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Robert J. Fitzgerald

Portrait of Robert J. Fitzgerald

Bob is the managing attorney of the Workers' Compensation Department in the firm's Mount Laurel office. He devotes his entire practice to workers' compensation defense litigation, providing experienced counsel to employers and insurance carriers. Bob has represented employers in many industries, including retail services, hospitals and health care, banking, construction, manufacturing and distribution. Through his extensive litigation experience and educational offerings, Bob has helped clients achieve significant monetary savings and reduce their workers' compensation expenditures.

Bob works in tandem with his clients to develop risk management and litigation strategies that best suit their business needs and goals. He stays abreast of current trends, and frequently authors articles and conducts seminars on issues impacting workers’ compensation in New Jersey. Bob is a regular contributor to the firm’s quarterly newsletter, Defense Digest, and the New Jersey Defense Association publications, and is a frequent presenter for our monthly What’s Hot in Workers’ Comp Live webinar.  

Bob is admitted to practice in New Jersey and Pennsylvania, as well as the U.S. District Courts for New Jersey and the Eastern District of Pennsylvania. He earned his juris doctor from Widener University School of Law, where he was a member of Phi Delta Phi, Honor Chapter. Bob is an active member of the New Jersey Self Insurers' Association, New Jersey Defense Association and New Jersey State Bar Association.

