and unenforceable against a current or former employee.” An open issue that was left unaddressed in the law was whether a contractual non-disparagement provision that typically precludes the employee from saying anything derogatory or damaging about an employer was covered by this statutory restriction. On May 7, 2024, the New Jersey Supreme Court finally provided its answer to this important open statutory issue.

In Savage v. Township of Neptune, 257 N.J. 204 (2024), the New Jersey Supreme Court was asked to determine whether a broad contractual non-disparagement clause in a settlement agreement between the Defendant employer and Plaintiff former employee fell within the statutory restrictions of N.J.S.A. 10:5-12.8(a). The Township of Neptune sought to enforce a non-disparagement provision in a settlement agreement between it and the Plaintiff, who during a television news program, discussed her settled case and made unflattering statements about those she believed had harassed her. The trial court granted the Township’s motion to enforce the provision, finding that the NJLAD amendment barred only non-disclosure and confidentiality agreements, and Plaintiff here had instead violated an enforceable non-disparagement provision. This decision was then upheld by the appellate court which similarly determined that a non-disparagement clause was nevertheless enforceable despite N.J.S.A. 10:5-12.8(a).   

Disagreeing with the lower courts that previously considered the issue, the New Jersey Supreme Court ruled that any contractual provision that has the effect of stopping an employee or former employee from being able to discuss or disclose the factual circumstances or details of a harassment, discrimination or retaliation claim violates N.J.S.A. 10:5-12.8(a) and is thus not enforceable as it is contrary to public policy. Applying that standard to the non-disparagement provision before it, the Court ruled that as written it was violative of N.J.S.A. 10:5-12.8(a) and could not be enforced against Plaintiff because its effect was to silence the former employee’s ability to discuss her past harassment and discrimination claims against Defendant.

Significantly for employers, while the Savage case may have ultimately been a win for the Plaintiff, it could have been far worse. Thankfully the Court’s ruling did not go so far as to categorically ban all non-disparagement provisions. Instead, the decision still leaves open the possibility of enforcement of more narrowly tailored non-disparagement provisions that do not impair an employee’s ability to address the details relating to harassment, discrimination, and retaliation claims. Thus, a properly drafted contractual non-disparagement clause can still be enforceable and beneficial for the employer, as the employer may continue to prevent the making of defamatory and disparaging comments regarding other unrelated subjects and topics that do not fall within the express restrictions of N.J.S.A. 10:5-12.8(a).

Accordingly, in light of the Savage decision, employers should immediately commence a review of all their employment contracts and severance agreements and bring any non-disparagement provisions in line with the new limitations on enforceability recently announced by the New Jersey Supreme Court.           

Embryos Destroyed in Alabama Cryogenic Nursery

Liability Concerns for Physicians, Providers, Hospital and Reproductive Clinics following the Alabama Supreme Court Ruling in LePage v. Center for Reproductive Medicine – the “Sanctity of Human Life” Opinion

Much has been written in social media about the recent decision by the Supreme Court of Alabama in LePage v. Center for Reproductive Medicine. While the decision has been viewed as controversial, and surely raises issues of reproductive rights which are contentious in the world today, very little of the discussion focuses on the facts or the actual legal holding of the case. Instead, most social discussion appears to be based upon the perceived impacts of the decision, with little conversation of the analysis or legal issues in the holding. This article does not seek to advance a political, religious, social, or moral persuasion of the validity or viability of the legal issues raised by the decision.  Instead, it illustrates why physicians and medical providers face a new legal landscape in light of the implications of the LePage ruling.

The decision was based upon a unique but potentially repeatable factual scenario.  Plaintiff’s filed suit alleging that the reproductive center, which was located within the same building as a local hospital, allegedly and negligently allowed a hospital patient to wander into the fertility clinic through an unsecured doorway.  The patient entered the cryogenic nursery and removed several embryos.  The subzero temperatures for embryo storage freeze-burned the patient’s hand causing the person to drop the embryos on the floor, killing them. 

Several groups of Plaintiffs brought multiple lawsuits asserting claims under the Wrongful Death of a Minor Act, pleading in the alternative common law claims for negligence, “wantonness” and asserting the entitlement to recover mental anguish and emotional distress.  The trial court granted motions to dismiss by the hospital and the clinic finding that the cryopreserved in vitro embryos do not “fit within the definition of a child” for purposes of permitting Plaintiffs to assert a wrongful-death claim.  The trial court also dismissed the negligence claims based upon Alabama’s prohibition on recovery of “compensation damages for loss of human life.”  This ruling focused on a theory, common under many state laws, that limits recovery for emotional injury only to plaintiffs who were in the zone of danger, sustained a physical injury, or were placed in immediate risk of physical harm.

