Debra Warren v. Christopher P. Muenzen

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1949-15T4
DEBRA WARREN, Executrix
of the ESTATE OF ROBERT
WARREN and DEBRA WARREN, APPROVED FOR PUBLICATION
Individually,
December 7, 2016
Plaintiffs-Respondents, APPELLATE DIVISION
v.
CHRISTOPHER P. MUENZEN, M.D.,
CHARLES CAREY, P.A., and
CHRISTOPHER P. MUENZEN, M.D.,
P.A.,
Defendants-Appellants.
________________________________________________
Argued October 6, 2016 – Decided December 7, 2016
Before Judges Messano, Guadagno and Suter.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County, Docket
No. L-0207-13.
William L. Brennan argued the cause for
appellants (The Law Office of William L.
Brennan, attorneys; Mr. Brennan, of counsel
and on the briefs; John Kilbride and Abbey
True Harris, on the briefs).
John J. Ratkowitz argued the cause for
respondents (Starr, Gern, Davison & Rubin,
P.C., attorneys; Mr. Ratkowitz, of counsel
and on the briefs; Robert C. Sanfilippo, on
the briefs).
Andres & Berger, P.C., attorneys for amicus
curiae New Jersey Association for Justice
(Kenneth G. Andres, Jr., of counsel and on
the brief; Tommie Ann Gibney and Abraham
Tran, on the brief).
Drinker Biddle & Reath, L.L.P., attorneys
for amicus curiae New Jersey Hospital
Association (Ross A. Lewin, of counsel and
on the brief; James C. Jones, on the brief).
Hill Wallack, L.L.P., attorneys for amicus
curiae Property Casualty Insurers
Association of America (Todd J. Leon, of
counsel and on the brief; James Harry
Oliverio, on the brief).
The opinion of the court was delivered by
MESSANO, P.J.A.D.
By leave granted, defendants Christopher P. Muenzen, M.D.,
and Christopher P. Muenzen, M.D., PA (collectively, defendant),
appeal from the Law Division's December 1, 2015 order denying
partial summary judgment based on the statute of limitations
(SOL) applicable to the New Jersey Survivor Act (the Survivor
Act), N.J.S.A. 2A:15-3.1 For purposes of our review, we consider
the motion record in a light most favorable to plaintiff, Debra
Warren, who brought suit individually and as executrix of the
estate of her late husband, Robert Warren. Steinberg v. Sahara
Sam's Oasis, LLC, 226 N.J. 344, 366 (2016); R. 4:46-2(c).
1
Defendant Charles Carey, P.A. (Carey), was granted summary
judgment for reasons unrelated to the issues raised on appeal,
but was named as a moving party when defendant sought leave to
appeal. Plaintiff has not cross-appealed as to Carey.
2 A-1949-15T4
In 2007, complaining of migraine headaches, Robert was seen
by defendant, his personal physician.2 As part of the
examination, blood samples were taken and sent for testing.
Robert's PSA3 level was 15.4, significantly higher than normal,
and recognized by defendant in his deposition as indicative of
prostate cancer. It is disputed whether defendant conveyed the
significance of the reading to Robert at this time.
In September 2009, Robert's complaints of groin pain caused
another visit to defendant. At this point, Robert's PSA reading
was 1244.88. Following further examination in October,
defendant diagnosed Robert with prostate cancer, which was later
confirmed by biopsy. Over the ensuing two years, despite
chemotherapy and other treatment, the cancer progressed and
metastasized to Robert's brain and spine. He died on September
27, 2011, as a result of complications from the cancer.
Plaintiff filed suit on January 18, 2013, alleging
defendant was medically negligent. In counts one and two,
plaintiff sought pecuniary damages on behalf of her husband's
estate pursuant to the Wrongful Death Act, N.J.S.A. 2A:31-1 to -
6 (the WDA). In count three, plaintiff sought damages for
2
To avoid confusion, we may use plaintiff's decedent's first
name. We intend no disrespect by this informality.
3
PSA stands for Prostate-Specific Antigen.
3 A-1949-15T4
Robert's pain, suffering, medical expenses and lost earnings
while alive, and, in count four, she sought damages for her loss
of consortium during her husband's life. Finally, in count
five, plaintiff sought damages for the severe emotional distress
she suffered from witnessing the effects of her husband's
illness. Portee v. Jaffee, 84 N.J. 88 (1980). In addition to
his general denial, defendant affirmatively pled the SOL as a
defense.