    • Widener University Delaware Law School (J.D., 2000)
    • Temple University (B.A., 1994)
    • New Jersey, 2000
    • Pennsylvania, 2000
    • U.S. District Court Eastern District of Pennsylvania, 2000
    • U.S. District Court District of New Jersey, 2000
    • New Jersey Super Lawyer Rising Star (2006-2007, 2010)
      The Super Lawyers list is issued by Thomson Reuters. A description of the selection methodology can be found here. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.
    • New Jersey Defense Association
    • New Jersey Self Insurers' Association
    • New Jersey State Bar Association
    • Successfully proved that client was not liable for any workers' compensation benefits for a quadraplegic who had a catastrophic fall at the respondent's quarry where the petitioner alleged the respondent was acting as a general contractor. Daryl Hopkins v. Lehigh Hanson, et al., Claim Petition no. 2012-12762, et al., (JWC E. Cox, Jun 16, 2015)
    • Successfully proved that petitioner, a graduate student and teaching assistant, was not considered an employee of a university when he was performing research for his graduate degree.
    • Know When to Hold ’em, When to Fold ’em! Best Bets to Limit Exposure in Claims Management, National Comp 2024, Las Vegas, NV, October 16, 2024
    • Open Mic: Ask the Experts, New Jersey Self Insurers’ Association Annual Conference, April 24, 2024
    • A State-By-State Guide to Avoiding Attorneys' Fees and Sanctions, Marshall Dennehey Workers' Compensation Seminar, October 27, 2022
    • Workers' Compensation Winter Roundup, Graham Company webinar, December 15, 2020
    • Setting the Strategy Stage: When to Deny and Fight a Workers’ Compensation Claim, Marshall Dennehey webinar, October 30, 2020
    • The Intersection of Workers' Compensation and Health Care, Marshall Dennehey Workers' Compensation Seminar, October 24, 2019
    • What Do You Want From Your Defense Attorney, Marshall Dennehey Workers' Compensation Seminar, October 25, 2018
    • Ingredients for Successfully Defending Claims for Work Injuries at Home, Marshall Dennehey Workers' Compensation Seminar, October 19, 2017
    • Do's and Don'ts of Fact Witnesses, Marshall Dennehey Workers' Compensation Seminar, October 27, 2016
    • “New Jersey Appellate Division Continues to Turn Away Alleged Intentional Workplace Injury Claims,” Defense Digest, 2025-09-01, Vol. 31, No. 3
    • “New Jersey Supreme Court Holds That in a Civil Action, the Jury, Not the Judge, Decides the Issue of Whether There Is a Special Employee Relationship,” Defense Digest, Vol. 29, No. 3, September 2023
    • "Penalties, Sanctions and Other Bad Employee Words," Defense Digest, Vol. 28, No. 3, October 2022
    • "I've Got Your Papers Right Here! New Jersey Appellate Division Reverses Extending Workers' Compensation to Owner Based on Alleged Producer and Carrier Errors," Defense Digest, Vol. 28, No. 1, April 2022
    • “New Jersey Workers’ Compensation and Property Leases. Two Greats Tastes That Don’t Taste Great Together,” Defense Digest, Vol. 27, No. 5, December 2021
    • “Better Not Be Late! Workers’ Compensation Occupational Exposure Claims and the Statute of Limitations,” Defense Digest, Vol. 27, No. 2, March 2021
    • “New Jersey Supreme Court Once Again Affirms Employers’ Subrogation Rights,” Defense Digest, Vol. 26, No. 3, September 2020
    • "Workers’ Comp Update: The NJ Supreme Court One Again Affirms an Employers’ Subrogation Rights," New Jersey Defense Magazine, July 2020
    • “The Appellate Division Beats Back Another Challenge to the Intentional Injury Exception of the New Jersey Workers’ Compensation Statute,” Defense Digest, Vol. 25, No. 3, September 2019
    • “New Jersey Workers’ Compensation Section 40 Subrogation Provisions Beat Back a Challenge by the Motor Vehicle Insurance Verbal Threshold,” Defense Digest, Vol. 25, No. 1, March 2019
    • “Dot Your I’s and Cross Your T’s. Insurance Coverage Cancellation Must Be Done Right in New Jersey Workers’ Compensation,” Defense Digest, December 2018, Vol. 24, No. 4
    • "Bifurcation, Compensability and Other Confusing Things in New Jersey Workers’ Compensation," Defense Digest, Vol. 24, No. 3, September 2018
    • "Burdens of Proof and the New Jersey Workers’ Compensation Second Injury Fund," Defense Digest, Vol. 23, No. 2, June 2017; New Jersey Defense Association Newsletter, Spring 2018
    • "Workers’ Compensation Liens Rule!!! The Appellate Division Fends Off Another Challenge to Section 40 of New Jersey’s Worker’s Compensation Statute," Defense Digest, Vol. 22, No. 4, December 2016
    • “What Did You Know and When? The Latest Analysis of the “Discovery Rule” Exception to the Statue of Limitations Defense,” Defense Digest, Vol. 22, No. 3, September 2016
    • "More Than 100% Disabled? The New Jersey Appellate Division's Latest Analysis of Permanent/Total Disability Benefit Awards," Defense Digest, Vol. 22, No. 1, March 2016 and New Jersey Defense Association Newsletter, Spring 2016

Results

Successfully Defended a Claim for Permanent/Total Disability Benefits Where the Potential Exposure Exceeded Half a Million Dollars

We successfully defended a claim for permanent/total disability benefits and significantly lowered our client’s exposure. Given the petitioner’s age and the exposure of the case, our client faced a potential indemnity exposure of more than $500,000. Prior to trial, the petitioner refused to accept any settlement offer below permanent/total disability benefits. Following the petitioner’s testimony at trial, the judge dismissed the claim for permanent/total disability benefits and recommended a partial disability settlement, which equated to approximately $57,000 (only 10% of the potential cost) in total exposure, which was accepted by the petitioner.  

Medical provider claim petition dismissed, with prejudice.

The parties were litigating a motion for medical treatment in which a physician was recommending an additional spinal surgery. The physician moved forward without authorization and performed spinal surgery on the petitioner. In order to complete the surgery, the physician brought in several ancillary services, including a vendor to perform diagnostic monitoring during the surgery. Following the surgery, the medical provider submitted its bills to the carrier, which were rejected based upon the lack of authorization. After a medical provider claim petition was filed, the respondent filed a motion to dismiss the matter for failure to obtain the requisite statutory authorization. The medical provider argued that it was only providing ancillary services and, therefore, did not require the authorization of the carrier under the New Jersey Workers’ Compensation Statute. The medical provider also argued that they were the “victim” since they were advised by the physician that the procedure was authorized. The judge rejected both arguments, holding that all medical providers including providers that provide ancillary services for surgical procedures, are required to obtain the same authorization for their treatment, or risk not receiving financial reimbursement.

