Montells v. Haynes

• Citation: 258 N.J.Super. 563,610 A.2d 898
• Parties: , 65 Fair Empl.Prac.Cas. (BNA) 1265 Jessica MONTELLS, Plaintiff-Appellant, v. Ronald HAYNES, Robert Witty, Vincent Scarda, Robert Sandler, American International Group, Inc., American International Adjustment Company, Inc., XYZ Corporation and John Doe, Defendants-Respondents.
• Decision Date: 31 July 1992
• Court: New Jersey Superior Court – Appellate Division

Page 563

258 N.J.Super. 563

610 A.2d 898, 65 Fair Empl.Prac.Cas. (BNA) 1265

Jessica MONTELLS, Plaintiff-Appellant, v. Ronald HAYNES, Robert Witty, Vincent Scarda, Robert Sandler,

American International Group, Inc., American

International Adjustment Company, Inc.,

XYZ Corporation and John Doe,

Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued June 2, 1992.

Decided July 31, 1992.

Clifford A. Herrington, Jersey City, for plaintiff-appellant (Margulies, Wind, Herrington & Katz, attorneys; Clifford A. Herrington, on the brief).

Robert Drewes, Newark, for defendant-respondent Ronald Haynes (Stryker, Tams & Dill, attorneys); Michael J. Sheehan, admitted pro hac vice, for defendants-respondents Robert Witty, Robert Sandler, American Intern. Group, Inc. and American Intern. Adjustment Co., Inc. (Donington, Leroe, Salmond, Luongo, Ronan, Connell & Stroumtsos, attorneys; Robert Drewes and Michael J. Sheehan, on the joint brief).

Respondent Vincent Scarda did not submit a brief.

Before Judges O'BRIEN, HAVEY and CONLEY.

The opinion of the court was delivered by

O'BRIEN, J.A.D.

Plaintiff appeals from the dismissal of her eight-count complaint alleging various claims arising out of alleged sexual harassment and discrimination in her employment. We affirm.

Plaintiff was employed as a litigation examiner by defendant American International Adjustment Company, Inc. (AIA) from December 1986 until her resignation, which became effective May 13, 1987. She contends she was forced to resign from her position because of sexual harassment by her manager, defendant Ronald Haynes (Haynes) of which the other defendants tacitly approved since they failed to take remedial action despite her complaints.

On May 23, 1989, plaintiff filed an eight-count complaint. In the first count, after identifying all of the defendants and alleging that the actions of Haynes are imputed to them on the basis of respondeat superior, plaintiff alleges she was constructively wrongfully discharged because of the sexually hostile atmosphere created by Haynes. She alleges that Haynes' conduct discriminated against her in violation of the Law Against Discrimination (LAD) ( N.J.S.A. 10:5-1 to 38). After setting forth the factual basis of the sexual harassment, plaintiff alleges that as a result she suffered emotional and mental distress, has been deprived of the opportunity to pursue her normal course of employment and has otherwise been damaged seeking compensatory damages "for pain, suffering and humiliation, punitive damages, attorneys fees, interest and costs."

In the second count, plaintiff alleges a "second and separate cause of action." After repeating the allegations of the first count, she alleges that her employment contract, which was partially oral and partially written, implied a covenant of good faith and fair dealing which was violated and she seeks punitive damages "because the actions taken toward plaintiff were carried out by managerial employees acting in a deliberate, cold, callous and intentional manner in order to injure and damage her." The ad damnum clause again seeks compensatory damages for "pain, suffering and humiliation."

The third count alleges intentional infliction of emotional distress. The fourth count alleges that defendant negligently caused a sexually hostile atmosphere to exist which resulted in her constructive discharge. The fifth count alleges intentional interference with her future economic opportunity and earning capacity, and the sixth count alleges that such interference was negligent. The seventh count alleges that Haynes' conduct constituted negligent assault and battery upon her, and the eighth count alleges that his conduct constituted an intentional assault and battery. The ad damnum clause for each of these counts also seeks damages for "pain, suffering and humiliation." Answers were filed by all defendants except Vincent Scarda, who was not served. The complaint was dismissed as to defendant Maurice R. Greenberg for lack of in personam jurisdiction.

Initially, the trial judge dismissed counts two through eight, concluding they were barred as not having been instituted within two years after the cause of action accrued under N.J.S.A. 2A:14-2. By leave granted, defendants appealed from the denial of their motion to dismiss the first count seeking damages for personal injuries sustained as a result of sexual harassment and discrimination in violation of LAD.

