New Jersey State Bar Association - The voluntary Bar Association of New Jersey, serving members since 1899.

Capitol Report

September 14, 2009

By Tamika Wilson

This edition of the Capitol Report highlights some of the high-priority bills of continued interest to the state bar. It is compiled by the government affairs department of the New Jersey State Bar Association.

NJSBA-Drafted Legislation

ADVERSE POSSESSION STATUTE REVISIONS

A- 2054 (Wisniewski) (NJSBA supports) Shortens time periods for adverse possession, clarifies statutes, and repeals N.J.S. 2A:14-30 and N.J.S. 2A:14-31.

Background: New Jersey's adverse possession law allows an adverse possessor to acquire title to land after 30 years uninterrupted possession of the property or 60 years in the case of woodlands or uncultivated land. However, New Jersey has a 20-year statute of limitations applicable to actions concerning real property, such as an action to recover possession of property by a record owner. This conflict between the 20-year statute of limitations and the 30 years of possession required for title to vest through adverse possession has resulted in conflict and confusion.

Through case precedent, state courts have allowed title to vest after 20 years of adverse possession. More recently, the New Jersey Supreme Court, in J&M Land Company v. First Union National Bank, held that an adverse possessor does not acquire title after 20 years, although an adverse possessor may defeat an action by a record owner to recover possession.

The NJSBA has drafted A-2054 (Wisniewski), which eliminates this longstanding confusion in the law by clarifying that title in land vests after 20 years of adverse possession in most cases, and 30 years for woodlands and uncultivated land.

The purpose of A-2054 is to encourage the productive and diligent use of land in New Jersey, prevent barren wasteland, ensure the New Jersey adverse possession statute is in compliance with other states' adverse possession laws, and promote appropriate title transfer.

A-2054 corrects several problems with the current New Jersey adverse possession statute:

  • Repeals N.J.S.A. 2A:14-30 and -31; which currently states a possessor is vested with title to real estate after 30 years' actual possession of the real estate, unless the property consists of woodlands or uncultivated tracts and title vests to the possessor of woodlands or uncultivated tracts after 60 years' possession.
  • Amends N.J.S.A. 2A:14-7 to provide that title may be acquired by the adverse possessor after 20 years in most cases, and to provide that title may be acquired by the adverse possessor after 30 years in the case of woodlands or uncultivated lands.
  • Amends N.J.S.A. 2A:14-8 to make the text consistent with the proposed changes to N.J.S.A. 2A:14-6 and -7.
  • Amends N.J.S.A. 2A:14-8 to add a new section, 8(b), clarifying the bar against enforcement of rights by the state against real estate, including lands that were formerly tide flowed, after 20 years.

Status: A-2054 passed in the Assembly (63-15-1) and was referred to the Senate Community and Urban Affairs Committee on June 25, 2009.

PROFESSIONAL MALPRACTICE REFORM

S-1815 /A-2858 (Lesniak/Cryan) (NJSBA supports) Requires legal action against certain licensed persons to be brought within two years.

Background: This bill amends N.J.S.A. 2A:14-1 to reduce the current six-year limitations period to two years for actions against certain licensed professionals that are subject to the requirements of N.J.S.A. 2A:53A-27. New Jersey's statute of limitations would continue to be subject to the discovery rule. The rule would continue to apply to those cases in which injury or wrong is not readily ascertainable through reasonable diligence (Vastano v. Algeier, 178 N.J. 230, 236 (2003). The bill also prohibits the award of attorney fees in any action subject to the requirements of N.J.S.A. 2A:53A-27, unless they are authorized by statute or court rule.

This bill also reverses Saffer v. Willoughby, 143 N.J. 256 (1996), which allows as permissible consequential damages the recovery of attorneys' fees incurred in the prosecution of an attorney malpractice case. Generally, an award of attorney's fees is only permitted under limited circumstances set forth in Rule 4:42-9. Under the American Rule, parties to litigation each bear their own costs. However, the New Jersey Supreme Court, in Saffer, created an exception to the American Rule. Thus, attorneys appear to be the only professional group subject to paying attorneys' fees to a prevailing party in a malpractice case. These fees may surpass the underlying damage claim. This bill addresses the disparity.

Status: S-1815 was introduced and referred to the Senate Commerce Committee on May 15, 2008. A-2858 was released by the Assembly Regulated Professions and Independent Authorities Committee and referred to the Assembly Judiciary Committee on Oct. 23, 2008.

