Ginamarie Gomes v. the County of Monmouth and Correct

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1679-14T4
GINAMARIE GOMES,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
April 14, 2016
v.
APPELLATE DIVISION
THE COUNTY OF MONMOUTH, a body
politic of the State of New Jersey,
and CORRECT CARE SOLUTIONS, LLC,
Defendants-Respondents.
______________________________________
Submitted February 22, 2016 – Decided April 14, 2016
Before Judges Sabatino, Accurso and Suter.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Docket No. L-2096-14.
Law Offices of Herbert I. Ellis, P.C.,
attorneys for appellant (Mr. Ellis and Amy
B. Francesco, on the brief).
Marks, O'Neill, O'Brien, Doherty & Kelly,
P.C., attorneys for respondents (Melissa J.
Brown and Sean X. Kelly, on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
This appeal raises in part the novel issue of whether a
plaintiff, who was treated by a private medical provider under
contract to provide care to inmates at a county jail, must serve
that private entity with a tort claims notice before she can sue
the company for negligence. We hold that the Tort Claims Act
(the "TCA" or the "Act"), N.J.S.A. 59:1-1 to :14-4, does not
require service of such a notice upon a private government
contractor. Consequently, we reverse the trial court's
dismissal of plaintiff's claims against the contractor for
failure to serve it with a notice.
In the unpublished portion of this opinion, we affirm the
trial court's dismissal of plaintiff's intentional tort claims
against co-defendant County of Monmouth. We vacate the court's
dismissal of the other remaining claims as premature, and remand
for discovery and other further proceedings.
I.
The record in its present incomplete state reflects the
following pertinent facts and allegations. The case arises out
of plaintiff GinaMarie Gomes's brief incarceration at the
Monmouth County Correctional Institution (the "MCCI" or the
"County jail"), where defendants allegedly denied plaintiff
access to her prescribed antibiotic medication. The MCCI is a
unit within defendant County of Monmouth, a public entity. Co-
defendant Correct Care Solutions, Inc. ("CCS") is a private
company. During the relevant time period, CCS provided medical
2 A-1679-14T4
services to inmates housed at the MCCI pursuant to a contract
with the County.1
On June 2, 2012, plaintiff reported to the MCCI because of
an acknowledged parole violation. As part of the intake process
that day, the medical staff conducted an initial screening in
which plaintiff disclosed her medical history. A mental health
screening was also conducted, which found nothing of particular
relevance.
According to the screening forms, plaintiff alerted the
medical staff that she suffered from asthma, heroin withdrawal,
kidney disease, hepatitis C, and several other medical issues.
She reported that she had seen a physician within the preceding
two weeks regarding "kidney issues." Plaintiff also reported
that she had been prescribed a variety of medications, including
Cipro, a broad-spectrum antibiotic, and an asthma inhaler. All
of the medical staff at the jail who performed these intake
services allegedly were employees of CCS.
According to plaintiff, Cipro had been prescribed by her
physician and filled at a pharmacy prior to her admission at the
MCCI to address a "severe infectious condition." For reasons
that remain unclear, the antibiotic was confiscated from
plaintiff during the intake process. The screening records
1
The parties have not furnished us with a copy of the contract.
3 A-1679-14T4
indicate that medical staff ordered a new five-day dosage of
Cipro, but that prescription apparently was cancelled pending
blood work and the jail's receipt of plaintiff's prior medical
records. Plaintiff contends that she never received a dosage of
Cipro, or any other antibiotic, during her time at the MCCI.
Over the course of the next twenty-three days, plaintiff
repeatedly complained of a sore throat, coughing, and other
ailments. She also began complaining of lower back pain and
decreased mobility. Plaintiff was seen by CCS medical personnel
on twenty-seven occasions during this time, and she was
prescribed various palliative medications. Nearly all of the
documents and records relating to plaintiff's care at the MCCI
bear the CCS company name and logo.
By June 25, 2012, plaintiff's back pain and mobility issues
had become so acute that she was transferred to a local
hospital. Further medical investigation revealed that she was
suffering from a "large epidural abscess with cord compression,"
a diagnosis which plaintiff alleges has left her permanently
paralyzed and incontinent. She further alleges that the
condition could have been prevented had the medical staff at the
jail provided her with the Cipro that she was originally
prescribed and had brought with her to the facility.