Thought Leadership

Defense Digest

Watch That First Step! New Jersey Again Addresses The Eternal Battle of Intentional injuries vs. The Exclusive Remedy Doctrine

March 1, 2026

Key Points: The exclusive remedy doctrine bars a petitioner from filing a personal injury suit arising out of a workplace injury. The exclusive remedy doctrine can be overcome if a petitioner can prove an “intentional injury.” A petitioner has a high burden of proof under a multi-part analysis to succeed on an intentional injury claim. The Appellate Division of the New Jersey Superior Court once again reaffirmed the strength of the exclusive remedy doctrine of the New Jersey Workers’ Compensation Statute against alleged intentional injury claims in Jonathan Little v VDM Metals USA, LLC, et al., 2025 WL 3276688 (NJ Super. App. Div. Nov. 25, 2025). In this case, the petitioner worked as a material handler for VDM, a steel manufacturer, when he sustained a compensable fall while exiting a trailer. The petitioner was clearing packing materials on a flat-rack trailer: an open trailer with only two sides – front and back. The petitioner sustained head injuries in the fall and was unable to describe the accident. The petitioner’s supervisor, Frendly Blas, provided some details leading up to the accident, although he did not witness the fall. Blas testified that, prior to the accident, the petitioner received safety training on fall prevention. Blas estimated the flat-rack trailer bed sat five or six feet off the ground. Further, a "RollaStep Mobile Platform," intended to protect workers from falls whenever they accessed a surface at least four feet off the ground, was near the truck, but not used at the time of the fall. Blas was responsible for ensuring the use of the RollaStep, but did not remember why it was not used during the incident. An OSHA report confirmed the RollaStep was positioned nearby the trailer. OSHA determined the primary cause of the accident was complacency, as it appeared the RollaStep was generally not used when there were only a few steel plates being unloaded. The petitioner’s expert report in the personal injury case indicated that training records did not show the petitioner received specific training on flat-rack trailers. The petitioner filed a personal injury action for negligence, gross negligence, and intentional wrongs against the employer, VDM. More specifically, the petitioner asserted VDM failed to provide adequate training, safety measures, and protective equipment, along with not providing enough staff to safely operate the facility. After discovery concluded, VDM won a motion for summary judgment. The trial court found that the plaintiff failed to establish that VDM’s conduct was an intentional act sufficient to surmount the Act's high bar, and dismissed the petitioner’s complaint.  The court employed the two-part standard test in Laidlow v. Hariton Mach. Co., 790 A.2d 884, 894-896 (N.J. 2002): the court determined the petitioner had not established his injuries were substantially certain to occur or fell outside the "facts of life" attendant to industrial employment. On appeal, the petitioner argued the trial court erred in granting summary judgment, as he established sufficient facts to show the defendant's intentional conduct. The petitioner contended that the record contained facts sufficient to show that adequate training was not provided related to unloading the flat-rack trailer or protecting his safety by using the RollaStep safety measure. Thus, claiming the fall from an elevated surface could not be a fact of industrial life for someone that finished and packed material. The Appellate Division affirmed the dismissal, noting that the intentional wrong exception in Laidlow is interpreted very narrowly so that as many work-related injury claims as possible can be processed exclusively within the workers' compensation system. Thereunder, to successfully prove an intentional injury claim the petitioner must prove: that the employer knew that its actions are substantially certain to result in injury or death to the employee; and the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the legislature intended the Act to immunize. Laidlow, 790 A.2d at 894. Further, the petitioner bears the burden of establishing both the "conduct" and "context" prongs. To satisfy the conduct requirement, a petitioner must show a defendant acted with "substantial certainty” that injury or death would result. Again, mere knowledge and appreciation of a risk is insufficient. In this case, the court noted VDM failed to utilize the RollaStep during small unloading jobs, and that OSHA concluded that the defendant failed to provide the RollaStep due to "complacency."  However, the court also noted there was no evidence to suggest any employees previously fell from a trailer while unloading it. Further, the petitioner was not unloading the truck, but exiting the trailer after the work was completed. Thus, even presuming his inexperience with “unloading," the petitioner was not handling or removing the metal sheets when the fall occurred. Additionally, the petitioner was trained to avoid falls, albeit not specifically to avoid falls from flat-rack trailers. Without evidence that VDM was aware of a known or heightened danger, any lack of training, even considered together with VDM’s failure to use a RollaStep, did not demonstrate that the defendant was substantially certain that harm would arise from its actions. Additionally, there was no evidence that the defendant deliberately and deceptively removed the safety device from the location. Even if VDM knew that the failure to use the RollaStep created some degree of danger, mere knowledge by an employer that a workplace is dangerous does not equate to an “intentional wrong."  The court noted that it had rejected the idea that a longstanding negligent or reckless practice should be deemed an intentional wrong under the Act simply because the risk posed by an ongoing wrongful practice will eventually occur. While this case does not necessarily add anything new to the “intentional injury” test, it is a great reminder as to the court’s analysis of such claims. Again, a petitioner has a very high burden of proving both the “conduct” and “context” prongs under Supreme Court’s Laidlow decision. The purpose of the exclusive remedy doctrine is to keep work claims in the workers’ compensation forum, while only the most egregious cases dealing with poor employer conduct can pierce the bar. Regardless of this decision, employers and carriers should always take great strides in insuring workplace safety. If you have any questions about your workplace safety program and procedures, please reach out to your TPA carrier and counsel for advice before the next potential work injury.  Robert Fitzgerald works in our Mount Laurel, NJ office. He can be reached at (856) 414-6009 or RJFitzgerald@mdwcg.com.

