The Last Half of February in the Appellate Division

This follows up on yesterday’s post about the second half of February in the Supreme Court. Here are summaries of some of the Appellate Division’s published opinions issued in the second half of February:

In re Protest of Contract for Retail Pharmacy Design, 474 N.J. Super. 630 (App. Div. 2023). Judge Gilson’s opinion in this case opened with a concise description of the issue: “The novel question presented is whether University Hospital is a state administrative agency whose final decisions are directly appealable to this court under Rule 2:2-3(a)(2).” The context was a bidding process by the hospital for the design, construction, and operation of a pharmacy at the hospital. A disappointed bidder protested, and when its protest failed, the bidder filed a notice of appeal to the Appellate Division. Judge Gilson offered a number of reasons why “the plain language used by the Legislature in establishing University Hospital does not indicate that the Legislature intended University Hospital to be a state administrative agency.” Since there was no right to appeal directly to the Appellate Division, the panel dismissed the appeal, but without prejudice to the filing of a case in the Law Division. The opinion is an excellent resource for future cases regarding Rule 2:2-3(a)(2), whose background Judge Gilson discussed in detail.

Adams v. Yang, 475 N.J. Super. 1 (App. Div. 2023). In Glassman v. Friedel, 249 N.J. 199 (2021), the Supreme Court held that a plaintiff was precluded by judicial estoppel from disavowing the negligence of an initial tortfeasor after settlement in a later case against a successive tortfeasor. Defendants in Adams v. Yang argued that the Glassman ruling should be extended from its context of successive tortfeasors to cases involving a settling joint tortfeasor. The Law Division did not agree and, on appeal, neither did the Appellate Division, which applied de novo review. Judge Mitterhoff wrote the panel’s opinion, which noted (among other things) that Glassman itself “specifically recognized that the apportionment process it had established for successive tortfeasors ‘is more complex than the familiar procedure conducted in joint-tortfeasor cases involving settling defendants.'” Judge MItterhoff also provided a lengthy discussion of judicial estoppel that will be useful in other cases involving that principle.

C.W. v. Roselle Bd. of Educ., 474 N.J. Super. 644 (App. Div. 2023). This was a case involving the alleged sexual abuse of a student by a teacher. The issue was whether plaintiff was barred from seeking pain and suffering damages under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. (“TCA”), because he had not incurred the amount of medical expenses required by the TCA. The Law Division granted summary judgment barring his claim for pain and suffering damages. On appeal, the Appellate Division affirmed in an opinion by Judge Currier that applied de novo review. The panel held that plaintiff’s expert report did not furnish a sufficient basis to conclude that plaintiff had incurred or would incur the level of medical expenses required. Moreover, though plaintiff argued that amendments to the TCA embodied in the Child Victims Act, L. 2019, c. 120 (“CVA”), intended that child abuse victims did not need to meet the medical expense threshold, Judge Currier found no basis for that. In enacting the CVA ,”[t]he Legislature did not eliminate or amend the medical expense threshold provision. The medical threshold requirement, a non-immunity provision, remained intact…. Although the CVA intended to expand a sexual abuse victim’s available remedies in court, the Legislature did not eliminate the medical threshold required under the TCA for a child sexual abuse case.” The CVA ruling is likely why this opinion was designated for publication as precedential authority.

Memudu v. Gonzalez, 475 N.J. Super. 15 (App. Div. 2023). Plaintiff’s decedent was involved in an auto accident. About thirty minutes later, as the decedent was trying to receive his cellphone from his disabled vehicle, his car was hit by another vehicle and he was killed. This opinion by Judge Marczyk centered on whether the decedent had been “operating” a motor vehicle when he went to retrieve his phone. That was important because the decedent’s vehicle was uninsured, and N.J.S.A. 39:6A-4.5(a) provides that “[a]ny person who, at the time of an automobile accident resulting in injuries to that person, is required but fails to maintain medical expense benefits coverage . . . shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of an accident while operating an uninsured automobile.” The Law Division denied a defense motion for summary judgment, holding that the decedent had not been “operating” the automobile. The Appellate Division applied de novo review to this purely legal issue and affirmed. The “decedent’s vehicle was inoperable prior to the second and fatal accident,” and there was “no evidence in the record decedent was operating or had any intent to operate the disabled vehicle at that juncture. In short, the language in the statute is clear and unambiguous, and we conclude decedent was not operating his vehicle for the purposes of N.J.S.A. 39:6A-4.5(a) when he was killed.” The defense relied on Perrelli v. Pastorelle, 206 N.J. 193 (2011), but Judge Marczyk rightly found that decision inapplicable to “the specific and unique facts in this case.”