4 A-1679-14T4
Through her counsel, plaintiff initially served a notice of
tort claim upon the County, the MCCI, and the State Attorney
General's Office on August 24, 2012. Plaintiff's counsel
received a written response dated December 26, 2012 from PMA
Companies ("PMA"), the third-party administrator for the County,
acknowledging receipt of the notice. The response further
stated in relevant part:
We have reported the claim as well to
Correct Care Solutions, of Memphis,
Tennessee. This is the private contractor
which provides the medical staff at Monmouth
County Correctional Institution. Their
insurance carrier is Allied Insurance, and I
have been advised a claim has been reported
to this company.
Plaintiff's counsel separately received a letter from the Office
of the Attorney General2 informing her that MCCI was a "local
public entity" and that the claim, therefore, did not involve
the State.
Plaintiff thereafter filed a six-count complaint in the Law
Division against the County, CCS, and various fictitious
parties. The complaint asserts various claims of negligence,
intentional tort, and breach of contract. Each count is
premised on a theory that defendants negligently or
2
After this appeal was briefed, we invited the Attorney General
to participate as an amicus or intervenor to address the
statutory issues raised here under the Tort Claims Act. The
Attorney General declined our invitation.
5 A-1679-14T4
intentionally confiscated and withheld plaintiff's prescribed
medication, causing her personal harm. Although plaintiff does
not explicitly style any of her claims as claims for medical
negligence or medical malpractice, she alleges in count four
several related theories of liability, including negligent
observation; inadequate medical testing procedures; inadequate
documentation and record keeping; negligent hiring of medical
staff; and failure to "adhere to the Internal Management
Procedures for Medication Administration as mandated and
required by, for and of the New Jersey Department of Corrections
Internal Management Procedures[.]"
The co-defendants, the County and CCS, each moved to
dismiss the complaint in lieu of an answer. The primary
arguments advanced by defendants in favor of dismissal were
that: (1) plaintiff failed to serve a notice of tort claim upon
CCS; (2) plaintiff failed to state a prima facie claim of
negligence or intentional tortious conduct against either
defendant; and (3) plaintiff is not an intended beneficiary of
the contract between the County and CCS and therefore lacks
standing to complain about any breaches of that agreement.
After hearing oral argument, the motion judge dismissed the
complaint with prejudice as to both defendants. In his written
statement of reasons, the judge ruled that plaintiff's lawsuit
6 A-1679-14T4
against CCS was barred under the TCA because she had not served
a tort claims notice upon the contractor within the ninety-day
period set forth in N.J.S.A. 59:8-8.
The judge determined that CCS, as the provider of medical
care to inmates at a county jail, is a "public entity" within
the meaning of the statute. In making this finding, the judge
substantially relied upon this court's opinion in Hoag v. Brown,
397 N.J. Super. 34, 47-48, 53 (App. Div. 2007), which treated an
employee of a private contractor that provided medical services
to a State prison as an employee of the State for purposes of
her claim that she had been harassed in her workplace in
violation of the Law Against Discrimination ("LAD"), N.J.S.A.
10:5-1 to -42. The judge also noted unpublished opinions of
this court and the trial court likewise treating employees of a
private contractor to a State prison to be the functional
equivalent of public employees working for the prison.3
The judge reasoned that because the medical staff that
allegedly acted negligently here worked at the jail and could be
3
We do not cite the unpublished opinions, as they are non-
precedential. R. 1:36-3. That said, we recognize that the
notice issue presented here has not been the subject of a
reported case, and that there appear to be several unreported
opinions that have addressed the issue. We by no means fault
the trial judge for considering the unpublished cases, as he is
permitted to do under Rule 1:36-3, in his conscientious effort
to grapple with this issue without the guidance of precedent.
7 A-1679-14T4
considered the functional equivalent of public employees for
certain purposes as in Hoag, their employer CCS should be
treated as a public entity that must be served with a tort
claims notice. Since no such timely notice was served upon CCS,
the judge dismissed plaintiff's tort-based claims against that
co-defendant. The judge rejected plaintiff's argument that her
service of notice upon the County sufficed as notice to CCS
under the circumstances. The judge also rejected plaintiff's
claims against CCS founded upon her theory that she was an
intended third-party beneficiary of the contract between CCS and
the County.