Defense Digest

New Jersey Appellate Division Continues to Turn Away Alleged Intentional Workplace Injury Claims

September 1, 2025

Key Points: New Jersey Appellate Division, once again, turns away intentional injury claim in an attempt to overcome the workers’ compensation bar. To prove an intentional wrong under the Workers’ Compensation Act, a plaintiff must show that: (1) the employer knows its actions are substantially certain to result in injury or death to the employee; and that (2) the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers’ Compensation Act to immunize. The New Jersey Appellate Division has once again turned away an intentional injury claim in an attempt to overcome the workers’ compensation bar in Estate of Michael Alexander et al., v. Northeast Sweepers, et al., and Crisdel Construction, et al., 2025 WL 1711136 (N.J. App. Div. Jun 19, 2025). The case itself has an extensive record and a long procedural history, including two prior appeals, from a workplace injury going back to 2014. For purposes of this article, we have cited only the most relevant facts from the court’s analysis of the intentional injury issue. On July 11, 2014, Mike Alexander, an employee of Crisdel Construction, was struck by a sweeper truck owned by Northeast Sweepers and operated by a co-employee of Crisdell, Christopher Hackett. Alexander was taken to a hospital and passed away approximately one month later. Crisdel was the general contractor and was responsible for milling and paving operations. Alexander had served as a milling foreman on the resurfacing project. At the time of the accident, Alexander was wearing a reflective safety vest, hard hat, and a flashlight that had been turned on. The resurfacing work area consisted of two lanes of the New Jersey turnpike and the right shoulder. Crisdel had 12 pieces of machinery, including milling and paving equipment, two sweepers, and at least five dump trucks.  The work area was illuminated by the lights from various vehicles and the moon, but there were no light towers. The sweeper trucks and milling machines had lights, which pointed several feet directly behind each vehicle. The sweeper trucks and milling machines also had backup alarms, but the milling and paving work generated a great deal of noise in the work area. Workers at the scene had not reviewed a written traffic control plan before the accident. The workers had gathered at the outset of the night to discuss where they would be operating and what they would be doing that night. There were no flag persons or spotters. Hackett had over 15,000 hours of experience in operating the sweeper, and Northeast considered him to be a “senior operator.” Before the accident, some workers, including Alexander, had discussed that Hackett was a “dangerous operator.” Approximately one week beforehand, Alexander had allegedly brought his concerns to the attention of the project manager. There were, however, no formal complaints regarding Hackett or his job performance. It was Crisdel’s practice to assign a dump truck to each sweeper truck for efficiency and safety reasons. At the time of the accident, however, no dump truck was near Hackett’s sweeper. The accident occurred when Hackett drove his sweeper around a milling machine and struck Alexander. At his deposition, Hackett testified: “I think it was my error. I missed [Alexander] in my line of sight. And I’m responsible for a human life.” OSHA conducted an investigation and determined that Crisdel had failed to “furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees,” and failed to “establish a pre-planned traffic pattern for pedestrian and construction traffic . . . to ensure the safety of the employees working and walking within the construction work zone.” The “type of violation” was noted as “serious,” but not “willful” or “repeated.”  In an amended complaint brought in their civil action related to Alexander’s death, plaintiffs, Estate of Mike Alexander, deceased, by Lorraine Alexander as Executrix of the Estate, and Lorraine Alexander, individually, alleged that Crisdel had engaged in conduct that constituted intentional wrongs that resulted in Alexander’s death. Alexander and his estate had received workers’ compensation benefits related to the accident. In Crisdel’s answer, it asserted the affirmative defense that the plaintiffs’ claims were barred by the New Jersey Workers’ Compensation Act. Crisdel then moved for summary judgment to dismiss the plaintiffs’ claims against it.  