By our decision of April 10, 1991, bearing docket number A-4474-89T5F/A4475-89T5F, we remanded the matter to the trial judge for reconsideration of his decision denying the motion to dismiss the first count. In that opinion we did not address the dismissal of counts two through eight as untimely under the two-year statute of limitations applicable to personal injury claims, since plaintiff had not cross-appealed from that determination and the issue was not before us. On remand, the trial judge concluded that the two-year statute of limitations also applied to plaintiff's LAD claim in the first count, which he dismissed by order of July 11, 1991. Plaintiff now appeals from the dismissal of her entire complaint.

The trial judge made a finding that plaintiff's cause of action arose no later than May 13, 1987. Although she had tendered her resignation as of the end of April 1987 and apparently did not come to work after May 6, 1987, she was paid and considered an employee through May 13, 1987. Thus, her complaint filed on May 23, 1989 was filed more than two years after the cause of action for personal injuries accrued.

Plaintiff apparently concedes that some of her claims come within the limitation of N.J.S.A. 2A:14-2 as claims for personal injuries. However, she asserts that in her complaint she alleges breach of contract, tortious interference with contract and prospective economic advantage, which she alleges are covered by the six-year statute, N.J.S.A. 2A:14-1. We disagree. These claims are based on the direct conduct of defendants and the injuries she alleges she suffered are personal in nature. The two-year statute of limitations applies where the gravamen of plaintiff's complaint is injury to the person. See Burns v. Bethlehem Steel Co., 20 N.J. 37, 118 A.2d 544 (1955) where the Court stated:

Appellant concedes that the action is one for personal injuries, but argues that since his cause of action is predicated upon a breach of the terms of the contract, the applicable statute is N.J.S. 2A:14-1 which fixes the period of limitation as six years. Where the damages sought are for injuries to the person, the applicable statute is R.S. 2:24-2 ( N.J.S.A. 2A:14-2) which fixes the period of two years, irrespective of the form of the action. [Id. at 39-40, 118 A.2d 544]

See also Rothman v. Silber, 83 N.J.Super. 192, 197, 199 A.2d 86 (Law Div.1964) (the law in New Jersey is that the two-year statute applies to personal injuries, regardless of whether they arise out of tort or breach of contract), and Heavner v. Uniroyal, Inc., 118 N.J.Super. 116, 286 A.2d 718 (1972), aff'd 63 N.J. 130, 305 A.2d 412 (1973) (despite contractual theory for breach of implied warranty of merchantability, two-year limitation period applied where purchaser of product suffered personal injuries alleged as a result of the breach).

It is clear that in this case all of the injuries plaintiff alleges she suffered are personal injuries, even though the cause of action may have in part arisen out of contract or unlawful interference with a contract or prospective economic advantage. We conclude that the dismissal of counts two through eight as being untimely under N.J.S.A. 2A:14-2 was proper.

We next address plaintiff's contentions with respect to count one alleging her LAD claim. Once more the ad damnum clause seeks compensatory damages for "pain, suffering and humiliation." She alleges she sustained emotional and mental distress and has been deprived of the opportunity to pursue her normal course of employment.

Initially, it is clear that plaintiff does not seek to recover for economic loss by reason of the constructive termination of her employment. As noted, plaintiff's position with AIA ended on May 13, 1987. At that time, her salary was $27,500. Five days later, she began working as a claims representative for CNA at a starting salary of $30,000, and when she left that company she was earning $34,500. In October of the year in which she was deposed, she was working as a claims supervisor for U.S. Aviation Underwriters at an annual salary of $45,000. In her complaint plaintiff made no claim for economic loss as a result of the constructive termination of her employment with defendant AIA for obvious reasons. Rather, her claim once more is for personal injuries arising out of the sexual harassment and sexual discrimination under LAD. Thus, we conclude that plaintiff's claim for damages for personal injuries sustained as a consequence of defendant's violation of LAD is governed by the two-year statute of limitations for personal injuries under N.J.S.A. 2A:14-2. We reject plaintiff's claim that her cause of action under this count is governed by the six-year statute, N.J.S.A. 2A:14-1, as arising out of the employment contract.

Plaintiff relies upon a Law Division decision in Leese v. Doe, 182 N.J.Super. 318, 440 A.2d 1166 (Law Div.1981), where the court ruled that plaintiff's claim was governed by N.J.S.A. 2A:14-1. In reaching his decision in that case, the trial judge relied upon Davis v. United States Steel Supply, 581 F.2d 335 (3rd Cir.1978), cert. denied, 460 U.S. 1014, 103 S.Ct. 1256, 75 L.Ed.2d 484 (1983) which had applied a six-year statute to a Title VII claim pursuant to 42 U.S.C.A. § 1981. However, subsequent to the Law Division decision in Leese v. Doe, the Davis ruling was overruled by the Supreme Court in Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987), where the Court concluded that...