Defendant subsequently moved for summary judgment, arguing
that counts three, four and five were barred by the two-year SOL
applicable to medical malpractice claims. See N.J.S.A. 2A:14-
2(a) (requiring a claim for personal injury to be brought within
two years of accrual).4 After considering oral argument, the
judge granted the motion as to count five but denied the motion
as to counts three and four, explaining his reasoning in a
written opinion we discuss more fully below.
4
For purposes of the motion and this appeal, defendant
acknowledges applicability of the discovery rule. See, e.g.,
Guichardo v. Rubinfeld, 177 N.J. 45, 51 (2003) ("Although the
discovery rule does not require 'knowledge of a specific basis
for legal liability or a provable cause of action,' it does
require 'knowledge not only of the injury but also that another
is at fault.'") (quoting Martinez v. Cooper Hosp.-Univ. Med.
Ctr., 163 N.J. 45, 52 (2000)). Plaintiff's cause of action,
therefore, did not accrue until September or October 2009.
4 A-1949-15T4
We granted defendant's motion for leave to appeal. 5
Additionally, we permitted amici New Jersey Association for
Justice, New Jersey Hospital Association (NJHA) and Property
Casualty Insurers Association of America to file briefs.
I.
We set forth the legal framework. Although actions under
the WDA and the Survivor Act "arise from the identical
occurrence, i.e., the death of the plaintiff, they serve
different purposes and are designed to provide a remedy to
different parties." Smith v. Whitaker, 160 N.J. 221, 231 (1999)
(citing Soden v. Trenton & Mercer Cty. Traction Co., 101 N.J.L.
393, 398-99 (E. & A. 1925)). "[T]he [WDA] provides to
decedent's heirs a right of recovery for pecuniary damages for
their direct losses as a result of their relative's death due to
the tortious conduct of another." Aronberg v. Tolbert, 207 N.J.
587, 593 (2011). Any recovery passes directly to the decedent's
heirs, not through his or her estate. Ibid. (citing Alfone v.
Sarno, 87 N.J. 99, 107-08 (1981); see also N.J.S.A. 2A:31-4).
"Unlike a wrongful death action, which is a derivative
action arising in favor of beneficiaries named under that act,
the Survivor[] Act preserves to the decedent's estate any
5
Plaintiff has not cross-appealed from the dismissal of count
five of the complaint.
5 A-1949-15T4
personal cause of action that decedent would have had if he or
she had survived." Smith, supra, 160 N.J. at 233 (internal
citation omitted). "The survival action merely 'perpetuat[es]
the right of action which the deceased himself would have had,
to redress his own injuries, but for his death.'" Alfone, supra,
87 N.J. at 108 (alteration in original) (emphasis added)
(quoting 2 F. Harper & F. James, The Law of Torts § 24.2 at 1287
(1956)). As in this case, the two distinct claims are
frequently pled together in one action, and the WDA claim is
cognizable even when the Survivor Act claim is barred by the
SOL. Gershon, Adm'x Ad Prosequendum for Estate of Pietroluongo
v. Regency Diving Ctr., 368 N.J. Super. 237, 245-246 (App. Div.
2004) (citing Miller v. Estate of Sperling, 166 N.J. 370, 386-87
(2001)).
The WDA has always included a specific SOL. See L. 1848 p.
151, § 2 (providing "every action shall be commenced within
twelve calendar months after the death of such deceased
person"). Currently, the WDA provides:
Every action brought under this chapter
shall be commenced within [two] years after
the death of the decedent, and not
thereafter, provided, however, that if the
death resulted from murder, aggravated
manslaughter or manslaughter for which the
defendant has been convicted, found not
guilty by reason of insanity or adjudicated
delinquent, the action may be brought at any
time.
6 A-1949-15T4
[N.J.S.A. 2A:31-3 (emphasis added).]
The portion we emphasize was the result of an amendment enacted
by the Legislature in 2000. L. 2000, c. 157 (Nov. 17, 2000).
At the time, the Legislature made clear that the bill's purpose
was to "enable the family of a murder victim to sue if at some
time in the future the person who committed the murder acquires
substantial assets." Senate Judiciary Committee, Statement to
S. 1125 (June 22, 2000); see also Assembly Judiciary Committee,
Statement to A. 1934 (June 8, 2000) ("Eliminating the statute of
limitations for these wrongful death suits will preserve the
right of murder and manslaughter victims' families to sue at
some future date.").
