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Plaintiff’s Bodily Injury Claim Dismissed Due to Failure to Show How a Subsequent Accident Aggravated Pre-existing Injuries From Prior Accident

Plaintiff Tony Polite was involved in two automobile accidents within thirty days.  The first accident occurred on May 15, 2019, and the second one occurred on June 16, 2019.  Plaintiff claimed to have injured his neck, back, left shoulder, and right knee in the first accident and alleged that those injuries became significantly worse following his second accident.  The issue in Polite v. Kahn, 2024 N.J. Super. Unpub. LEXIS 1699 (App. Div. July 18, 2024) was whether plaintiff had provided sufficient proofs to show that the second accident aggravated his pre-existing injuries from his first accident.

In plaintiff’s May accident, he was t-boned from the driver’s side, causing his vehicle to hit a telephone pole.  He suffered injuries to his cervical spine, lumbar spine, left shoulder, and right knee.  He filed a lawsuit against the driver Estell Norman.  One month later on June 16, 2019, he was in a second car accident in which he was injured by defendant Airshad Kahn’s vehicle.  It caused his chin to strike the steering wheel and his right knee to strike under the steering wheel.  He filed the within lawsuit against defendant Kahn.  These two lawsuits were consolidated and discovery ensued.  He claimed that his symptoms from the first accident became significantly worse following his second accident.

Plaintiff treated with a chiropractor (Dr. Funiciello) who prepared a narrative report.  The chiropractor attributed a direct causal link between plaintiff’s injuries and the May accident.  He also opined that his exacerbations were due solely to the severe injuries to his neck and back following the accident in May 2019.  Thereafter, he settled the Norman matter (the first accident).

Plaintiff then obtained chiropractic treatment with Dr. Wael Elkholy for the injuries suffered in the June accident.  His complaints were of his neck, left shoulder, lower back and right knee.

Following the close of discovery, defendant Kahn filed a motion for summary judgment, arguing that plaintiff had not established his injuries were caused by the June accident or that the June accident exacerbated his injuries from the May accident.   Plaintiff relied on the treatment records from Dr. Elkholy and opposed the motion. 

Before the motion was heard, plaintiff returned to Dr. Elkholy to treat his persistent low back pain.  He obtained a second MRI which now showed a new disc herniation at L4-5 and L5-S1 and a new thecal sac decompression at L4-5 was recommended and was subsequently performed in July 2022.  Plaintiff provided a supplemental certification with these additional medical records.  However, the treatment records from Dr. Elkholy did not causally relate plaintiff’s injuries to the June accident, nor did they state that there was exacerbation of his injuries from the May accident.

The trial court judge granted the defendant’s motion for summary judgment.  The judge found that there was a “complete absence of any report showing either causation or exacerbation from the second accident.”  The injuries from the first accident were severe and the judge found they were still severe when the second accident occurred.  He held that the “lack of any reference to a causal connection between the second accident to the plaintiff’s injuries is fatal to the plaintiff’s case.” 

This decision was appealed.  Plaintiff argued that there should be a reversal because of the inference of fact weighed in his favor, which would permit a jury to find his injuries were caused by the June accident.

The Appellate Division rejected that argument.  It found that there can be no inference drawn from the plaintiff’s treatment records and diagnostic tests related to the June accident.  The progress notes did not state that the June accident was the cause of plaintiff’s injuries.  Further, plaintiff submitted no expert report or proof that the injuries he suffered were caused by the June accident.

Even though there was a lack of proof, plaintiff argued that the June accident aggravated his pre-existing injuries from the May accident.  He pointed to the June 2022 MRI which showed two new disc herniations when compared to the May 2019 MRI.  However, neither Dr. Elkholy’s treatment records, nor Dr. Funiciello’s narrative report attributed any portion of plaintiff’s injuries to the June accident.

