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

Capitol Report

April 12, 2010

This is a status report on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers. The report may also include information about appearances of NJSBA representatives before legislative committees, and the involvement of the NJSBA as amicus in appellate court matters. It is compiled by the government affairs department of the New Jersey State Bar Association. Following each bill number is the sponsor's name, the NJSBA position, if any, bill description and status. Full and previous versions of the Capitol Report, with links to related text, are available online at www.njsba.com.

NJSBA ACTION IN TRENTON

Since March 23, the Senate and Assembly have been conducting hearings on the FY2011 State Budget. The NJSBA continues to meet with legislators and communicate our positions on priority legislation during the budget recess including the following:

NJSBA-Drafted Bills

Professional Malpractice

S-477/A-570 (Lesniak/Cryan) (NJSBA supports) amends N.J.S.A. 2A:14-1 to reduce the current six-year statute of limitations period to two years for actions against certain licensed professionals which 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, which 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 2A:53A-27, unless they are authorized by statute or court rule. New Jersey's statute of limitations is substantially greater than those in New York, Connecticut, Pennsylvania, and Delaware. The current statute of limitations in N.J.S.A. 2A:14-1 applies to most professional malpractice and professional negligence claims with the notable exception of claims for medical malpractice. There is a two year statute of limitations for medical malpractice claims which is set forth in N.J.S.A. 2A:14-2. A reduction in the statute of limitations period will provide businesses offering professional services the ability to predict with greater certainty potential liabilities and to plan for such liabilities.

Bill Status: On Jan. 12, the bills were introduced and referred to the Senate Commerce Committee and the Assembly Regulated Professions Committee respectively.

Professional Service Corporations

S-914 (Gill) (NJSBA supports) allows professional corporations to use or register an alternate name and allows use of certain abbreviations in certain business names. This bill corrects the erroneous interpretation of the last sentence of N.J.S. 14A:17-14 by the Division of Commercial Recording prohibiting professional corporations from registering alternate names other than the deletion of the corporate identifier and renews the ability of professional corporations to avail themselves of the use of alternate names. This bill also eliminates the need for periods in the corporate identifier P.C. and P.A.

Bill Status: On March 22, the bill passed in the Senate, was received in the Assembly and referred to the Assembly Commerce and Economic Development.

Adverse Possession

A-1451 (Wisniewski) (NJSBA supports) revises New Jersey's adverse possession law, which allows an adverse possessor to acquire title to land after 30 years of uninterrupted possession of the property or sixty years in the case of woodlands or uncultivated land. New Jersey has a twenty-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 NJ 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. This bill 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.

Bill Status: On Jan. 12, the bill was introduced and referred to the Assembly Judiciary Committee.

NJSBA Priority Legislation

Insurance Reform

S-177/A-774 (Scutari/Bramnick) (NJSBA supports) provides that the limitation on lawsuit option does not apply in an accidents caused by a drunk driver. New Jersey's 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 six types set forth in the statute (including fractures and permanent injuries). Any person who is convicted of or pleads guilty to DWI shall have no cause of action for recovery of economic or noneconomic damages. Thus, the No Fault Act provides several defenses that limit the damages that 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 DWI is still entitled to assert the defense of the verbal threshold. This bill would reverse the effect of Woodworth.

Bill Status: On Jan. 12, the bills were introduced and referred to the Senate Commerce Committee and the Assembly Financial Institutions and Insurance Committee, respectively.

A-176 (Chiusano) (NJSBA opposes) requires "permanent injury" under limitation on lawsuit threshold to seriously impact life of injured person to pierce threshold. This legislation would reverse the NJ Supreme Court's decision in DiProspero v. Penn., where the Justices ruled that motor vehicle accident victims subject to the limitation on lawsuit threshold, while required to demonstrate that they sustained any of six defined serious injuries, do not also have to prove that those injuries had a "serious impact" on their life to recover damages for pain and suffering, "non-economic damages," in lawsuits. Until this ruling, many lawsuits for non-economic damages were routinely dismissed because of the application of the "serious impact" standard by the lower courts. The NJSBA appeared as amicus in this case and historically, has opposed legislation, which limits access to the courts to individuals because of economic status, including the verbal threshold. The association believes a close examination of the automobile insurance industry would reveal that the average consumer is unaware of the terms and conditions of their coverage, opting often for cost reductions over preservation of their legal rights. The NJSBA opposes this legislation because a reversal of DiProspero is not in the best interest of the driving public, and will hinder access to our courts.

Bill Status: On Jan. 12, the bill was introduced and referred to the Assembly Financial Institutions and Insurance Committee.

Wrongful Death

S-188 (Scutari) (NJSBA supports) amends New Jersey's wrongful death statute. 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 pain and suffering. New Jersey remains in the minority of states to limit recovery in this way. This legislation seeks to 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.

Bill Status: On Jan. 12, the bill was introduced and referred to the Senate Judiciary Committee.

Note: "Under review by the NJSBA" means that the bill is currently being examined by NJSBA sections, committees and/or Board of Trustees and a final position has not yet been reached on the measure.