Prior to 2010, the Survivor Act contained no explicit SOL.
It provided in full:
Executors and administrators may have an
action for any trespass done to the person
or property, real or personal, of their
testator or intestate against the
trespasser, and recover their damages as
their testator or intestate would have had
if he was living.
In those actions based upon the wrongful
act, neglect, or default of another, where
death resulted from injuries for which the
deceased would have had a cause of action if
he had lived, the executor or administrator
may recover all reasonable funeral and
burial expenses in addition to damages
accrued during the lifetime of the deceased.
7 A-1949-15T4
[N.J.S.A. 2A:15-3 (2009).]
The language of the first paragraph has remained virtually
unchanged from when the statute was first enacted in 1855. See
Canino v. New York News, Inc., 96 N.J. 189, 192 n.1 (1984). The
second paragraph, which spoke specifically to causes of action
"where death resulted from injuries[,]" was not added by the
Legislature until 1969. L. 1969, c. 266 (Jan. 12, 1970).6
In 2009, however, the Legislature added the following
provision to the Survivor Act (the 2009 Amendment):
Every action brought under this chapter
shall be commenced within two years after
the death of the decedent, and not
thereafter, provided, however, that if the
death resulted from murder, aggravated
manslaughter or manslaughter for which the
defendant has been convicted, found not
guilty by reason of insanity or adjudicated
delinquent, the action may be brought at any
time.
[L. 2009, c. 266 (Jan. 17, 2010).]
The intent of the Legislature was quite clear. Recognizing that
the 2000 amendment to the WDA "applied to only one of the two
types of civil actions that may be brought against persons
responsible for a wrongful death[,]" the Legislature intended to
6
The 1969 amendment also added funeral and burial expenses as
cognizable damages due the estate. The Legislature added
similar language to N.J.S.A. 2A:31-5 in 1967. See Schmoll v.
Creecy, 104 N.J. Super. 126, 138-39 (App. Div.), rev'd on other
grounds, 54 N.J. 194 (1969).
8 A-1949-15T4
"address[] the other type of civil action[,]" by "amend[ing] the
'Survivor[] Act' to eliminate the two-year statute of
limitations for cases where the death resulted from murder,
manslaughter or aggravated manslaughter and, thus, conform this
action to the provisions of [the WDA]." Senate Judiciary
Committee, Statement to S. 2763 (May 18, 2009) (emphasis added);
see also Assembly Judiciary Committee, Statement to A. 4158
(Jan. 4, 2010) (noting the bill was intended to "address[] th[e]
oversight" when the WDA was amended in 2000 "by eliminating the
[SOL] for certain actions brought under the 'Survivor[] Act'")
(emphasis added).
II.
A.
The motion judge determined the SOL began to run in October
2009, which was when Robert knew or should have known that
defendant's alleged failure to warn him earlier of the
significance of the elevated PSA reading gave rise to a claim
for medical negligence. As a result, plaintiff's suit should
have been brought by October 2011 at the latest, but it was not
filed until January 2013. Plaintiff argued the plain language
of the Survivor Act meant her claim was timely, because it was
filed within two years of Robert's death. The judge rejected
that contention because accepting plaintiff's literal reading
9 A-1949-15T4
would yield an absurd result — "[c]laimants would be filing
lawsuits years after the cause of action accrued and . . . the
[SOL] would be inutile and . . . incompatible with the
legislative design."
However, also rejecting defendant's contentions, the judge
reasoned:
When one reads the [Survivor Act] as a
whole, it seems clear . . . that what the
[L]egislature intended is that the decedent
must have a cause of action that is not
barred by the statute of limitations when he
dies. If the person dies with a claim not
time-barred, then from the date of death,
the administrator or executor has the
extended two years from the date of death to
file survival actions (it being understood,
however, that the two[-]year limitation does
not apply when the death resulted from
murder, aggravated manslaughter or
manslaughter for which the defendant has
been convicted, found not guilty by reasons
of insanity or adjudicated delinquent).
[(Emphasis in original).]
The judge further stated that "[n]owhere does the statute
require that the administrator or executor must bring suit
within the original [two-]year limitation of time nor is there
case law to support such a position."