 Hence, the Appellate Division found that plaintiff failed to show an aggravation of pre-existing injuries.  The Court further noted that plaintiff failed to produce any comparative evidence regarding his injuries from the May and June accidents.

 In conclusion, the Appellate Division found that the plaintiff could not show the causation element of his negligence claim concerning the June accident.  Because plaintiff failed to establish proximate causation, defendant was entitled to summary judgment.  Thus, the Appellate Division affirmed the trial court decision dismissing the lawsuit.

Landowners Liability Act Bars Claim for Fall in County Park

Plaintiff Andris Arias fell in a hole and was injured while rollerblading on a paved pedestrian pathway in Van Saun County Park in Paramus.  The Park, owned by the County of Bergen, consisted of 130 acres of land.  The issue in Arias v. County of Bergen, 2024 N.J. Super. LEXIS 74 (App. Div. June 14, 2024) was whether the County had immunity under the Landowners Liability Act for this accident.

Under the Landowners Liability Act, certain owners, lessees and occupants of property owe no duty to persons injured while using property for recreational activities and are immune from suit.  N.J.S.A. 2A:42A-3.  This immunity is available to public entities.  The immunity is not available to persons or entities if there is a “willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity.” 

The plaintiff argued that the County was not entitled to immunity under this Act because the Park was located in a residential, suburban neighborhood and, therefore, did not qualify as “premises” protected by the Act.  The County, however, argued that the focus of the Act was the dominant character of the land and the Park, as a property containing recreational lands, was exactly the type of premises that the Act was created to protect. 

Here, the trial court granted defendant’s motion to dismiss, which order was appealed to the Appellate Division.  The Appellate Division upheld the dismissal of the complaint.  It found that under the “dominant character of the land analysis, it was undisputed that the Park offered the general public access to picnic areas, playgrounds, pavilions, athletic fields, wooded areas, bicycling and wooded paths, and the dog park – without charging a fee.”

The Court noted that the Park’s “dominant character as an open space for sport and recreational activities renders the Park the type of property entitled to protection” under the Landowners Liability Act.  Thus, it agreed with the trial court judge that the Park was a “premises” as defined by the Act and that the County was entitled to Landowners Liability Act immunity from this accident.  The Appellate Division also agreed that the motion was not premature and affirmed the trial court decision, dismissing the lawsuit. 

Appellate Division Rules That Department of Transportation and State of New Jersey Were Not Liable for Injury Caused by Pothole

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

Plaintiff Josef and Stefani Langel filed a complaint against Defendants New Jersey Department of Transportation (DOT), State of New Jersey, county, municipal, and private entities, alleging that Defendants’ failure to provide proper warning and repair a pothole in the roadway caused his injuries when he was thrown off his bike. The issue in Langel v. State DOT, 2024 N.J. Super. Unpub. LEXIS 1490 (App. Div. July 10, 2024) was whether Defendants DOT and the State of New Jersey were liable for the injuries Plaintiff Josef Langel sustained from the pothole.

On March 16, 2019, Josef Langel rode a bicycle on Sylvan Avenue, a section of Route 9 West, in Englewood Cliffs, NJ. He hit a pothole in the roadway, causing him to be thrown off his bike and sustain injuries. Plaintiff and his friends were on a bike trip from New York City to Piermont, NY. Plaintiff claimed that he rode the same route six months before the accident. However, Plaintiff never noticed the pothole before the accident, nor made any complaint about the road conditions to any state entities.

Ronald Gallucci, a DOT crew supervisor who oversaw the maintenance of Route 9 West, testified that he had neither received any complaints, nor seen the pothole that injured the Plaintiff. He stated that his maintenance crew inspected the roadway every other day for potholes. According to Gallucci, if the DOT had received a complaint about the potholes, he or his crew would have inspected the area.

William Falato, a DOT equipment operator, also testified that he was familiar with the area where the accident occurred and had never seen the pothole before. According to this witness, if the pothole had been there for a substantial period, he or his crew would have noticed it due to its large size. He also recounted instances where his crews inspected an area and saw no potholes, but within days later, DOT received a complaint that a pothole had formed.

