Hoelz v. Bowers
| Decision Date | 20 June 2022 |
| Docket Number | DOCKET NO. A-1534-21 |
| Parties | Faye HOELZ, Plaintiff, v. Andrea Legath BOWERS, M.D., FAAOS, and/or Burlington County Orthopaedic Specialists, PA, Defendants/Third-Party Plaintiffs-Respondents, v. Lutheran Crossings Enhanced Living, Third-Party Defendant, and Walter Cominsky, D.O., Third-Party Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Mark A. Petraske argued the cause for appellant (Dughi, Hewit & Domalewski, Cranford, attorneys; Mark A. Petraske, Princeton, of counsel and on the briefs; Ryan A. Notarangelo, on the briefs).
Michael A. Pattanite, Jr., argued the cause for respondents (Lenox, Socey, Formidoni, Giordano, Lang, Carrigg & Casey, LLC, Lawrenceville, attorneys; Michael A. Pattanite, Jr., Lawrenceville, on the brief).
Before Judges Messano, Rose, and Enright.
The opinion of the court was delivered by
MESSANO, P.J.A.D.
Prior to the 1952 enactment of the Joint Tortfeasors Contribution Law (the JTCL), N.J.S.A. 2A:53A-1 to -5, the common law of New Jersey "permitted a plaintiff to place the entire burden of fault on one defendant, who was then helpless to shift any of the responsibility to any other joint defendants." Tino v. Stout, 49 N.J. 289, 298 n.3, 229 A.2d 793 (1967) ; see also Town of Kearny v. Brandt, 214 N.J. 76, 97, 67 A.3d 601 (2013) (). "Once enacted, the JTCL apportioned any damage award on a pro rata basis among adjudicated tortfeasors." Glassman v. Friedel, 465 N.J. Super. 436, 446–47, 243 A.3d 1268 (App. Div. 2020) (citing Blazovic v. Andrich, 124 N.J. 90, 103, 590 A.2d 222 (1991) ), aff'd as mod., 249 N.J. 199, 265 A.3d 84 (2021).
The JTCL gave tortfeasors the right of contribution from fellow joint tortfeasors. N.J.S.A. 2A:53A-2. Under the JTCL, "if one of several joint tortfeasors paid the injured person more than his or her pro rata share of a judgment, that tortfeasor would be entitled to recover the excess from the remaining tortfeasors." Young v. Latta, 123 N.J. 584, 589, 589 A.2d 1020 (1991) (citing N.J.S.A. 2A:53A-3 ); see also Glassman, 249 N.J. at 217, 265 A.3d 84 .
"[T]he right of contribution is purely statutory," New Milford Bd. of Educ. v. Juliano, 219 N.J. Super. 182, 185, 530 A.2d 43 (App. Div. 1987), and that right is implemented by N.J.S.A. 2A:53A-3 (Section 3), which provides:
By its express terms, the JTCL contemplates a joint tortfeasor may recover contribution from another joint tortfeasor only if (1) there was a "money judgment" in favor of the plaintiff, and (2) the initial tortfeasor paid more than his "pro rata share" of that judgment. Ibid.
In this appeal, we consider again whether a settling tortfeasor may pursue a contribution claim against an alleged joint tortfeasor if the settlement with the plaintiff was never reduced to judgment.
On March 28, 2014, while a patient at Virtua Health/Memorial Hospital of Burlington County (Virtua), plaintiff Faye Hoelz was diagnosed with a right ankle fracture
and a left "lateral malleolus fracture." Defendant third-party plaintiff Dr. Andrea Bowers, an orthopedic physician employed by Burlington County Orthopedic Specialists, PA (BCOS), ordered short leg casts be placed on both of Hoelz's ankles. Days later, Hoelz was discharged from Virtua and admitted to a rehabilitation facility, third-party defendant Lutheran Crossings Enhanced Living (LCEL), where Bowers continued to treat her.
Third-party defendant Dr. Walter Comiskey, an internist, also treated Hoelz while she was at LCEL, where she remained until May 7, 2014, when she was re-admitted to Virtua suffering from bilateral gangrenous foot wounds. As a result of those wounds, Hoelz ultimately suffered a "significant amputation of the left leg" and underwent "surgery to her right foot for anatomical correction."