Pending Legislation

AUTO NEGLIGENCE

S-117/A-217 (Diegnan/Bramnick ) (NJSBA supports) Provides that the limitation on lawsuit option does not apply in an accident caused by a drunk driver.

Background: The New Jersey No Fault Act provides that the owner or operator of an automobile shall be exempt from tort liability for noneconomic damages (pain and suffering) for personal injuries sustained by a person who has elected the limitation on lawsuit option (the verbal threshold), unless the injuries meet one of the six types set forth in the statute (including fractures and permanent injuries). N.J.S.A. 39:6A-8. In addition, any person who is convicted of or pleads guilty to driving while intoxicated shall have no cause of action for recovery of economic or noneconomic damages. N.J.S.A. 39:6A-4.5 (b).

Thus, the No Fault Act provides several defenses that limit or bar the damages an accident victim can recover from a tortfeasor. However, in Woodworth v. Joyce, 373 N.J. Super. 113 (App. Div. 2004), the court held that the same restrictions do not apply to a defendant. Thus, a defendant who is convicted of or pleads guilty to driving while intoxicated (DWI) is still entitled to assert the defense of the verbal threshold.

The purpose of this bill is to reverse the effect of Woodworth v. Joyce, and to provide that a person who is convicted of or pleads guilty to operating a motor vehicle while intoxicated shall not be permitted to raise the verbal threshold as a defense.

The state of New Jersey has a strong public policy against persons who drive while intoxicated. As a result, drunk drivers lose all rights to sue for economic or noneconomic damages if they are injured in an automobile accident. It is equally important that drunk drivers suffer the consequences of their actions when they are defendants in a lawsuit, and not benefit from the protection offered by the No Fault Act. Thus, defendants who are convicted of or plead guilty to DWI should not be entitled to raise the verbal threshold as a defense.

Status: S-117 and A-217 were introduced on Jan. 8, 2008, and referred to the Senate Commerce Committee and the Assembly Financial Institutions and Insurance Committee.

PALIMONY

S-2091/A-3833 (Scutari/Carroll) (NJSBA opposes) Prohibits the enforcement of palimony agreements unless such agreements are in writing.

Background: This bill seeks to address a problem that does not exist, and will impose conditions that will disproportionately prejudice women, particularly lower income women. Many relationships that give rise to palimony claims may be economically coercive from the beginning, where a woman may be in a relationship with a wealthier man, perhaps a married man. As a result of this legislation, a man can simply refuse to enter into an agreement, leaving the woman with a choice of concluding the relationship or exiting to substantially reduced economic circumstances. In the case of lower income women, the law may be misunderstood, or perhaps unknown, and they certainly will not have the ability to hire counsel.

By entering into relationships with men who make express or implied promises, many women forego other opportunities related to work, education, or perhaps marriage. If the relationship falls apart, and the promises disappear, where do these women turn for support? In the case of lower income women, the answer is that they will look to the state for financial support, hardly an outcome anyone welcomes.

Attempting to legislate the paths relationships take, and the equitable resolution of disputes once those relationships sour, will undoubtedly lead to bad results. Unless the Legislature can point to solid evidence that palimony cases are a significant social problem, or are burdening the courts, there is no reason to step into matters the courts have historically handled on a case-by-case basis.

We would urge the Legislature to take a more studied approach to the issue, and craft a comprehensive palimony statute that not only sets reasonable criteria for when palimony is available, but also ensures palimony recipients are not treated more favorably than alimony recipients.

Status: S-2091 passed in the Senate (21-14) on March 16, 2009. A-3833 was introduced and referred to the Assembly Judiciary Committee on March 9, 2009.

WRONGFUL DEATH

A-1158 (Oliver) (NJSBA supports) Expands the Wrongful Death Act to allow recovery for mental anguish, emotional pain and suffering, loss of society and loss of companionship.

Background: Under current law, litigants in wrongful death actions may recover for pecuniary loss only, not for emotional pain and suffering caused by the decedent's wrongful death. Accordingly, children and the elderly who may be without incomes, in effect, have no pecuniary value. The measure of a just society should recognize the full extent of loss in cases of wrongful death, and therefore allow remedy for loss of emotional pain and suffering. New Jersey remains in the minority of states to limit recovery in this way.

This legislation seeks to rectify this problem, and move New Jersey toward the majority of jurisdictions in the United States that more equitably compensate victims of wrongful death victims by statute or case law.

Status: A-1158 was introduced and referred to the Assembly Judiciary Committee on Jan. 8, 2008.