Englewood Cliffs Patrol Officer Marc Krapels, who responded to Plaintiff’s accident, also testified that he had not seen the pothole before. Krapels stated that from his experience patrolling the area, a pothole could form at any time, since the town is located on a cliff. DOT also provided complaints it received on February 27, 2019 regarding potholes in areas surrounding where Plaintiff hit the pothole. However, the records indicated DOT did not receive any complaint about the pothole that Plaintiff hit.

Meanwhile, Plaintiff obtained a report from expert engineer Richard Balgowan, who indicated that the pothole had been present for at least a year before Plaintiff’s accident. However, Balgowan admitted that he did not inspect the location until April 23, 2021, which was more than two years since Plaintiff’s accident, and the pothole had been repaired by then.

On August 1, 2022, Defendants filed a motion for summary judgment claiming they were entitled to discretionary immunity under the NJ Tort Claims Act (TCA), N.J.S.A. 59:2-3. Defendants maintained that their conduct in maintaining the roadway was not palpably unreasonable, and Plaintiff’s expert report was a net opinion. On the other hand, Plaintiff cross-moved for summary judgment, arguing that defendants were not entitled to discretionary immunity. Plaintiffs claimed Defendants had actual and constructive knowledge of the dangerous conditions, and their actions or omissions were palpably unreasonable. Plaintiff also argued that their expert report was not a net opinion.

The Law Division granted the summary judgment in favor of Defendants DOT and the State of New Jersey, denied Plaintiff’s summary judgment, and dismissed the complaint with prejudice. Ultimately, Plaintiff moved for reconsideration. Plaintiff’s motion for summary judgment and reconsideration was denied because they had failed to establish that Defendants had actual or constructive notice of the pothole. On appeal, the Appellate Division reviewed whether the trial judge had abused his discretion in denying Plaintiff’s motions for reconsideration.

Under the TCA, a public entity is liable for injuries caused by a dangerous condition if it has actual or constructive notice of its existence. To establish actual notice, Plaintiff must show that the public entity has actual knowledge of the existence of a condition and knew or should have known of its dangerous character. Defendants can still be liable, even though they didn’t have actual notice if Plaintiff can establish that they have constructive notice of the dangerous condition. To establish constructive notice, Plaintiffs must show that the dangerous condition had existed for a period of time and was of such an obvious nature that Defendants should have discovered it if they exercised due care.

To show actual knowledge, Plaintiff offered a photograph of the pothole that had been paved over at some point. However, Plaintiff failed to prove that the repair was performed before the accident. Thus, Plaintiff could not prove that Defendants had actual notice or knew about the pothole before his accident. Regarding constructive notice, Defendants’ witnesses all testified that a pothole could have formed within a few days or even overnight. Plaintiff could not show that the pothole had existed for a period of time despite its obvious nature, and DOT failed to exercise due care to discover it. Thus, Plaintiff was also unable to establish Defendants had constructive notice of the pothole.

Furthermore, the Appellate Division held that the expert’s opinion Plaintiff provided was a mere conclusion. Applying the standard established by the NJ Supreme Court in Pomerantz Paper Corp. v. New Community Corp. regarding the admissibility of expert opinions, the Court concluded that the expert’s opinions in this case were a mere conclusion because Plaintiffs’ expert witness could not “give the why and wherefore” to support his opinion. Furthermore, the fact this expert did not inspect the pothole in person two years after the accident did not weigh in favor of Plaintiffs.

Under discretionary immunity, a public entity is not liable for the exercise of discretion unless a court concludes that its procedures or policies are palpably unreasonable. Although the Law Division did not rely on this doctrine as a basis to grant Defendant’s motion, the Appellate Division applied the doctrine in this case and held that the DOT Assistant Commissioner’s decisions in inspecting roadway and repairing potholes were entitled to discretionary immunity. Thus, Defendants are not liable for Plaintiff’s injuries because their conduct in maintaining the roadway and making repairs was not palpably unreasonable.

