March 2004, No.3

March 2004, Vol.II, No. 3

Does the Threshold in the Tort Claims Act Apply to §1983 Claims, PART DEUX? It depends on the facts. Last month, we reported that the threshold in the Tort Claims Act applies to such cases. See Leopardi v. Township of Maple Shade, 363 N.J. Super. 313 (App. Div. 2003). However, in Taglieri v. Moss, 2004 N.J. Super. LEXIS 89 (Feb. 26, 2004), the Appellate Division stated that the threshold does not apply in cases where a public employee's conduct constitutes willful misconduct, a crime, actual fraud, or actual malice. See N.J.S.A. 59:3-14. Moreover, in Delacruz v. Borough of Hillsdale, 365 NJ Super 127 (App. Div. 2004), the Appellate Division stated that the threshold does not apply to cases where a public employee is liable for false arrest or false imprisonment. See N.J.S.A. 59:3-3. Thus, depending on the nature of the §1983 claim, the threshold may not apply. Check the statute for the liability/non-exoneration clauses to determine the applicability of the threshold. As for the notice provisions of the Tort Claims Act, an argument can be made that they do not apply to cases where there is a non-exoneration clause, but the safer tactic is to provide the notice of claim. See generally Bonitsis v. Jersey Inst. of Tech., 363 N.J. Super. 505 (App. Div. 2003).

Does a Plaintiff with a Displaced Fracture from a Car Accident Have to Prove a Serious Impact on Life? No. In Villanueva v. Lesack, 2004 N.J. Super. LEXIS 74 (Feb. 18, 2004), the Appellate Division distinguished a displaced fracture from a type 6 injury, and stated that a displaced fracture is inherently serious and does not require a showing of permanence or serious impact on life. (One would think, no?). The Appellate Division explained that this case is not inconsistent with 354 N.J. Super. 586 (App. Div. 2002), which held that plaintiffs with Type 6 injuries, i.e., "permanent" injury cases, must demonstrate that their injuries have had a serious impact on their lives. As you probably remember, we reported last year that a certification is required for injuries other than a type 6. See Thomasson v. McQuown, 358 N.J. Super. 64 (Law Div. 2003). Villanueva seems to obviate the need for certifications except for type 6 injuries – what's the point of the certification if you do not need to prove permanent injury or serious impact?

Does the Offer of Judgment Rule Apply to UIM and UM Cases? Yes, as it should. The Appellate Division recently explained that the Offer of Judgment Rule, R. 4:58-2, is not limited to tort actions, and therefore, if an insured (who made the offer) receives a jury verdict 20% greater than the offer of judgment, the UIM or UM carrier must pay reasonable fees, reasonable expenses, and interest. See McMahon v. New Jersey Mnfs. Ins., Co., 364 N.J. Super. 188 (App. Div. 2003). Here, the plaintiff obtained a jury verdict in excess of the insurer's policy limits, but the panel explained that those limits did not preclude the plaintiff from recovering the reasonable legal fees, reasonable costs, and interest in excess of the policy limits. The panel concluded that "the consequences of non-acceptance of a plaintiff's offer under R. 4:58-2 are mandatory." Good decision, good result, and good reasoning.

Is the Disciplinary Review Process Limited to an Attorney's Admissions in a Criminal Case? No. In certain circumstances, a hearing is required in order to impose the appropriate level of discipline because the plea admissions will not provide sufficient information to render a decision. See In re Gallo, 178 N.J. 115 (2003). The Supreme Court explained that if the individual was not charged criminally, the DRB and OAE would conduct a full investigation, and thus, no support exists to justify limiting the investigation when a person pleads guilty. Gallo pled guilty to four acts of criminal sexual contact against former clients and a pro se adversary, but no detail about the contacts were provided at the plea hearing. Thus, the Supreme Court remanded the case to the DRB to conduct a hearing to ascertain the veracity of the victims' claims and respondents' answers.

Do unto others as you would have them do to you. This quotation should guide all of us in our practices. Unnecessary adversarial actions can often be replaced by professional and collegial solutions.

Contributions. If you have an interesting case, rule interpretation, ethics issue, or civil-related story, please contact me at 201-918-3560, (f) (201) 845-5973, or e-mail mjepstein@epsteinbeirne.com.

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