S4251

An Act concerning certain actions for wrongful death and amending N.J.S.2A:15-3 and N.J.S.2A:31-2.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. N.J.S.2A:15-3 is amended to read as follows:

2A:15-3. a. (1) Executors [and], administrators, and administrators ad prosequendum 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, or administrator ad prosequendum may recover all reasonable funeral and burial expenses in addition to damages accrued during the lifetime of the deceased.

(2) In the case of a plaintiff qualified for appointment as administrator who was not yet appointed administrator at the time the plaintiff commenced an action under this section, the court may allow the plaintiff to be designated administrator for the purposes of this section and to allow the plaintiff to amend pleadings nunc pro tunc relating back to the plaintiff’s first filed pleading to reflect the designation.

b. 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.

(cf: P.L.2009, c.266)

2. N.J.S.2A:31-2 is amended to read as follows:

2A:31-2. a. Every action commenced under this chapter shall be brought in the name of an administrator ad prosequendum or administrator of the decedent for whose death damages are sought, except where decedent dies testate and his will is probated, in which event the executor named in the will and qualifying, or the administrator with the will annexed, as the case may be, shall bring the action.

b. In the case of a plaintiff who is qualified for appointment as administrator ad prosequendum, executor, or administrator with the will annexed, as the case may be, but who was not yet appointed as such at the time the plaintiff commenced an action under this chapter, the court may allow the plaintiff to be designated administrator ad prosequendum, executor, or administrator with the will annexed, as the case may be, and to allow the plaintiff to amend pleadings nunc pro tunc relating back to the plaintiff’s first filed pleading to reflect the designation.

(cf: P.L.1951, c.344)

3. This act shall take effect immediately and shall apply to any action commenced on or after the effective date and to any action commenced prior to the effective date and not yet dismissed or finally adjudicated as of the effective date.

STATEMENT

This bill would allow certain persons to pursue a lawsuit for damages for wrongful death on behalf of the deceased’s survivors.

Pursuant to current law, civil actions for damages arising from a person’s wrongful death may be brought under two separate statutes: (1) Under the “wrongful death act,” N.J.S.2A:31-1 et seq., economic damages may be awarded to persons who would be entitled to the deceased’s property under the intestacy laws; and

(2) Under the “survivor’s act,” N.J.S.2A:15-3, damages for the decedent’s pain and suffering from the time of the injury until death may be awarded to the decedent’s estate.

When a person dies without a will, the county surrogate will appoint a general administrator of the estate who, among other duties, is authorized to file any civil actions under the survivor’s act. The surrogate will appoint an administrator ad prosequendum (generally the same person who is appointed general administrator) to file any civil actions under the wrongful death act.

In an unpublished decision, Chandler v. Kasper, Docket No. A-2143-20 (decided October 7, 2021) the Appellate Division held that the decedent’s daughter did not have standing to file a lawsuit under the survivor’s act because she had not yet been appointed general administrator of her father’s estate; she had been appointed only as administrator ad prosequendum, which entitled her to file suit under the wrongful death act (but not under the survivor’s act). According to the daughter, the county surrogate had advised that it was necessary for her only to be appointed as administrator ad prosequendum in order to file the lawsuit, and disagreements with her siblings had led to a delay in her being able to seek appointment as general administrator.

In the view of the sponsor, the Chandler decision can lead to many cases brought under the wrongful death act or the survivor’s act being dismissed on a technicality.

This bill is intended to address the issue by providing that the court may appoint a person as an administrator or administrator ad prosequendum even if the person was not yet appointed as such at the time the person filed a lawsuit under the wrongful death act or survivor’s act. The bill provides that the court could allow the person filing suit to be designated administrator ad prosequendum, executor, or administrator with the will annexed, as the case may be, and to allow the plaintiff to amend any pleadings relating back to the plaintiff’s first filed pleading to reflect the designation.

The bill would take effect immediately. It would apply to any action commenced on or after the effective date and to any action commenced prior to the effective date and not yet dismissed or finally adjudicated as of the effective date.