The trial court granted summary judgment in favor of Crisdel and found that the plaintiffs had failed to produce evidence that would allow a reasonable trier of fact to conclude that Crisdel had committed an intentional wrong. The trial court also reasoned that the accident which caused Alexander’s death was in the nature of the type of accidents that occur in construction areas. The plaintiffs then appealed the order granting summary judgment to Crisdel.  The Appellate Court first noted that the Workers’ Compensation Act reflects a historic trade-off whereby employees relinquish their right to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they suffer injuries by accidents arising out of and in the course of employment. Rodriguez v. Shelbourne Spring, LLC, 327 A.3d 134, 140 (N.J. 2024) (quoting Millison v. E.I. Du Pont de Nemours & Co., 501 A.2d 505, 512 (N.J. 1985)). The only exception to the workers’ compensation bar is for injuries caused by intentional wrongs. Richter v. Oakland Bd. of Educ., 252 A.3d 161, 178-179 (N.J. 2021) (quoting Laidlow v. Hariton Mach. Co., 790 A.2d 884, 894 (N.J. 2002)). To prove an intentional wrong under the Workers’ Compensation Act, a plaintiff must show that: (1) the employer must know its actions are substantially certain to result in injury or death to the employee; and that (2) the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers’ Compensation Act to immunize. Id. The court noted that the New Jersey Supreme Court has explained that “the ‘substantial certainty' test is still a high standard to meet: to avoid allowing employees to circumvent the Act, courts must demand a virtual certainty before employees can proceed under the intentional wrong exception to sue their employer in tort." Van Dunk v. Reckson Assocs. Realty Corp., 45 A.3d 965, 978 (N.J. 2012) (quoting Millison, 501 A.2d at 514). In this appeal, the plaintiffs identified six specific areas of safety protocols or devices that were allegedly known to and ignored by Crisdel on the night of the accident: (1) work lighting, (2) audible backup alarms, (3) properly functioning mirrors, (4) dedicated dump trucks, (5) the use of spotters, and (6) a written traffic control plan. The plaintiffs also argued that Crisdel ignored the complaints concerning Hackett’s dangerous operation of the sweeper and failed to learn from prior incidents.  In their detailed analysis of each allegation, the court noted that none of the evidence pointed to by the plaintiffs constituted evidence of an intentional wrong within the meaning of the Act. The court also noted there were no formal complaints regarding Hackett’s job performance and that he was not previously involved in any accidents while operating a sweeper. Concerning the OSHA violations, the court noted that there were no prior OSHA citations at the New Jersey Turnpike job site and that the subsequent OSHA violation cited Crisdel for “serious” issues but not “willful” violations. Moreover, the New Jersey Supreme Court has explained that OSHA safety violations do not, on their own, establish the virtual certainty required to prove an intentional wrong. Van Dunk, 45 A.3d at 978. See also Laidlow, 790 A.2d at 898. This case illustrates the constant barrage of intentional injury claims being asserted against the workers’ compensation bar. In a construction scenario such as this, the two most common means of attack, lately, are whether the employer had safety training, programs, and/or protocols prior to a workplace accident, and whether there was a significant violation in any subsequent OSHA investigation. All employers are urged to routinely update their safety programs to make sure that they, at a minimum, meet the OSHA standards and, preferably, go beyond those standards. Further, employers should designate employee health and safety compliance as a top priority, not just for the personnel directly involved in the department, but for every employee in the organization, to prevent a workers’ compensation liability.  Bob is a member of the Workers’ Compensation Department. He can be reached at (856) 414-6009 or RJFitzgerald@mdwcg.com.    Defense Digest, Vol. 31, No. 3, September 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2025 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

