NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1949-15T4

DEBRA WARREN, Executrix

of the ESTATE OF ROBERT

WARREN and DEBRA WARREN,

Individually,

Plaintiffs-Respondents,

v.

CHRISTOPHER P. MUENZEN, M.D.,

CHARLES CAREY, P.A., and 

CHRISTOPHER P. MUENZEN, M.D., 

P.A.,

Defendants-Appellants.

________________________________________________

Argued October 6, 2016 – Decided

Before Judges Messano, Guadagno and Suter.

On appeal from the Superior Court of New 

Jersey, Law Division, Morris County, Docket 

No. L-0207-13.

William L. Brennan argued the cause for 

appellants (The Law Office of William L. 

Brennan, attorneys; Mr. Brennan, of counsel 

and on the briefs; John Kilbride and Abbey 

True Harris, on the briefs).

John J. Ratkowitz argued the cause for 

respondents (Starr, Gern, Davison & Rubin, 

P.C., attorneys; Mr. Ratkowitz, of counsel 

and on the briefs; Robert C. Sanfilippo, on 

the briefs).

Andres & Berger, P.C., attorneys for amicus 

curiae New Jersey Association for Justice 

APPROVED FOR PUBLICATION

December 7, 2016

APPELLATE DIVISION

December 7, 2016
2 A-1949-15T4

(Kenneth G. Andres, Jr., of counsel and on 

the brief; Tommie Ann Gibney and Abraham 

Tran, on the brief).

Drinker Biddle & Reath, L.L.P., attorneys 

for amicus curiae New Jersey Hospital 

Association (Ross A. Lewin, of counsel and 

on the brief; James C. Jones, on the brief).

Hill Wallack, L.L.P., attorneys for amicus 

curiae Property Casualty Insurers 

Association of America (Todd J. Leon, of 

counsel and on the brief; James Harry 

Oliverio, on the brief).

The opinion of the court was delivered by

MESSANO, P.J.A.D.

By leave granted, defendants Christopher P. Muenzen, M.D., 

and Christopher P. Muenzen, M.D., PA (collectively, defendant), 

appeal from the Law Division's December 1, 2015 order denying 

partial summary judgment based on the statute of limitations 

(SOL) applicable to the New Jersey Survivor Act (the Survivor 

Act), N.J.S.A. 2A:15-3.1 For purposes of our review, we consider 

the motion record in a light most favorable to plaintiff, Debra 

Warren, who brought suit individually and as executrix of the 

estate of her late husband, Robert Warren. Steinberg v. Sahara 

Sam's Oasis, LLC, 226 N.J. 344, 366 (2016); R. 4:46-2(c).

 

1 Defendant Charles Carey, P.A. (Carey), was granted summary 

judgment for reasons unrelated to the issues raised on appeal, 

but was named as a moving party when defendant sought leave to 

appeal. Plaintiff has not cross-appealed as to Carey.
3 A-1949-15T4

In 2007, complaining of migraine headaches, Robert was seen 

by defendant, his personal physician.2 As part of the 

examination, blood samples were taken and sent for testing. 

Robert's PSA3 level was 15.4, significantly higher than normal, 

and recognized by defendant in his deposition as indicative of 

prostate cancer. It is disputed whether defendant conveyed the 

significance of the reading to Robert at this time.

In September 2009, Robert's complaints of groin pain caused 

another visit to defendant. At this point, Robert's PSA reading 

was 1244.88. Following further examination in October, 

defendant diagnosed Robert with prostate cancer, which was later 

confirmed by biopsy. Over the ensuing two years, despite 

chemotherapy and other treatment, the cancer progressed and 

metastasized to Robert's brain and spine. He died on September 

27, 2011, as a result of complications from the cancer.

Plaintiff filed suit on January 18, 2013, alleging 

defendant was medically negligent. In counts one and two, 

plaintiff sought pecuniary damages on behalf of her husband's 

estate pursuant to the Wrongful Death Act, N.J.S.A. 2A:31-1 to -

6 (the WDA). In count three, plaintiff sought damages for 

 

2 To avoid confusion, we may use plaintiff's decedent's first 

name. We intend no disrespect by this informality.

3 PSA stands for Prostate-Specific Antigen. 
4 A-1949-15T4

Robert's pain, suffering, medical expenses and lost earnings 

while alive, and, in count four, she sought damages for her loss 

of consortium during her husband's life. Finally, in count 

five, plaintiff sought damages for the severe emotional distress 

she suffered from witnessing the effects of her husband's 

illness. Portee v. Jaffee, 84 N.J. 88 (1980). In addition to 

his general denial, defendant affirmatively pled the SOL as a 

defense.

Defendant subsequently moved for summary judgment, arguing 

that counts three, four and five were barred by the two-year SOL 

applicable to medical malpractice claims. See N.J.S.A. 2A:14-

2(a) (requiring a claim for personal injury to be brought within 

two years of accrual).4 After considering oral argument, the 

judge granted the motion as to count five but denied the motion 

as to counts three and four, explaining his reasoning in a 

written opinion we discuss more fully below. 

 

4 For purposes of the motion and this appeal, defendant 

acknowledges applicability of the discovery rule. See, e.g., 

Guichardo v. Rubinfeld, 177 N.J. 45, 51 (2003) ("Although the 

discovery rule does not require 'knowledge of a specific basis 

for legal liability or a provable cause of action,' it does 

require 'knowledge not only of the injury but also that another

is at fault.'") (quoting Martinez v. Cooper Hosp.-Univ. Med. 