Hence, the Appellate Division affirmed the summary judgment granted to the Defendants, dismissing the Complaint.

Plaintiff’s Personal Injury Claim Dismissed Due to Lack of Expert Report As to Causation

The decedent Alice Trainor fell while attending the defendant’s adult day health care services.  The 89-year-old Alice fell while walking towards the bathroom at the defendant’s facility, suffered injuries, and ultimately passed away.  The issue in Estate of Alice Trainor v. Active Day of Brick, 2024 N.J. Super. Unpub. LEXIS 552 (App. Div. Apr. 3, 2024) was whether the plaintiff was required to provide expert testimony as to the causation of Alice’s injuries to be able to pursue a claim for personal injuries.

The decedent, Alice Trainor, with vascular dementia, was attending adult day health care services at defendant’s Active Day of Brick’s facility.  She began walking towards the bathroom at the facility when another participant in the program attempted to help her.  However, defendant’s activities manager, Kellie Piaskowski, intervened and proceeded to assist Alice towards the bathroom.  She was attempting to guide her there.  Alice was shuffling her feet somewhat and tripped over her feet.  Alice fell flat down to the floor and banged her face.  She was taken by ambulance and treated for her injuries.  A few weeks later, she was found unresponsive, and her condition deteriorated.  She ultimately passed away within two months after the incident.

Her Estate filed a lawsuit against the facility, arguing that the defendant facility had a duty to provide Alice with a safe environment but failed to do so.  The defendant moved for a summary judgment, arguing that the plaintiff’s claims failed because plaintiff did not have a medical expert to support plaintiff’s case.  The trial judge agreed with that argument, finding that plaintiffs had not provided an expert medical opinion asserting a causal relationship between the alleged negligence and the injuries Alice suffered. The judge granted the motion, dismissing the case and this appeal ensued.

Plaintiffs argued that there was a State mandated ratio of 9-1 (patient to staff ratio) and that Medicaid required a ratio of 5-1.  However, the defendant maintained a 30-1 ratio of patients to staff.  Plaintiffs argued that, because of the extreme imbalance between patients and caregivers, the finder of fact could rely on the theory of res ipsa loquitur to infer defendant’s lack of due care and, hence, negligence.  The trial judge had rejected this theory, stating that “under any stretch of the imagination,” this was not a res ipsa loquitor case.

Plaintiffs argued upon appeal that the medical causation was not in question and the jury does not need an expert to determine whether defendants’ 30-1 patient to staff ratio was a gross deviation from the standard of care.  The Appellate Division rejected that argument.

The Appellate Division noted that the doctrine of res ipsa loquitur, if applied, would allow a finder of fact “to infer with the defendant’s lack of due care only when three elements of the doctrine had been satisfied:

a)         The occurrence itself ordinarily speaks negligence;

b)         The instrumentality was within the defendant’s exclusive control; and

c)         There is no indication in the circumstances that the injury was the result of the plaintiff’s own voluntary act or neglect.

The Court noted that to satisfy this res ipsa loquitur standard, “plaintiffs would need to demonstrate that an 89-year-old falling while being assisted by a caregiver ‘itself ordinarily bespeaks negligence’; the environment was in ‘defendant’s exclusive control’; and ‘there was no indication in the circumstances that the injury was the result of [Alice]’s own voluntary act or neglect.’”  The Appellate Division found that the plaintiff was not able to satisfy any of these elements. 

Further, the Court explained that res ipsa loquitur only fills in a gap in plaintiff’s negligence claim with the respect to a breach of duty of care and not as to the causal relationship between a breach and the injury suffered.  The causal relationship is what the trial judge found was missing.  The Appellate Division noted that the jury would have no means of judging whether defendant’s purported short staffing or the staff member who helped Alice was the proximate cause of Alice’s injuries.