Thought Leadership

New Jersey Appellate Division Affirms Recreational Immunity for County Under Landowners' Liability Act

In a recent unpublished decision in Matthew Kuzma, etc. v. Middlesex County Parks Department, et al., the New Jersey Appellate Division affirmed summary judgment in favor of Middlesex County Parks Department, holding that the county was immune from liability under New Jersey's Landowners' Liability Act (LLA), notwithstanding its failure to plead the immunity as an affirmative defense in its answer to the Complaint. The case arose from injuries sustained by fourteen-year-old plaintiff, Matthew Kuzma, while playing basketball at Spring Lake Park in South Plainfield on August 23, 2019. The plaintiff observed a crack in the basketball court before beginning to play but did not consider it dangerous. During the game, his foot became caught in the crack, causing him to fall and suffer a significant ankle injury. The plaintiff alleged that the injury resulted in ongoing physical limitations and deprived him of the opportunity to play collegiate basketball. The plaintiff filed suit alleging that the defendants negligently maintained the basketball court. Although the county did not assert LLA immunity as an affirmative defense in its answers, it later moved for summary judgment on that basis. The plaintiff opposed the motion, arguing that the county had waived the defense by failing to plead it. The county maintained that the plaintiff had received sufficient notice of its intent to rely on the LLA through discovery and therefore suffered no unfair surprise or prejudice. The trial court agreed and granted summary judgment, concluding that the county should be permitted to invoke statutory immunity notwithstanding its failure to formally plead the defense. Relying heavily on the New Jersey Supreme Court's guidance in Arias v. Cnty. of Bergen, holding a county park was subject to the immunity of the LLA, the Appellate Division affirmed, holding that the county's failure to plead LLA immunity did not preclude reliance on the defense under the circumstances presented. The court determined that the plaintiff had received adequate notice of the immunity claim through discovery and that permitting the defense furthered the public-policy objectives embodied in the LLA. In affirming dismissal, the Appellate Division acknowledged the seriousness of the plaintiff's injury and the general societal interest in maintaining parks and recreational facilities in a safe condition. However, the court emphasized that both the legislature and the New Jersey Supreme Court have expressed a clear policy choice to limit liability for public and private landowners who make recreational property available for public use. The decision reinforces the courts' continuing adherence to the Landowners' Liability Act and the principle that recreational lands and facilities should be broadly protected from liability exposure, even in cases involving significant personal injuries.

Thought Leadership

The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.