The judge then dismissed all of plaintiff's claims against
the County. He rejected, as a matter of law, plaintiff's claims
of intentional tort against the County as a public entity
because N.J.S.A. 59:2-10 directs that public entities are not
vicariously liable for acts or omissions of public employees
constituting a "crime, actual fraud, actual malice, or willful
misconduct." The judge also found non-viable plaintiff's
negligence claims against the County because she had not alleged
that any County employees had been involved in her medical
screening or her medical care. In addition, the judge dismissed
plaintiff's contract-based claims against the County,
essentially for the same reasons that the judge had noted in
8 A-1679-14T4
dismissing the contract claims against CCS. Lastly, the judge
dismissed plaintiff's claims for punitive damages.
II.
On appeal, plaintiff contends that the dismissal of her
complaint against both defendants was legally erroneous and
premature. She also asserts various criticisms of the manner in
which the trial judge proceeded to rule on her claims,
complaining about the judge's citation to unpublished authority.
In considering these arguments, we adhere to the well-
established principle that before a court dismisses a civil
complaint with prejudice, it must "search[] the complaint in
depth and with liberality to ascertain whether the fundament of
a cause of action may be gleaned even from an obscure statement
of claim, opportunity being given to amend if necessary."
Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739,
746 (1989) (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43
N.J. Super. 244, 252 (App. Div. 1957)).
Nevertheless, a purely legal question of whether a
defendant is insulated from liability because of an immunity or
some other statutory provision ideally should be resolved, if
possible, at an early stage of the litigation. See Rivera v.
Gerner, 89 N.J. 526, 536 (1982) (noting that resolving issues
involving the TCA through the pretrial process "is to be
9 A-1679-14T4
encouraged"); Hurwitz v. AHS Hosp. Corp., 438 N.J. Super. 269,
305-06 (App. Div. 2014) (observing in a statutory immunities
case that issues involving those immunities should be
adjudicated at an "early stage of litigation," and that an
"unfettered right to discovery" would "dilut[e] the practical
benefit of the immunity protection"). Indeed, in keeping with
the need for expedition, interlocutory appeals from orders
granting or denying leave to file a late tort claims notice are
now immediately appealable under the Rules of Court as of right.
R. 2:2-3(a)(3). Our review of such legal determinations by a
trial court is de novo. Wilson ex rel. Manzano v. City of
Jersey City, 209 N.J. 558, 564 (2012).
A.
The novel and important issue that most warrants our
attention here is whether plaintiff was obligated to serve a
separate tort claims notice upon co-defendant CCS, a private
contractor to the County. We hold that there is no such
obligation, either in the language of the Tort Claims Act or one
logically compelled by the policies underlying the statutory
scheme.
The TCA indisputably governs causes of action in tort
against governmental agencies within New Jersey. Velez v. City
of Jersey City, 180 N.J. 284, 289-90 (2004). The Legislature
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enacted the Act in recognition of "the inherently unfair and
inequitable results which occur in the strict application of the
traditional doctrine of sovereign immunity," while still
recognizing that government — which cannot abstain from its
obligation to govern in the way a private actor can choose not
to engage in certain conduct — "should not have the duty to do
everything that might be done." N.J.S.A. 59:1-2; Lopez v. City
of Elizabeth, 245 N.J. Super. 153, 164 (App. Div. 1991).
Generally, a defendant organization falls within the
purview of the TCA if it is considered a "public entity," as
that term is defined in N.J.S.A. 59:1-3. See S.E.W. Friel Co.
v. N.J. Turnpike Auth., 73 N.J. 107, 113-17 (1977). Section 1-3
of the Act denotes a "public entity" to include "the State, and
any county, municipality, district, public authority, public
agency, and any other political subdivision or public body in
the State." N.J.S.A. 59:1-3. The Attorney General's 1972 Task
Force Comment to N.J.S.A. 59:1-3 clarifies that the TCA's
definition of "public entity" is intended to encompass "all
entities exercising governmental functions." Margolis & Novack,
Claims Against Public Entities, 1972 Task Force Comment on
N.J.S.A. 59:1-3 (2016).
