Darrow v. Hanover Tp.

• Decision Date: 25 November 1970
• Citation: 271 A.2d 458,112 N.J.Super. 396
• Parties: Gerald DARROW and Herma Darrow, Plaintiffs, v. HANOVER TOWNSHIP, a Municipal Corporation of the State of New Jersey, and The Couty of Morris, Defendants.
• Court: New Jersey County Court

Page 396

112 N.J.Super. 396

271 A.2d 458

Gerald DARROW and Herma Darrow, Plaintiffs, v. HANOVER TOWNSHIP, a Municipal Corporation of the State of New Jersey, and The Couty of Morris, Defendants.

Morris County Court, Law Division New Jersey.

Nov. 25, 1970.

Stephen S. Weinstein, Morristown, for plaintiffs.

Morgan, Melhuish, Monaghan, McCoid & Spielvogel, Newark, for defendant Hanover Tp. (Richard E. Arvidson, Newark, of counsel and on the brief).

O'Donnell, Conway & Leary, Morristown, for defendant County of Morris (W. Stephen Leary, Morristown, of counsel).

Porzio, Bromberg & Newman, Morristown, for plaintiffs on the counterclaim (Myron J. Bromberg, Morristown, of counsel).

WAUGH, A.J.S.C.

On April 13, 1967 plaintiffs Gerald Darrow, the driver, and his wife Herma Darrow, a passenger, were injured when his vehicle struck a tree adjoining Ridgedale Avenue, Hanover Township, Morris County. An action against Hanover Township and the County of Morris was filed on April 14, 1969. The township answer alleges that both plaintiffs were contributorily negligent. After pretrial, an order was entered dismissing the action against the County of Morris.

On September 9, 1970 defendant Township sought and was granted leave to file a counterclaim for contributory negligence against Gerald Darrow under the Joint Tortfeasors' Contribution Law, N.J.S.A. 2A:53A--1 et seq. Plaintiff Darrow, answering the counterclaim, raised the defenses of interspousal immunity and the statute of limitations.

Thereafter, Darrow filed a notice of motion for an order dismissing this counterclaim and granting summary judgment thereon, on the ground that the claim of the counterclaim is barred by the defense of interspousal immunity. The motion came on for hearing on October 23, 1970.

Although the statute of limitations was raised as a defense in the answer to the counterclaim, counsel did not urge this issue before me. He contends that interspousal immunity is the primary issue. I agree.

Our Supreme Court on July 10, 1970 decided the case of Immer v. Risko, 56 N.J. 482, 267 A.2d 481 (1970), in which the court abandoned the doctrine of interspousal immunity, holding that it, 'as it applies to automobile negligence cases, has no place in our modern society.' In that case it was not necessary for the court to determine whether the decision should be applied retrospectively or prospectively. By reason of plaintiff's motion, the question is now before me. If Immer is to be applied retrospectively, the counterclaim should be allowed; if prospectively, denied. Accordingly, it is necessary to go beyond Immer to resolve the issue before me.

The Supreme Court announced its opinion on July 10, 1970, in France v. A.P.A. Transport Corp., 56 N.J. 500, 267 A.2d 490 (1970). In that case an automobile operated by plaintiff, in which his wife and two children were passengers, and a truck owned by defendant were involved in a collision on October 16, 1967. Plaintiff's wife was killed in the accident. Plaintiff brought two actions: one for himself and his two children, the second under the Executors and Administrators Act, and the Wrongful Death Act. Defendants counterclaimed for contribution against plaintiff, individually, for all sums found due to the estate of his wife under the survival and death actions. The court allowed the counterclaim to stand and by way of explanation said:

The present suit involves the validity of both interspousal and parent-child tort immunity. Because of our decision in Immer v. Risko, 56 N.J. 482, 267 A.2d 481 (1970), decided today, it is unnecessary to discuss interspousal immunity further. If there were no minor children involved in this case, defendants would be entitled, under Immer, to assert their counterclaim for contribution against the plaintiff under the Joint Tortfeasors Contribution Law. (at 502, 267 A.2d at 491)

This language infers that the court applied Immer retrospectively in France.

Plaintiff's counsel argues persuasively that certain economic and social considerations, as well as administrative calendar problems, court delay and insurance carrier problems, flow from a decision whether to apply prospectively or retrospectively. As he points out, until January 1, 1968 the standard family automobile policy in New Jersey contained an exclusion substantially as follows This insurance does not apply under:

(g) coverage A, to bodily injury to the insured or any member of the family of the insured residing in the same household as the insured.

He also notes that premium rates for each year were based upon the existing law. Obviously, retrospective application of the doctrine will result in many closed insurance carrier files being reopened. These are all problems the court should consider, and counsel relies in part upon the following language in Goldberg v. Traver, 99 N.J.Super. 103, 238 A.2d 695 (Ch.1968), reversed 52 N.J. 344, 245 A.2d 334 (1968)

In deciding whether to give a new rule retroactive effect, a court to which the issue has been properly presented should first identify the purpose of the new rule, next determine on balance those purposes served by general retroactive application of the new rule, and finally decide whether these purposes will be promoted by retroactive application of the new rule in the particular case before it. (at pp. 109, 110, 238 A.2d at p. 699)

That case, however, involved a problem of liability...