The appeals court agreed with the trial court’s conclusion that “a lay jury is insufficiently knowledgeable of the specifics of elder care and assistance to competently determine whether any purported short-staffing or Piaskowski’s helping Alice to the bathroom was the cause of Alice’s injuries.”  Thus, the Appellate Division affirmed the trial judge’s decision that, lacking expert testimony to that effect, the defendant must prevail as a matter of law. 

Plaintiff’s Personal Injury Claim Found Barred by Statute of Limitations

Plaintiff, the Estate of Irene Avagnano appealed the trial court’s order granting summary judgment, dismissing the personal injury action filed against defendants, Atrium Post Acute Care at Wayneview (“Atrium”) and Pulse Medical Transportation (“Pulse”).  Plaintiff had alleged claims of negligence, gross negligence and violation of the New Jersey Nursing Home Responsibilities and Rights of Residents Act in connection with a fall that occurred in May 2018.  An earlier complaint had been dismissed because it was filed in Avagnano’s name after her death, which rendered it a nullity.  Avagnano’s Estate then filed this second action.  The trial court determined that the Estate’s complaint was time-barred under the two-year statute of limitations.  The issue in Estate of Irene Avagnano v. Atrium Post Acute Care at Wayneview, 2023 N.J. Super. Unpub. LEXIS 740 (App. Div. May 15, 2023), was whether the trial court correctly ruled that the complaint was barred and that no equitable doctrines applied to extend the statute of limitations.

The lawsuit arose from a fall on May 11, 2018 of Irene Avagnano, a resident of Atrium’s nursing home.  She fell out of a wheelchair while being transported to a doctor appointment by Pulse.  Due to the fall, she suffered cervical vertebrae fractures.  On August 2, 2018, she died at the age of 91 from causes unrelated to the accident.  Her counsel, who had been retained prior to her death, filed a lawsuit on January 17, 2019, not knowing she had died four months earlier.

On April 29, 2020, Ms. Avagnano’s son, Frank Avagnano, was appointed administrator ad prosequendum.  He did not advise the attorney who filed the lawsuit of his ad prosequendum appointment until August 18, 2020.  The next day, the second complaint was filed, making the same claims as in the first complaint but in the name of the Estate.

Prior to the filing of the second complaint, Pulse had filed a motion to dismiss the first complaint on the grounds that a complaint cannot be brought by a deceased person.  That motion was granted and the first complaint was dismissed.  Pulse later filed a motion to dismiss the first complaint with prejudice, which was granted.  The dismissal of the initial complaint was not appealed.

Thereafter, Pulse filed a second motion in lieu of an Answer to dismiss the second amended complaint as to the two-year statute of limitations.  Atrium filed an Answer and moved for a summary judgment on the same grounds.

The Estate opposed defendants’ motion.  It argued that the statute of limitations was tolled until the date of Avagnano’s death because she lacked capacity to understand her legal rights.  Plaintiff’s counsel produced medical records indicating that Avagnano suffered from auditory hallucinations and impaired cognition.  However, plaintiff failed to submit an expert report regarding her mental competency at the relevant times.  Plaintiff also raised the theories of substantial compliance and equitable tolling to excuse the failure to comply with the statute of limitations.

Nevertheless, the trial court judge granted defendants’ motion and dismissed the second complaint with prejudice.  He ruled that the second complaint could not relate back to the initial complaint to meet the statute of limitations because the initial complaint was a legal nullity.  He rejected plaintiff’s mental incapacity tolling argument because of the plaintiff’s failure to establish that a condition of mental derangement actually prevented her from understanding her legal rights or initiating legal actions.  The trial court also rejected plaintiff’s substantial compliance theory.  The court reasoned that the initial complaint provided insufficient notice because it contained only broad generalities.  Last, the trial court judge rejected plaintiff’s equitable tolling argument.  He concluded that there was no wrongdoing on the part of the defendants that would have induced plaintiff into missing the deadline. 