The TCA likewise defines the related concept of a "public
employee." According to N.J.S.A. 59:1-3, a "public employee" is
11 A-1679-14T4
simply "an employee of a public entity[.]" The term "employee"
means "an officer, employee, or servant, whether or not
compensated or part-time, who is authorized to perform any act
or service; provided, however, that the term does not include an
independent contractor." Ibid. (emphasis added).
When an injured party wishes to pursue a claim against a
public entity or a public employee, that party must first file a
notice of claim with the public entity involved. Because
plaintiff's alleged mistreatment occurred at a County jail, the
notice provision concerning local governmental entities
pertains. See N.J.S.A. 59:8-7 ("A claim for injury . . .
arising under this act against a local public entity shall be
filed with that entity.") (emphasis added); N.J.S.A. 59:8-2
("'[L]ocal public entity' means a public entity other than the
State."). This notice must be filed "within 90 days of accrual
of the claim," subject to potential extension by the court which
is not implicated by the present appeal. N.J.S.A. 59:8-8. If
the claimant fails to do so, the statute dictates that he or she
"shall be forever barred from recovering against a public entity
or public employee[.]" Ibid.
Functionally, this notice requirement within the TCA is
largely intended to "compel a claimant to expose his intention
and information early in the process in order to permit the
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public entity to undertake an investigation while witnesses are
available and the facts are fresh." O'Neill v. City of Newark,
304 N.J. Super. 543, 549 (App. Div. 1997) (emphasis added)
(quoting Lutz v. Twp. of Gloucester, 153 N.J. Super. 461, 466
(App. Div. 1977)).
As our Supreme Court explained in Beauchamp v. Avedio, 164
N.J. 111 (2000), the recognized goals of the TCA's notice
provision are:
(1) to allow the public entity at least six
months for administrative review with the
opportunity to settle meritorious claims
prior to the bringing of suit; (2) to
provide the public entity with prompt
notification of a claim in order to
adequately investigate the facts and prepare
a defense[;] (3) to afford the public entity
a chance to correct the conditions or
practices which gave rise to the claim; and
(4) to inform the State [or local public
entity] in advance as to the indebtedness or
liability that it may be expected to meet.
[Id. at 121-22 (first alteration in
original) (emphasis added) (internal
quotations and citations omitted).]
The first two goals are derived from the Task Force Comment to
N.J.S.A. 59:8-3, and the last two goals come from Fuller v.
Rutgers, 154 N.J. Super. 420, 426 (App. Div. 1977), certif.
denied, 75 N.J. 610 (1978). See Margolis & Novack, supra,
comment on N.J.S.A. 59:8-8, at p. 266 (2016).
13 A-1679-14T4
The contents of a proper notice of claim under the TCA are
governed by N.J.S.A. 59:8-4, which specifies the following
minimum information that a claimant's notice must contain:
A claim shall be presented by the claimant
. . . and shall include:
a. The name and post[-]office
address of the claimant;
b. The post-office address to
which the person presenting the
claim desires notice to be sent;
c. The date, place and other
circumstances of the occurrence or
transaction which gave rise to the
claim asserted;
d. A general description of the
injury, damage, or loss incurred
so far as it may be known at the
time of presentation of the claim;
e. The name or names of the public
entity, employee or employees
causing the injury, damage or
loss, if known; and
f. The amount claimed as of the
date of presentation of the claim,
including the estimated amount of
any prospective injury, damage, or
loss, insofar as it may be known
at the time of the presentation of
the claim, together with the basis
of computation of the amount
claimed.
[(Emphasis added).]
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Under N.J.S.A. 59:8-6, a public entity may, "by rule or
regulation," adopt its own standardized form that requests
information beyond the minimum level of detail enumerated in
N.J.S.A. 59:8-4.
By way of illustration, pursuant to N.J.S.A. 59:8-4 and -6,
the State has issued its own standard tort claims notice form.
That form asks the claimant to identify the State "agency"
allegedly responsible for the claimant's injury. There is no
place on the State form for the claimant to identify a private
actor or entity as a responsible party.4 In fact, case law
instructs that a claimant's failure to use the public entity's
prescribed form supplying the necessary information can at times
support a finding that the entity failed to receive timely and
proper notice under N.J.S.A. 59:8-4 and -6. See Wood v. Cty. of
Burlington, 302 N.J. Super. 371, 378 (App. Div. 1997) (ruling
that plaintiffs were required to use the defendant township's
"specialized notice of claim form").