The judge concluded Robert had a cognizable cause of action
against defendant for medical negligence that was not time-
barred when Robert died in September 2011. The judge determined
as a result that plaintiff's Survivor Act claims, filed within
10 A-1949-15T4
two years of Robert's death, should not be dismissed. He
entered a conforming order, and we granted defendant's motion
for leave to appeal.
B.
Defendant argues that as a result of the 2009 Amendment,
the Survivor Act is "internally inconsistent" because it limits
the executrix's claims to those a decedent would have had if he
had lived, but permits suit to be filed years thereafter, as
long as a complaint is brought within two years of death.
Defendant asserts the motion judge's interpretation of the
statute fails to avert the absurd and unfair result that claims
could be made by administrators and executors many years after
the alleged tortious act that resulted in damages. Defendant
urges us to consider the legislative history of the 2009
Amendment in order to properly construe the statute and ensure
the Legislature's intent, which he argues was only to permit
Survivor Act claims resulting from criminal homicides to be
brought at any time.
Plaintiff urges us to affirm, continuing to assert, as she
did before the motion judge, that the plain language of the 2009
Amendment demonstrates the Legislature's intent to provide a
two-year SOL to "[e]very action" brought under the Survivor Act.
N.J.S.A. 2A:15-3. She argues that such a construction results
11 A-1949-15T4
in no more absurd a result than occasioned by the WDA's SOL. In
other words, pursuant to the WDA, the Legislature permitted
heirs of a decedent to bring suit for tortious conduct that may
have occurred years earlier, requiring only that the conduct
have caused death and the suit be filed within two years of
death. Amicus New Jersey Association for Justice essentially
echoes plaintiff's arguments.
Amicus Property Casualty Insurers Association of America
reiterate defendant's contentions and further argues that the
2009 Amendment creates uncertainty for both insurers and
insureds as to the coverage provided by their policies.
Finally, the NJHA argues that proper construction of the
Survivor Act requires consideration of not only N.J.S.A. 2A:14-
2, but also N.J.S.A. 2A:14-1, the six-year SOL governing all
claims for damages to real and personal property, and N.J.S.A.
2A:14-23.1, which tolls the operation of all statutes of
limitation for six-months following death.
We have considered these arguments in light of the record
and applicable legal standards. We reverse.
C.
"An appellate court reviews an order granting summary
judgment in accordance with the same standard as the motion
judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (citing W.J.A.
12 A-1949-15T4
v. D.A., 210 N.J. 229, 237-38 (2012); Henry v. N.J. Dep't of
Human Servs., 204 N.J. 320, 330 (2010)). We "identify whether
there are genuine issues of material fact and, if not, whether
the moving party is entitled to summary judgment as a matter of
law." Ibid. (citing Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995); R. 4:46-2(c)). We review the judge's
interpretation of "the law de novo and owe no deference to the
trial court . . . if [it has] wrongly interpreted a statute."
Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).
"The fundamental objective of statutory interpretation is
to identify and promote the Legislature's intent." Parsons v.
Mullica Twp. Bd. of Educ., 226 N.J. 297, 307 (2016) (citing
State v. Gelman, 195 N.J. 475, 482 (2008)) (citing DiProspero v.
Penn, 183 N.J. 477, 492 (2005)). "In construing any statute, we
must give words 'their ordinary meaning and significance,'
recognizing that generally the statutory language is 'the best
indicator of [the Legislature's] intent.'" Tumpson v. Farina,
218 N.J. 450, 467 (2014) (alteration in original) (quoting
DiProspero, supra, 183 N.J. at 492).
"However, not every statute is a model of clarity. When
the statutory language is sufficiently ambiguous that it may be
susceptible to more than one plausible interpretation, we may
turn to such extrinsic guides as legislative history, including
13 A-1949-15T4
sponsor statements and committee reports." Wilson ex rel.
Manzano v. City of Jersey City, 209 N.J. 558, 572 (2012) (citing
Burns v. Belafsky, 166 N.J. 466, 473 (2001)). "We may also turn
to extrinsic guides if a literal reading of the statute would
yield an absurd result, particularly one at odds with the
overall statutory scheme." Ibid. (citing Burnett v. Cty. of
Bergen, 198 N.J. 408, 424-25 (2008); State v. Provenzano, 34
N.J. 318, 322 (1961)).