On March 16, 2016, Hoelz filed a complaint against Bowers, BCOS and fictitious defendants alleging medical negligence; Bowers and BCOS (collectively, Bowers) filed a third-party complaint against Comiskey, LCEL and fictitious third-party defendants alleging their negligence was "a cause" of Hoelz's injuries, pain, and suffering. Bowers demanded contribution and indemnification from Comiskey and LCEL.
Hoelz never amended her complaint to include Comiskey or LCEL as defendants, nor did she ever file a direct claim against either.1 Discovery ensued, and the case was first listed for trial on April 22, 2019, but it did not proceed on that date.
In December 2019, the executor of Hoelz's estate reached a settlement with Bowers.2 The estate received $600,000 and executed a release "giv[ing] up any and all rights and claims" it had against Bowers, BCOS, and their insurer. The release contained a non-disclosure provision prohibiting the estate from disclosing its terms. Pursuant to a stipulation of dismissal with prejudice filed December 16, 2019, the estate dismissed the complaint against Bowers.
Trial in the third-party action was scheduled for March 16, 2020, but it was adjourned several times due to the COVID-19 pandemic and for other reasons. In June 2021, Bowers reached a settlement with LCEL, the terms of which are not disclosed in the record. Trial on the third-party complaint against Comiskey was scheduled for September 13, 2021.
Both parties filed in limine motions, which were scheduled to be heard on the trial date. But, as counsel for Comiskey later certified, in "prepar[ing] for the impending trial date," he realized the "lack of an entered judgment as a requirement for [Bowers] to state a claim was ... an issue" under the JTCL. On September 9, 2021, Comiskey filed another motion in limine seeking to dismiss the third-party complaint for failure to state a claim, asserting that pursuant to Section 3, only payment of a judgment, not payment pursuant to a settlement agreement, gives rise to a claim for contribution from a joint tortfeasor.
The trial date was again adjourned for medical reasons, allowing counsel to withdraw Comiskey's motion in limine and refile the motion as a formal motion to dismiss under Rule 4:6-2(e). By the time Bowers filed opposition, the court had set a trial date of January 24, 2022.
Although there are some disputed facts in the certifications filed by counsel, it is undisputed that Bowers settled the case without direct judicial involvement and without express notice to Comiskey, although Comiskey's counsel was "aware of the attempts and anticipation of the resolution of the first party complaint," "participated in conferences with the [c]ourt where the resolution was discussed before the first party complaint resolved," and subsequently became aware of the settlement and its amount. The judge handling the case at the time clearly indicated at conferences, without objection from Comiskey's counsel, that the third-party complaint would proceed after any settlement if one was reached.
On January 5, 2022, a different judge heard oral argument on Comiskey's motion to dismiss and immediately thereafter rendered an oral opinion denying the motion. After we granted Comiskey's motion for leave to appeal, the judge filed a written amplification of reasons for denying the motion to dismiss pursuant to Rule 2:5-1(b).
The judge reasoned Comiskey's motion should be treated as one seeking summary judgment because it relied on matters outside the pleadings. He determined the motion violated Rule 4:46-1, which requires motions for summary judgment be "returnable no later than [thirty] days before the scheduled trial date, unless the court otherwise orders for good cause shown." Relying on Cho v. Trinitas Regional Medical Center, 443 N.J. Super. 461, 475, 129 A.3d 350 (App. Div. 2015), the judge held that "absent extraordinary circumstances or the opposing party's consent, the consideration of an untimely summary judgment motion at trial and resulting dismissal of a complaint deprives a plaintiff of due process of law."
Although trial was scheduled for January 24, 2022, more than thirty days after Comiskey filed his motion to dismiss, the judge held this time frame was not dispositive, because it was the "eighth trial date scheduled." The judge concluded Comiskey failed to demonstrate good cause for failing to bring the motion immediately after Hoelz and Bowers reached their settlement in December 2019.
The judge also held that Section 3, requiring payment of a "judgment" before a joint tortfeasor was entitled to contribution from another joint tortfeasor, "was for purposes of notice." He reasoned not only did Comiskey have notice of the settlement terms, but the medical malpractice reporting requirements of N.J.A.C. 11:1-7.3 "provide[d] more public information than any requirement of [a] docketed consent...
To continue reading
Request your trial