Likewise, although the County of Monmouth does not
apparently post a standard tort claims notice form on the
4
See Initial Notice of Claim for Damages Against the State of
New Jersey, Dep't of the Treasury, Bureau of Risk Mgmt.,
http://www.nj.gov/treasury/riskmgt/pdf/ClaimLongForm.pdf (last
visited Mar. 31, 2016) (asking the claimant to identify the
"state agency or agencies" that caused the damages and the
"names of State employees whom you claim were at fault").
15 A-1679-14T4
Internet, a number of other local governments do.5 None of those
standard notice forms that our research has uncovered ask the
claimant to identify any private actors or entities. Instead,
the forms simply ask the claimant to indicate the governmental
agencies involved.
Here, presumably because a standardized form from the
County was not readily available, the notice served on the
County by plaintiff was a typed letter prepared by her counsel.
The letter addressed the six items required for proper notice
under N.J.S.A. 59:8-4.
To require claimants such as plaintiff in this case to
serve a pre-suit tort claims notice upon a defendant government
contractor would clash with both the text of the TCA and the
5
See, e.g., Notice of Tort Claim Against Gloucester County, New
Jersey and/or Its Entities, Gloucester Cty., http://www.
gloucestercountynj.gov/civica/filebank/blobdload.asp?BlobID=4215
(last visited Mar. 31, 2016) (asking the claimant to identify
"each and every Department, Division, Agency or Authority" and
"each and every County employee" the claimant contends is
liable); Notice of Claim for Damages Against the County of
Passaic, Passaic Cty., http://www.passaiccountynj.org/Document
Center/View/108 (last visited Mar. 31, 2016) (requesting
claimants to specify the "names of County Employees whom you
claim were at fault" and "the negligence or wrongful act of the
County Agency and County employees which caused your damages");
Tort Claim for Damages Against the City of Trenton, City of
Trenton, http://www.trentonnj.org/FCpdf/notice%20of%20tort%
20claim.pdf (last visited Mar. 31, 2016) (requesting the "name
and address of the City Department, Division or Agency that you
claim caused [the claimant's] damage/injury" and "the names of
the City employees whom you claim were at fault").
16 A-1679-14T4
objectives of the statute's notice provision. A private
enterprise like CCS is not a "county, municipality, district,
public authority, public agency, [or] any other political
subdivision or public body in the State." N.J.S.A. 59:1-3.
Instead, it is a private independent contractor, whose workers
are specifically carved out of Section 1-3's definition of a
public employee.
To be sure, as the private contractor hired by Monmouth
County to provide medical services based at the County jail, CCS
apparently performs certain functions that the County otherwise
would have had to perform itself. We agree with defendants that
the provision of such medical services to County inmates – had
they been performed by the County's own workers – would comprise
a governmental function. Under the contractual agreement with
CCS, the County has apparently delegated at least some of those
functions to CCS. That delegation does not, however,
automatically convert CCS into a "public entity" for all
purposes under the TCA.
We recognize that, in appropriate circumstances, private
contractors retained by State and local governments to perform
some of their functions may be protected by the TCA's immunities
and special defenses under the concept of "derivative immunity."
See, e.g., Rodriguez v. N.J. Sports & Exposition Auth., 193 N.J.
17 A-1679-14T4
Super. 39, 44-46 (App. Div. 1983) (finding that a private
security company that provided security and guards for a public
entity was entitled to derivative immunity, noting that a
contractor could still be liable for negligence "in the
execution of the contract"), certif. denied, 96 N.J. 291 (1984);
Cobb v. Waddington, 154 N.J. Super. 11, 18 (App. Div. 1977)
(finding that a construction company hired by the State to
perform roadwork and install barriers to divert traffic was
entitled to derivative immunity), certif. denied, 76 N.J. 235
(1978).
We do not resolve on this limited record whether CCS, in
fact, is entitled to such second-hand "derivative" substantive
immunity, particularly since the record lacks evidence of the
actual contract between the County and CCS, and where discovery
on this pivotal subject has yet to be conducted. As an
analytical point, however, we note that there would be no need
for courts to recognize the concept of derivative immunity if
private contractors hired by government agencies were per se
regarded for all purposes under the TCA as "public entities."