In this case, plaintiff's contention, premised upon the
literal language of the statute, leads to an absurd result that
ignores the historical purposes of the Survivor Act and existing
precedent. As the Court made clear in Canino, both the WDA,
first adopted in New Jersey in 1848, and the Survivor Act, first
adopted in 1855, were intended to abrogate the common law maxim
that death abated all causes of action. 96 N.J. at 191-92.7
However, "[t]here is an elementary difference between the two
remedies . . . ." Id. at 194.
7
The Court in Canino said the WDA "created a new cause of
action." 96 N.J. at 194 (quoting Alfone, supra, 87 N.J. at 107).
However, in Lafage v. Jani, 166 N.J. 412, 438 (2001), the Court
held that New Jersey recognized a cause of action for wrongful
death at common law. The Court has since reiterated that the
WDA created "a remedy that did not exist at common law." Beim
v. Hulfish, 216 N.J. 484, 498 (2014) (citing Johnson v.
Dobrosky, 187 N.J. 594, 605 (2006) (citing Negron v. Llarena,
156 N.J. 296, 308 (1998)); Alfone, supra, 87 N.J. at 107).
14 A-1949-15T4
One difference is that, unlike the WDA, which recognizes a
cause of action only "[w]hen the death of a person is caused by
a wrongful act, neglect or default," N.J.S.A. 2A:31-1, a claim
brought under the Survivor Act need not be based on tortious
conduct that results in death. For example, pursuant to the
first paragraph of the Survivor Act, an executor or
administrator may bring "an action for any trespass done to the
person or property, real or personal," of the decedent as the
decedent "would have [brought] if he was living." N.J.S.A.
2A:15-3 (emphasis added).
In Canino, supra, 96 N.J. at 198, the Court recognized that
pursuant to N.J.S.A. 2A:15-3, a cause of action for libel or
slander was not abated by the claimant's death and could be
prosecuted by his executrix. Similarly, in Fricke v. Geladaris,
Inc., 221 N.J. Super. 49, 50 (App. Div. 1987), we held that a
malicious prosecution claim did not abate upon death and was
actionable under the Survivor Act.
Under the construction of the Survivor Act urged by
plaintiff, a libel, slander or malicious prosecution that
occurred during the decedent's life would be actionable decades
after the offending conduct, as long as it was filed within two
years of death. Indeed, under plaintiff's interpretation of the
2009 Amendment, an action for personal injury that never
15 A-1949-15T4
resulted in death would be actionable decades later if brought
by a plaintiff's estate within two years of his or her death.
We are certain the Legislature never intended such absurd
results when it amended the statute in 2009.
For a number of reasons, we also disagree with the motion
judge's interpretation of the 2009 Amendment. Initially, the
judge failed to recognize significant precedent to the contrary
when he wrote there was no "case law to support . . .
[defendant's] position" that prior to the 2009 Amendment, the
Survivor Act incorporated the SOL from the underlying cause of
action. In Soden, supra, 101 N.J.L. at 399, the court
specifically recognized the different SOLs in the WDA and the
Survivor Act: "It is significant . . . that the limitation
under the [WDA] runs from the death, while under the [Survivor
Act] the limitation runs from the time of the injury inflicted."
In Kotkin v. Caprio, 65 N.J. Super. 453, 458 (App. Div. 1961),
we said
[u]nder our statutes, when the injured
person dies as a result of the accident
while he still has a cause of action for his
injuries, the cause of action for his
injuries passes to his estate, while a new
and separate cause of action, with its own
statute of limitations, arises in favor of
the beneficiaries named in the [WDA].
[(Emphasis added).]
16 A-1949-15T4
In a case bearing some factual similarities to this, we
held that a medical malpractice claim, filed by a decedent more
than two years after being diagnosed with melanoma and
prosecuted by his executrix after his death, was time-barred by
application of the SOL contained in N.J.S.A. 2A:14-2(a).
Silverman v. Lathrop, 168 N.J. Super. 333, 334-36 (App. Div.
1979); see also Troum v. Newark Beth Israel Med. Ctr., 338 N.J.