Upon appeal, the Appellate Division reviewed the plaintiff’s argument that the complaint should not have been barred by the statute of limitations.  The Court rejected all of the plaintiff’s arguments and affirmed the trial court’s dismissal of the second complaint.   The Appellate Division agreed with the trial court that the first lawsuit was a nullity because it was brought in the name of a dead person.  Hence, an amended complaint could not relate back to something that never existed, nor can a non-existent complaint be corrected.

The Appellate Division also rejected plaintiff’s argument that the second complaint was timely filed based upon tolling attributable to decedent’s incompetence.  The Court found the tolling argument unavailing because the second complaint was still filed after the statute of limitations expired.

The Court also considered the applicability of the doctrine of substantial compliance.  The Appellate Division found that doctrine inapplicable as well. 

Finally, the Court considered the doctrine of equitable tolling.  The Court noted that absent a showing of intentional inducement or trickery by a defendant, equitable tolling should be applied sparingly and “only in the rare situation where it is demanded by sound legal principles and in the interest of justice.”  It would require the plaintiff to diligently pursue their claim and does not excuse claimants from exercising reasonable insight and diligence required to pursue their claim.

The Appellate Division agreed with the trial court that equitable tolling did not apply.  Just because a mistake was made in the filing of the initial complaint and there was a lack of communication between the power of attorney and the law firm, that mistake did not merit the application of equitable tolling so as to extend the statute of limitations.

Hence, the Appellate Division agreed with the trial court on all rulings and determined that the second complaint should be dismissed with prejudice. 

Homeowner Did Not Have Insurance Coverage for Accident of Person Who Lived With Insured

Plaintiff Mary Ann Iaeck lived with Patricia Barnaba in a condominium owned by Defendant Barnaba.  Plaintiff fell down a flight of stairs in the condominium and sued Barnaba, claiming that Barnaba’s negligence caused her fall.  Barnaba had a homeowner’s insurance policy with personal liability coverage with Federal Insurance Company (“Federal”).  The issue in Iaeck v. Barnaba, 2023 N.J. Super. Unpub. LEXIS 1768 (App. Div. Oct. 16, 2023) was whether the Federal insurance policy provided coverage for this personal injury claim or whether the exclusion for liability to persons who live with the policyholder was triggered.

Plaintiff had lived with Barnaba in the condominium since 2008.  She had a verbal lease with Barnaba and paid Barnaba rent.  However, it was undisputed that they shared parts of the condominium, including the kitchen, the garage, the mailbox and the space where the washing machine and dryer were located.  Plaintiff used the bedroom and bathroom on the fourth floor of the condominium.

After living with Barnaba for about 11 years, plaintiff fell down the stairway in the condominium.  She claimed that she tripped because the lights were out, the handrail was loose and Barnaba had placed boxes and other things on the steps.

As a result of her fall, plaintiff suffered a fracture of her left leg and compartment syndrome. Plaintiff was required to have multiple surgeries, which left her with permanent scarring.

At the time of the accident, Barnaba had a homeowner’s insurance policy with Federal.  The policy did cover Barnaba’s home and provided her with personal liability coverage which provided coverage for damages Barnaba was legally obligated to pay for personal injuries.

However, the policy contained numerous exclusions.  The pertinent one was entitled “Covered person’s or dependent’s personal injury.”  According to that exclusion, Federal stated that it would not cover damages for personal injuries for any covered person or their dependents where the ultimate beneficiary is the offending party or defendant.  Further, the exclusion stated that Federal would not cover any damages for personal injury “for which you or a family member can be held legally liable in any way, to a spouse, a family member, a person who lives with you, or a person named in the Coverage Summary.”