We need not decide comprehensively in this appeal what
portions of the TCA afford protection to private contractors
such as CCS, and which portions do not. The narrow issue posed
before us is simply whether the notice provisions under N.J.S.A.
18 A-1679-14T4
59:8-8 and :8-9 require courts to treat such contractors as
public entities that must be served with tort claims notices as
a precondition to them being sued. The answer is no.
None of the four goals of the notice provision, as
identified by the Supreme Court in Beauchamp, support construing
N.J.S.A. 59:8-8 to require service of a notice upon a private
entity that serves as a government contractor. Each of those
enumerated purposes involves providing the government with a
timely opportunity to consider and react to an incident that the
claimant is contending to be a negligent failure by government
to discharge its functions properly. It is of no concern to CCS
whether plaintiff has given the County enough time to: (1)
administratively review and possibly settle a meritorious claim;
(2) adequately investigate the matter and prepare the
government's defense; (3) correct the conditions or practices
relating to the governmental function that gave rise to the
claim; or (4) apprise the government of its potential
indebtedness as a matter of fiscal planning. See Beauchamp,
supra, 164 N.J. at 121-22.
We recognize that a private contractor might similarly want
to have such claim-related information provided to it, at a pre-
suit stage, for its own business or risk management reasons.
But the central objectives of the TCA's notice provision are
19 A-1679-14T4
solely related to the benefit of governmental decision-makers
and, ultimately, the taxpayers who might bear the costs of a
successful claim. It is revealing that the tort claims notice
forms that have been created by the State and other public
entities are designed to require claimants to specify which
governmental agency or agencies that he or she alleges was
responsible for causing the injury.
When plaintiff duly served her notice upon the County, she
was specifically apprised that the medical staff who dealt with
her at the jail were employees of CCS, a private entity, whose
insurance carrier was identified in the County's response.
Plaintiff should not have been required to assume that she was
supposed to provide any more notice of the incident than what
she had already supplied to the County. The Legislature has not
directed that duplicative notices be served upon private
contractors or their insurers. Of course, the Legislature is
free to amend the statute to so require, but that is not how the
law is presently worded or structured.
The trial judge's reliance on Hoag, supra, 397 N.J. Super.
at 53-54, in reaching his contrary conclusion on the notice
issue was misplaced. There was no issue of notice involved in
Hoag. That case instead turned on whether an employee of a
private contractor, who had been working at a State prison and
20 A-1679-14T4
allegedly mistreated by a State employee supervising her, should
be regarded as a public employee for purposes of the State's
anti-discrimination laws and the TCA.
Hoag specifically involved whether the worker's
relationship with the State Department of Corrections was
fundamentally one of an employer and employee for purposes of
liability under the LAD. This court found that the State in
those circumstances potentially could be regarded as the
plaintiff's "employer," given the allegations of its close
involvement in the conditions of her workplace, and thereby
could be responsible for perpetuating a hostile work
environment. Id. at 47-53. Even so, because the record in Hoag
was not fully developed as to those issues, we remanded the
matter for further factual development. Id. at 53.
We do not endorse the trial judge's overbroad reading of
Hoag with respect to the TCA notice issues presented here.
Unlike the plaintiff in Hoag, plaintiff Gomes was not employed
in a government facility. She was only housed there as an
inmate less than a month, before her medical condition became so
severe that she had to be transferred to the hospital. The
scope of Gomes's statutory obligation to provide notice of her
tort claims is fundamentally different in character than the
question of whether, by comparison, Ms. Hoag's substantive
21 A-1679-14T4
rights to a discrimination-free workplace were infringed by the
State when it was acting as her employer. For these many
reasons, the analysis in Hoag is inapposite to the notice
question posed here under N.J.S.A. 59:8-8.
We therefore reverse the trial judge's dismissal of CCS for
lack of service of a timely notice under N.J.S.A. 59:8-8. We
accordingly reinstate CCS as a co-defendant in the case, and
remand for further proceedings.
B.
[At the discretion of the court, the
published version of this opinion omits Part
II(B), which addresses issues unrelated to
the notice issue.]
Affirmed in part, reversed in part, and remanded in part.
We do not retain jurisdiction.
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