Super. 1, 27 (App. Div. 2001) (holding that the plaintiff's
survival action was barred by the SOL where he failed to file a
malpractice claim within two years of knowing a tainted blood
product was administered during surgery); Lawlor v. Cloverleaf
Mem'l Park, Inc., 101 N.J. Super. 134, 148 (Law Div. 1968)
("[U]nder the Survival Act, an action must be commenced by the
decedent, or his estate, within two years of the alleged
wrongful act."), rev'd on other grounds, 106 N.J. Super. 374
(App. Div. 1969), rev'd on other grounds, 56 N.J. 326 (1970).
In Miller, supra, 166 N.J. at 372, the plaintiff brought a
malpractice suit under the WDA against the doctor who had
treated his wife more than a decade earlier. The Court
recognized that at the time of her death, plaintiff's wife's
malpractice suit would have been time-barred because the two-
year SOL in N.J.S.A. 2A:14-2(a) had long expired. Id. at 373-
74. In reversing the grant of summary judgment on the
17 A-1949-15T4
plaintiff's WDA claim, the court held that "a wrongful death
claim is an independent cause of action that cannot be
extinguished by the failure of a decedent to maintain a medical
malpractice action within the applicable limitations period . .
. ." Id. at 372. In short, prior to the 2009 Amendment, our
case law made clear that the SOL applicable to a particular
cause of action was equally applicable to a Survivor Act claim
maintained after death.
We acknowledge that the motion judge thoughtfully struggled
to give import to all the language contained in the 2009
Amendment. See, e.g., DKM Residential Props. Corp. v. Twp. of
Montgomery, 182 N.J. 296, 307 (2005) ("When interpreting a
statute . . . we endeavor to give meaning to all words . . . .")
(citing Franklin Tower One L.L.C. v. N.M., 157 N.J. 602, 613
(1999)). He reasoned plaintiff had a potential cause of action
under N.J.S.A. 2A:15-3 if, at the time of his death, Robert had
a cause of action "if he had lived." The judge further reasoned
that the 2009 Amendment defined a new SOL, i.e., plaintiff had
two years after Robert's death to bring suit. This construction
avoided the absurd result plaintiff urged since every claim
brought under the Survivor Act could not be maintained unless
two conditions were met: decedent must have possessed a viable
claim at the time of death and suit was brought within two years
18 A-1949-15T4
of death. However, the judge's construction nullifies existing
SOLs found elsewhere in our statutes, ignores prior legislation
intended to address the impact of death upon existing SOLs and
greatly expands the Legislature's express, limited purpose for
enacting the 2009 Amendment.
Amicus NJHA notes that, in certain cases, the judge's
construction of the 2009 Amendment has the unintended
consequence of nullifying SOLs contained in N.J.S.A. 2A:14-1 and
2A:14-2. We agree.
For example, N.J.S.A. 2A:14-1 provides in pertinent part:
Every action at law for trespass to real
property, for any tortious injury to real or
personal property, for taking, detaining, or
converting personal property, for replevin
of goods or chattels, [or] for any tortious
injury to the rights of another not stated
in [N.J.S.A.] 2A:14-2 and 2A:14-3 . . .
shall be commenced within 6 years next after
the cause of any such action shall have
accrued.
This SOL applies to numerous causes of action that are, per
force, actionable under the Survivor Act, because they seek
damages for a "trespass done to the person or property, real or
personal . . . ." N.J.S.A. 2A:15-3. For example, if a
decedent's property was flooded by his neighbor's diversion of
storm water, pursuant to N.J.S.A. 2A:14-1, his estate would be
required to file suit for trespass within six years of the
event. However, under the motion judge's construction of the
19 A-1949-15T4
2009 Amendment, if the decedent died one day before the six-year
statue expired, his estate could file suit any time within the
next two years, thereby effectively expanding the SOL to eight-
years minus one day.
Similarly, the SOL in personal injury actions would be
extended in circumstances where the tortious conduct did not
result in death. By way of example, assume the decedent is
significantly injured in an automobile accident, but lives for
one year and 363 days before dying from an unrelated heart
attack. Under the judge's construction of the 2009 Amendment,
plaintiff's executor could file suit for the injuries sustained
by plaintiff in the car accident nearly four years after the
event, even though N.J.S.A. 2A:14-2(a) requires suit to be filed
within two years.