After the plaintiff’s fall, counsel for plaintiff sent Federal a letter advising of the fall and asking Federal to open a bodily injury claim under its policy.  Thereafter, Federal denied any obligation to provide Barnaba with coverage for plaintiff’s injuries.  Federal advised that Barnaba’s personal liability coverage was excluded under the policy’s “Covered person’s or dependent’s personal injury exclusion.”

Thereafter, plaintiff sued Barnaba with plaintiff claiming that Barnaba was negligent in causing her injuries.  Thereafter, plaintiff amended her complaint to assert a direct claim against Federal and sought a declaratory judgment that the policy issued by Federal to Barnaba provided coverage for plaintiff’s injuries.  She also requested a default against Barnaba.  Sometime later the trial court conducted a proof hearing concerning plaintiff’s injuries, for which Barnaba did not appear.  A judgment in the amount of $766,330 was entered in favor of plaintiff against Barnaba.

Cross-motions for summary judgment were filed between Federal and plaintiff as to the coverage issue.  The trial court granted summary judgment to Federal and declared that Federal did not have any indemnity or defense obligations as to plaintiff’s personal injury claims against Barnaba and dismissed all claims against Federal with prejudice.  That order was appealed to the Appellate Division.

The issue upon appeal was whether the “Covered person’s or dependent’s personal injury” exclusion applied to plaintiff’s personal injury claims because plaintiff lived with Barnaba.  The Appellate Division noted the well settled concepts that coverage provisions are to be read broadly and exclusions are to be read narrowly with any potential ambiguities being resolved in favor of the insured. Further, the policy is to be read in a manner that fulfills the insured’s reasonable expectations.  However, if the plain language of the policy is unambiguous, the court is not to engage in a strained construction to support the imposition of liability or write a better policy for the insured than the one purchased.

In applying these principles, the Appellate Division found that the “Covered person’s or dependent’s personal injury” exclusion did apply.  The Appellate Division explained that Barnaba’s liability to plaintiff for her personal injuries was excluded under the policy because plaintiff did live with Barnaba at the time of the accident.  It found that the language was “plain and unambiguous.”  The Court found that the exclusion applied to personal injury suffered by plaintiff because plaintiff was living with Barnaba at the time of the accident.  It found no ambiguity in this exclusion, even if read narrowly, and also found that it was not contrary to public policy because “it is reasonable for an insurer to exclude coverage for liability for personal injuries to people who live with the covered person.”

One of the arguments made by plaintiff upon appeal was that the exclusion should be read to apply only to individuals who are part of the covered person’s household or who have a romantic or familial relationship with the covered person.  The Appellate Division rejected that argument as inconsistent with the plain language of the exclusion.  It noted that the exclusion did not use the term “household” members.  Rather, it stated that there was no liability coverage for personal injuries to “a person who lives with” the covered person.

Further, the Appellate Division found that if the exclusion was meant only to apply to household members or family members, there would be no need to list “a spouse, a family member or a person who lives with you.”  By separately listing “a person who lives with you,” the Court found that “Federal was clearly stating that the exclusion applied to people who are not in a familial relationship.”  There was nothing in the terms “a person who lives with you” that require that there be a romantic relationship between that person and the covered person.

The Court rejected all of the plaintiff’s other arguments and upheld the trial court’s decision. Thus, the summary judgment entered in favor of the Federal Insurance Company dismissing the case against it was affirmed. 

Plaintiff’s Settlement of Property-Based Claim Against Landlord Found Not to Bar Subsequent Personal Injury Claim

Plaintiff Lourdes Gonzalez had filed a lawsuit against her landlord, defendant 908-910 Washington Street, LLC, alleging various theories of liability, based upon the condition of her apartment.  That lawsuit was settled on certain terms which included a general release of any and all claims against the landlord.  The issue in Gonzalez v. 908-910 Washington Street, LLC, 2023 N.J. Super. Unpub. LEXIS 1528 (App. Div. Sept. 13, 2023) was whether the plaintiff’s subsequent lawsuit for a personal injury based upon alleged lead poisoning in her apartment’s water supply was barred by the release she signed in the property dispute.