The Alabama Court noted that the issues in these cases have “raised many difficult questions” including questions about the “ethical status” and legal status of “extrauterine children” under the 14th Amendment to the United States Constitution.  But the Court declined to wade into those thorny issues, and instead presented what it deemed to be a “clear” review of the “relevant statutory text” of the Wrongful Death of a Minor Act (“WDA”) which had been enacted back in 1876.  The Court held that the WDA applies to “all unborn children, without limitation,” and reversed the trial court’s ruling dismissing the Plaintiffs’ complaint. 

The Court opined that the parties disagreed as to the legal implications but did not fundamentally disagree with several basic premises for the Court’s decision: that an unborn child was a “genetically unique human being” whose life begins at fertilization and ends at death; and that an unborn child usually qualifies as a “human being,” a “human life,” or a “person” utilizing words as used in ordinary conversation.  The Court noted that defendants argued that an unborn child ceases to qualify as a child or person if that child is not contained within a biological womb.  The Court also noted that while there had been a longstanding ethical norm against artificially gestating human embryos behind 14 days of development, but that norm was wavering and that research and recent technology had allowed human embryos to develop well past that point, to eventual viability and/or full term.  The ruling did not focus on the advance of technology in reproductive health nor juxtapose the current set of facts against the history of the law passed back in the late 1870’s. 

In reaching its ruling that the WDA applied to human embryos held in frozen storage, the Court advised that it had previously ruled in 2011 that an unborn child qualified as a minor child for purposes of the WDA.  The decision in this matter relies upon that prior precedent and what it describes as how the phrases “unborn children” are “widely recognized” as “living persons with rights and interests.” The Court then advises that its ruling recognizing the rights of frozen embryos as an unborn life which may not be wrongfully killed in violation of the Act as based upon its effort to give words their natural and common understanding and meaning.  The Supreme Court was sure to note that its own Alabama Constitution recognized the public policy of the state to ensure the protection of the rights of “the unborn child in all manners and measures lawful and appropriate,” under the “Sanctity of Unborn Life” section of the Constitution. 

The Court concluded its analysis by noting that it had previously ruled that the WDA allows an action to be brought for the wrongful death of “any” unborn child, and proceeded to address the extensive dissent by Justice Cook and why it felt the Court should not fashion an “exception” to what it viewed as established precedent under the WDA.  It would be inappropriate to avoid mentioning that the decision was not unanimous, numerous justices concurred in the result but not the reasoning of the majority, and Justice Cook wrote a 56-page dissent and rebuke to the majority 25-page opinion.  In any event, in concluding its decision, the majority noted that the Court found it significant that the parents themselves had contracted with the clinic under terms which allowed the destruction of the embryos which the Court found may be litigated on remand, under theories that the Plaintiffs were contractually barred or equitably prohibited from pursuing WDA claims based upon their signed contracts. 

The facts of this case are unique, and yet, this ruling has already had consequences nationwide.  Physicians and providers are concerned for the legal implications and their personal liability under the WDA in light of the ruling and its impact on care. 

Hospitals and hospital systems concerned for their liability, particularly the punitive damages allowed under the WDA, have announced the temporary suspension of their fertility clinic operations.  While the Court did not rule on the impact of patient waiver or consent forms, there could be rippling effects for physicians and medical providers while the Court on remand renders a ruling on those key issues. 

While New Jersey’s Supreme Court has not squarely addressed this issue, its rulings on similar topics may leave physicians, clinics and hospital providers wary.  New Jersey has not allowed parents of stillborn children to sue for wrongful death, however, the Court has allowed personal injury claims for the loss of an unborn child.  State lawmakers in New Jersey, Alabama and throughout the country, as well as federal legislators, may react to this ruling to provide statutory protections and/or amendments to their wrongful death laws.  Physicians, clinic operators and hospital-based clinics, without what they believe to be sufficient contractual or legal protection, could flee the industry, seek stronger contractual protections and waivers from patients, or lobby for legislative immunity from suit.  Given the expansive nature of the reproductive health industry and consumer demand for its providers, the industry may also enhance security surrounding facilities, clinics, and hospital systems to prevent against further outside security breaches giving rise to plaintiff’s wrongful death claims.  Physicians and providers may advocate in their practice, hospital, and medical systems for greater security protocols as a means to protect themselves from future liability.

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