Angeles v. Ruiz

• Docket Number: A-3751-20
• Decision Date: 26 May 2023
• Parties: RALPH ANGELES, Plaintiff-Appellant/Cross-Respondent, v. NEVIER RUIZ and TOWN OF KEARNY, Defendants-Respondents/Cross-Appellants.
• Court: New Jersey Superior Court — Appellate Division

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RALPH ANGELES, Plaintiff-Appellant/Cross-Respondent, v. NEVIER RUIZ and TOWN OF KEARNY, Defendants-Respondents/Cross-Appellants.

No. A-3751-20

Superior Court of New Jersey, Appellate Division

May 26, 2023

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Argued May 15, 2023

On appeal from the Superior Court of New Jersey, Law Division Hudson County, Docket No. L-0468-19.

F.R "Chip" Dunne, III, argued the cause for appellant/cross-respondent (Dunne, Dunne & Cohen, LLC attorneys; F.R. "Chip" Dunne, III, of counsel and on the briefs; David P. Cerqueira, on the briefs).

Monique D. Moreira argued the cause for respondents/cross-appellants (Moreira & Moreira, PC, SUPERIOR COURT OF NEW JERSEY attorneys; Monique D. Moreira, Denis F. Driscoll, and Graham K. Staton, on the briefs).

Before Judges Whipple, Mawla, and Walcott-Henderson.

PER CURIAM.

Plaintiff Ralph Angeles appeals from a July 1, 2021 order granting defendants Nevier Ruiz and the Town of Kearny summary judgment dismissing plaintiff's personal injury complaint, pursuant to N.J.S.A. 59:4-7 of the New Jersey Tort Claims Act (TCA).^[1] Plaintiff also challenges an August 6 2021 order denying a motion for reconsideration. Defendants cross-appeal from an April 1, 2019 order denying their motion to dismiss the complaint for failure to file a timely notice of claim, under N.J.S.A. 59:8-3. They also challenge a May 14, 2019 order denying their motion for reconsideration. We affirm in part, and reverse and remand in part, for the reasons expressed in this opinion.

On February 10, 2016, Ruiz was driving a Town of Kearny snowplow near the intersection of Woodland Avenue and Devon Street in Kearny. He had the plow in the lowered position because he planned to clear Kearny Avenue of snow because it is a snow emergency route. According to a vehicle report, Ruiz's truck was traveling at twenty-two miles per hour approximately two-tenths of a mile away from the intersection. The truck slowed to ten miles per hour as it entered the intersection and collided with the passenger side of a car driven by plaintiff, injuring him.

Kearny Police Sergeant Phillip Finch responded to the scene and wrote a report detailing his investigation. He noted Ruiz "state[d] he was traveling south on Devon St[reet] and began to slow by taking his foot off of the gas approximately 200 feet prior to the stop sign. When he began to [brake,] the truck began to slide through the stop sign and struck [plaintiff's vehicle]." Plaintiff told the sergeant "he was crossing Devon St[reet] heading west on Woodland Ave[nue] when he was struck by [Ruiz's vehicle]." Sergeant Finch's report noted the damage to plaintiff's car, his injuries, and

conclude[d] that [the truck] was traveling south on Devon St[reet] when it failed to stop at the stop sign[,] at which time [the snowplow] struck [plaintiff's car]. [The car] was then pushed south and picked up off the ground. The momentum of [the truck] then forced [plaintiff] towards the passenger side of [his car] and, due to not having a seatbelt on, caused [plaintiff] to hit his face against the top driver side of [the truck's] snowplow which was now through [plaintiff's car's] passenger window. [Plaintiff's car] came loose [from] the plow, began to rotate clockwise, and skidded on its front driver wheel until it struck [another car] and came to a final uncontrolled rest with all of [its] wheels returning to the ground. [The truck] and snowy conditions are at fault for this crash.

On February 16, 2017, plaintiff's counsel faxed a letter of representation to Kearny's insurance carrier, "Re: Ralph Angeles Date of Accident: 2/10/2017." The letter stated it was "with regard to the injuries [plaintiff] sustained in the above captioned accident" and "request[ed] that a [b]odily [i]njury claim be opened on behalf of [plaintiff]." The letter requested the carrier send plaintiff's counsel a copy of the insurance declaration page in place at the time of the accident and direct all future correspondence to counsel. The following day, the carrier sent an email to Kearny staff stating: "Do you have additional info on this claim[? T]here is not enough detail to put [the] claim in [the] system." Town staff then forwarded the email to plaintiff's counsel stating: "Please see response from . . . [the c] arrier. Insurance needs more information on this case. You can also download a Tort Claim from our web site www.kearnynj.org under Departments/Town Clerk." (emphasis in original).