Finally, under N.J.S.A. 2A:14-3, every action for libel or
slander must be commenced within one year of publication of the
libel or slander. As already noted, the Court in Canino
recognized the estate's right to pursue a survival action for
libel or slander. Under the reasoning employed by the motion
judge, if a plaintiff died within one year of the libelous
20 A-1949-15T4
publication, his estate would have two more years to bring the
action.8
In short, the motion judge's construction of the 2009
Amendment effectively extends the SOL applicable to numerous
causes of action, not themselves dependent on death, based
solely upon the happenstance of death within the limitations
period. Such an interpretation does not serve the well-
recognized purposes of every SOL, namely "to reduce uncertainty
concerning the timeliness of a cause of action[,]" McGrogan v.
Till, 167 N.J. 414, 426 (2001), and "eliminat[e] stale claims
and creat[e] repose." Sasco 1997 Ni L.L.C. v. Zudkewich, 166
N.J. 579, 591 (2001). Nothing in the legislative history of the
2009 Amendment suggests the Legislature intended that result.
Additionally, the judge failed to consider N.J.S.A. 2A:14-
23.1. That statute, enacted in 1977, specifically extends for
six months after death the applicable SOL for any "cause of
action belonging to a decedent which had not been barred as of
the date of his death," and for any "cause of action which . . .
would have been barred less than [six] months after death."
8
The Court recently rejected an invitation to extend the one-
year SOL applicable to defamation actions on equitable grounds
and left any amendment to the Legislature. Nuwave Inv. Corp. v.
Hyman Beck & Co., 221 N.J. 495, 500-01 (2015). It is
inconceivable that the 2009 Amendment intended to essentially
triple the SOL period in defamation claims.
21 A-1949-15T4
Ibid. The legislation was intended to adopt a provision of the
Uniform Probate Code that had been approved by the National
Conference of Commissioners on Uniform State Laws and the
American Bar Association, Introductory Statement to A. 1709,
210th Leg. (Feb. 4, 2002), and serves the salutary purpose of
providing executors and administrators with a limited period of
time after death to evaluate potential claims available to the
estate.
The motion judge's interpretation of the 2009 Amendment
would implicitly repeal N.J.S.A. 2A:14-23.1 with respect to
every cause of action cognizable under the Survivor Act. There
is nothing in the legislative history of the 2009 Amendment that
indicates the Legislature intended this result. See Brewer v.
Porch, 53 N.J. 167, 173 (1969) (noting that implied repealers
are not favored in the law). Instead of having six months after
death to commence a suit based on a cause of action the decedent
possessed at death, the executor would now have two years after
the date of death to commence the action.
As noted above, the legislative purpose for enacting the
2009 Amendment was not to establish a new two-year SOL that
commenced upon death for all claims brought under the Survivor
Act. Rather, the Legislature's stated purpose was only to
eliminate any SOL that already existed for a Survivor Act claim
22 A-1949-15T4
in certain, limited situations, i.e., those "cases where the
death resulted from murder, manslaughter or aggravated
manslaughter." Statement to S. 2763, supra; see also Statement
to A. 4158, supra, (the amendment was intended to "eliminate[e]
the [SOL] for certain actions brought under the 'Survivor[]
Act'") (emphasis added).
Lastly, we recognize a generally accepted canon of
statutory interpretation: "In interpreting a statute courts
should avoid a construction that would render 'any word in the
statute to be inoperative, superfluous or meaningless, or to
mean something other than its ordinary meaning.'" Bergen
Commer. Bank v. Sisler, 157 N.J. 188, 204 (1999) (quoting In re
Estate of Post, 282 N.J. Super. 59, 72 (App. Div. 1995)). Our
interpretation of the 2009 Amendment renders its first phrase —
"[e]very action brought under this chapter shall be commenced
within two years after the death of the decedent, and not
thereafter" — superfluous. N.J.S.A. 2A:15-3. However, we are
firmly convinced this case presents a classic example where
"[t]he spirit of the legislative direction prevails over the
literal sense of the terms." Perrelli v. Pastorelle, 206 N.J.
193, 208 (2011) (quoting New Capitol Bar & Grill Corp. v. Div.
of Emp't Sec., 25 N.J. 155, 160 (1957)).
23 A-1949-15T4
For the foregoing reasons, we reverse the order under
review and remand the matter to the Law Division to enter an
order dismissing counts three and four of the complaint with
prejudice because they are time-barred.
Reversed and remanded. We do not retain jurisdiction.
24 A-1949-15T4