Plaintiff, along with two other tenants, had filed suit against the defendant landlord claiming that “ongoing course of discriminatory and unconscionable conduct for the purposes of evicting tenants are causing them to vacate the leased premises.”  Plaintiff sued the landlord based upon various theories of liability and requested an order enjoining the defendant landlord from pursuing eviction and she also sought damages.  Subsequently, that lawsuit was settled pursuant to a six-page settlement agreement which included a general release.  These settlement terms included the execution of a two-year lease with the parties’ simultaneous execution of a consent judgment for possession at the end of the two-year period and the defendant landlord’s payment to the plaintiff of $55,000.

The settlement agreement included a general release which contained language releasing the landlord from any and all actions and causes of action, whether known or unknown, or whether asserted or which could have been asserted against the landlord.

Following the execution of the agreement, the plaintiff retained the services of a building inspector to document her apartment’s condition at the beginning of her new lease.  The inspector tested her water.  She learned from the inspector’s report that the lead level in her apartment’s hot water supply was 60 times greater than the level permitted under federal regulations.  She had her blood levels tested and she learned that she had an elevated lead level.

Thereafter, plaintiff vacated the premises pursuant to the settlement agreement.  Following her departure from the apartment, she sued the defendant landlord a second time, claiming that the landlord negligently installed plumbing in her apartment and sought damages for personal injury.  She claimed that the hot water pipe to her apartment tested for lead and that the test results showed a lead level 60 times the permissible lead levels established by the United States Environmental Protection Agency.  She further claimed that she suffered chronic lead poisoning caused by the prolonged contact with the lead contaminated water supply in her apartment and that the lead poisoning resulted in a serious permanent bodily injury.  She sued on various theories of liability which boiled down to the defendant landlord’s “alleged failure to maintain plaintiff’s apartment’s potable water supply in a safe condition, resulting in harm to her through lead contamination.”

The defendant landlord filed a motion to enforce the settlement agreement and dismiss the complaint with prejudice.  The trial court found that all parties had the capacity to understand and enter into this agreement and granted the motion as to defendant, finding that the agreement unambiguously and expressly provided that any and all claims arising out of or relating to the prior lawsuit were waived, which included claims and damages, known or unknown.   The trial court relied upon prior case law for the proposition that a plaintiff who has signed a general release is barred from bringing a subsequent personal injury claim. 

Plaintiff appealed that order, finding that the trial court failed to apply the Supreme Court’s holding in Bilotti v. Accurate Forming Corp.   Pursuant to Bilotti, the Court held that the scope of a release must be determined by the intention of the parties “as expressed in the terms of the particular instrument, considered in the light of all the facts and circumstances.”  A general release would ordinarily cover all claims and demands due at the time of its execution and within the contemplation of the parties.  However, questions of such intent cannot ordinarily be “fairly disposed of on affidavits in a summary judgment application.”

In opposing the defendant’s motion to enforce the settlement, plaintiff submitted a certification that she did not intend to give up any future claims for personal injury damages due to lead poisoning.  Her first complaint was a property-based relief as she sought to compel her landlord to make repairs to her apartment.  Her claims at that time were that the building plumbing system did not supply adequate hot water to her apartment.  It was only after she settled her first lawsuit that she learned that the hot water system was contaminated with lead at unsafe levels.

After considering all of the facts in this case, the Appellate Division did find that the Bilotti case applied and emphasized that a general release, while it would ordinarily cover all claims and demands at the time of its execution, it would only cover those claims within the contemplation of the parties.  The Court found that the trial court made a mistake when it failed to find that there were genuine factual issues on the question of the party’s intent when they settled the first lawsuit.  Hence, the court’s order of dismissal was vacated and the case was remanded back to the trial court for further proceedings. 

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