Plaintiff's counsel never completed the tort claim form on the Kearny website. Instead, on February 22, 2017, counsel sent a reply email stating:

[Plaintiff] was injured on February 10, 2017[,] when his vehicle was struck by a Town of Kearny snowplow truck .... I have attached a copy of the [p]olice [r]eport for your review. [Plaintiff] required over 100 stitches to repair a long and deep laceration to his face, he is experiencing jaw pain, he cannot hear out of his right ear, cannot move the area above his right eye nor does he have any feeling in the area. Additionally, [he] suffers headaches and is having trouble sleeping as a result of the accident.

All of [plaintiff's] personal information is contained in the [p]olice [r]eport but I request that all communications be submitted to my office.

Please let me know if you need any additional information in order to open the claim.

The next day, an insurance claims representative from the carrier responded to counsel reserving Kearny's^[2] right to disclaim coverage under the TCA but requesting additional information to assist him in his investigation, including plaintiff's: social security number; a list of his doctors; medical releases; insurance carrier information and a copy of his insurance declaration page; and photos of the vehicle's damage. Plaintiff's counsel and the representative then engaged in email correspondence, exchanging information related to plaintiff's injuries and damage to his car.

On February 1, 2019, plaintiff filed a complaint in the Law Division against defendants for negligence and damages. Defendants filed a motion to dismiss the complaint for failure to file a timely notice of claim or move to file a late claim notice under N.J.S.A. 59:8-9. While the motion was pending, plaintiff's counsel emailed defense counsel advising he received an acknowledgment of the claim and had been in communication with the claims adjuster. Counsel attached correspondence from the carrier dated February 23, 2017 opening the claim, and requested defendants withdraw their motion because it was "unreasonable and illogical for Kearny to now argue it was not placed on proper notice."

Defense counsel emailed plaintiff's counsel asking he provide her "with proof that the information was sent to [its insurance carrier] or [itself]." Counsel responded asking: "What information are you referring to?" and noted he responded to Kearny's email asking for more information to open the claim and that a "claim was then opened." He "received written confirmation from the . . . carrier opening the claim and referencing this as a Title 59 action[,]" and noted he then had "further communications [with the adjuster,] both oral and written, on this claim."

At oral argument on the motion to dismiss, defendants asserted plaintiff never submitted a timely notice of claim because counsel did not complete Kearny's form. Plaintiff's counsel pointed to the emails between him and the carrier, Kearny's staff, and defense counsel, which he argued provided all the information that would normally be included on the TCA claim form and responded to all the requests made by Kearny and the carrier. Counsel noted Kearny received detailed information regarding the accident, plaintiff's injuries, and his medical history.

The motion judge observed even though the better practice was for plaintiff to complete Kearny's claim form, "[t]here is nothing in the statute that says that a claimant has to fill out the municipality's [n]otice of [c]laim form. They have to merely give all [the information required by N.J.S.A. 59:8-4]." The judge declined to dismiss the case, noting plaintiff had "serious injuries."

Defendants moved for reconsideration, arguing the judge erred because the filing of the TCA claim form was mandatory. The judge was unpersuaded because Kearny's email directing plaintiff's counsel to its form did "not unequivocally state plaintiff's claim will not be considered unless a form is [filled] out. The email merely states 'can' and not 'must.' Moreover, . . . a series of emails between counsel and the insurance adjuster took place-where counsel provided the required information."

Following the denial of defendants' motion, they answered the complaint and the parties exchanged discovery. At deposition, Ruiz testified he had been driving since midnight "with breaks in between" to sleep and eat. A little before 8:00 a.m. he "was traveling south on Devon Street, and . . . started braking . . . 150 feet, maybe a little bit more, and . . . felt the truck give way, kind of kick- start sliding a little bit as [he] was braking." Ruiz "saw [plaintiff] coming up from the park to the corner . . . but [he] knew the truck wasn't stopping ...."

He believed he "must have hit slush and . . . a little bit of ice left and [the truck] did not stop, and that is when it traveled through the intersection and struck the vehicle." He remembered the truck going approximately sixteen to seventeen miles per hour when he started to brake between 150 to 200 feet prior to the intersection, and believed he was...