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New Jersey Governor Murphy Signs New Law To Broaden Who Can Pursue Survival Actions

Passage of ASSEMBLY, No. 6133 Removes Procedural Barrier For Plaintiffs Pursuing Survival Act Claim

TRENTON, NEW JERSEY (January 19, 2022) – A procedural barrier preventing many plaintiffs from pursuing claims on a technical issue of standing has been reversed thanks to the passage of ASSEMBLY, No. 6133.

New Jersey Governor Murphy signed the legislation on January 18, 2022.

GLK Attorney Michael A Fruhling

GLK Attorney Michael A. Fruhling, resident NJ partner at Gersowitz Libo & Korek, P.C., was one of the New Jersey  attorneys to bring the procedural issue to the attention of his colleagues at the New Jersey Association of Justice with regard to the New Jersey’s Survivor’s Act. The leadership at the New Jersey Association of Justice, where Mr. Fruhling is an active Board Member, helped make the passage of ASSEMBLY, No. 6133 a reality. In short, Mr. Fruhling and others  advised the Board that the Surrogate’s Court would only issue letters ad prosequendum, which allows for the prosecution of a wrongful death action, and would not issue general letters of administration, which authorized pursuit of the survival action claims, for his client.

Legal standing simply refers to the individuals or entities that are legally allowed to bring a claim or challenge a law. A lack of standing is a technical reason that a claim can be effectively thrown out.

Under the “survivor’s act,” N.J.S.2A:15-3, damages for the decedent’s pain and suffering can be awarded to the decedent’s estate. In the event that a person dies without a will, the county surrogate will appoint a general administrator of the estate. In New Jersey, the county surrogate will then typically appoint a next of kin as administrator ad prosequendum.

The Unfortunate Precedent Set By Chandler v. Kasper

When a decedent is only appointed administrator ad prosequendum this can create technical issues with respect to standing under N.J.S.2A:15-3. This is exactly what happened in Chandler v. Kasper. On December 21, 2016, Joseph Chandler was hit by a car driven by Todd Kasper and died six days later.

Joseph’s sister Damaris Chandler was instructed by the county surrogate that she only needed to be appointed administrator ad prosequendum, since there were no assets in the estate. Disagreements among her siblings delayed her being appointed General Administrator until December 2020.

This was past the statute of limitations for being able to pursue a survival action, despite the fact she filed a wrongful death and survival action claim on December 18, 2020 – which was within the statute of limitations.

Ultimately, after many appeals, the court dismissed Damaris Chandler’s survival action claim and argued that only the General Administrator has legal standing to pursue a survival action claim.

The effect of the Chandler decision was that many cases brought under the wrongful death act or survivor’s act could be dismissed on a technicality.

Reversing Chandler v. Kasper Through Legislation

Thanks to the passage of ASSEMBLY, No. 6133, this technical procedural barrier on the issue of standing created by Chandler v. Kasper was nullified when the bill was passed. The current version of N.J.S.2A:15-3 reads 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.”

In addition to allowing the administrators ad prosequendum to pursue a claim, the statute now allows a plaintiff to be designated as an administrator for the purpose of the statute by the court. But the plaintiff must have been qualified for the appointment prior to the designation. Even better still, all of the plaintiffs who had their cases thrown out on a technicality on the issue of standing may be able to resume their claims, provided that there cases have not been fully dismissed or adjudicated. As outlined in section (b.) of the statute:

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.”

As stated in section 3 of the bill, the law goes into effect immediately, and applies to any action “commenced prior to the effective date and not yet dismissed or 11 finally adjudicated as of the effective date.”

The passage of ASSEMBLY, No. 6133 represents a huge success for all of the impacted plaintiffs and their families. Gersowitz Libo & Korek, P.C. would like to extend a big thank you to Michael A. Fruhling and the leadership at the New Jersey Association of Justice, and all the other people who fought hard to make the passage of this legislation possible.

GLK continues to accept referrals of NJ cases with referral fees paid in accordance with all ethical laws of the state of New Jersey. For additional information about the passage of Assembly No. 6133 or the referral of your NJ personal injury or medical malpractice case please call resident GLK  New Jersey partner Michael A. Fruhling 201 – 541-8540 or email [email protected]

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Jeff Korek

Jeff S. Korek

Senior Trial Partner​

Jeff S. Korek joined Gersowitz Libo & Korek, P.C. in 1992 as the Senior Trial partner. Known for his meticulous preparation and dedication to his clients, Jeff has obtained some of the state’s highest verdicts and settlements.