Ctr., 163 N.J. 45, 52 (2000)). Plaintiff's cause of action, 

therefore, did not accrue until September or October 2009. 
5 A-1949-15T4

We granted defendant's motion for leave to appeal.5 

Additionally, we permitted amici New Jersey Association for 

Justice, New Jersey Hospital Association (NJHA) and Property 

Casualty Insurers Association of America to file briefs.

I.

We set forth the legal framework. Although actions under 

the WDA and the Survivor Act "arise from the identical 

occurrence, i.e., the death of the plaintiff, they serve 

different purposes and are designed to provide a remedy to 

different parties." Smith v. Whitaker, 160 N.J. 221, 231 (1999) 

(citing Soden v. Trenton & Mercer Cty. Traction Co., 101 N.J.L.

393, 398-99 (E. & A. 1925)). "[T]he [WDA] provides to 

decedent's heirs a right of recovery for pecuniary damages for 

their direct losses as a result of their relative's death due to 

the tortious conduct of another." Aronberg v. Tolbert, 207 N.J.

587, 593 (2011). Any recovery passes directly to the decedent's 

heirs, not through his or her estate. Ibid. (citing Alfone v. 

Sarno, 87 N.J. 99, 107-08 (1981); see also N.J.S.A. 2A:31-4). 

"Unlike a wrongful death action, which is a derivative 

action arising in favor of beneficiaries named under that act, 

the Survivor[] Act preserves to the decedent's estate any 

 

5 Plaintiff has not cross-appealed from the dismissal of count 

five of the complaint.
6 A-1949-15T4

personal cause of action that decedent would have had if he or 

she had survived." Smith, supra, 160 N.J. at 233 (internal 

citation omitted). "The survival action merely 'perpetuat[es] 

the right of action which the deceased himself would have had, 

to redress his own injuries, but for his death.'" Alfone, supra, 

87 N.J. at 108 (alteration in original) (emphasis added) 

(quoting 2 F. Harper & F. James, The Law of Torts § 24.2 at 1287 

(1956)). As in this case, the two distinct claims are 

frequently pled together in one action, and the WDA claim is 

cognizable even when the Survivor Act claim is barred by the 

SOL. Gershon, Adm'x Ad Prosequendum for Estate of Pietroluongo 

v. Regency Diving Ctr., 368 N.J. Super. 237, 245-246 (App. Div. 

2004) (citing Miller v. Estate of Sperling, 166 N.J. 370, 386-87 

(2001)). 

The WDA has always included a specific SOL. See L. 1848 p.

151, § 2 (providing "every action shall be commenced within 

twelve calendar months after the death of such deceased 

person"). Currently, the WDA provides:

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. 
7 A-1949-15T4

[N.J.S.A. 2A:31-3 (emphasis added).]

The portion we emphasize was the result of an amendment enacted 

by the Legislature in 2000. L. 2000, c. 157 (Nov. 17, 2000). 

At the time, the Legislature made clear that the bill's purpose 

was to "enable the family of a murder victim to sue if at some 

time in the future the person who committed the murder acquires 

substantial assets." Senate Judiciary Committee, Statement to 

S. 1125 (June 22, 2000); see also Assembly Judiciary Committee, 

Statement to A. 1934 (June 8, 2000) ("Eliminating the statute of 

limitations for these wrongful death suits will preserve the 

right of murder and manslaughter victims' families to sue at 

some future date.").

Prior to 2010, the Survivor Act contained no explicit SOL. 

It provided in full:

Executors and administrators 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 

may recover all reasonable funeral and 

burial expenses in addition to damages 

accrued during the lifetime of the deceased.
8 A-1949-15T4

[N.J.S.A. 2A:15-3 (2009).]

The language of the first paragraph has remained virtually 

unchanged from when the statute was first enacted in 1855. See

Canino v. New York News, Inc., 96 N.J. 189, 192 n.1 (1984). The 

second paragraph, which spoke specifically to causes of action 

"where death resulted from injuries[,]" was not added by the 

Legislature until 1969. L. 1969, c. 266 (Jan. 12, 1970).6

In 2009, however, the Legislature added the following 

provision to the Survivor Act (the 2009 Amendment): 

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.

[L. 2009, c. 266 (Jan. 17, 2010).]

The intent of the Legislature was quite clear. Recognizing that 

the 2000 amendment to the WDA "applied to only one of the two 

types of civil actions that may be brought against persons 

responsible for a wrongful death[,]" the Legislature intended to 

 

6 The 1969 amendment also added funeral and burial expenses as 

cognizable damages due the estate. The Legislature added 

similar language to N.J.S.A. 2A:31-5 in 1967. See Schmoll v. 

Creecy, 104 N.J. Super. 126, 138-39 (App. Div.), rev'd on other 

grounds, 54 N.J. 194 (1969). 
9 A-1949-15T4

"address[] the other type of civil action[,]" by "amend[ing] the 

'Survivor[] Act' to eliminate the two-year statute of 

limitations for cases where the death resulted from murder, 

manslaughter or aggravated manslaughter and, thus, conform this 

action to the provisions of [the WDA]." Senate Judiciary 

Committee, Statement to S. 2763 (May 18, 2009) (emphasis added); 

see also Assembly Judiciary Committee, Statement to A. 4158

(Jan. 4, 2010) (noting the bill was intended to "address[] th[e] 

oversight" when the WDA was amended in 2000 "by eliminating the 

[SOL] for certain actions brought under the 'Survivor[] Act'") 

(emphasis added).

II.

A.

The motion judge determined the SOL began to run in October 

2009, which was when Robert knew or should have known that 

defendant's alleged failure to warn him earlier of the 

significance of the elevated PSA reading gave rise to a claim 

for medical negligence. As a result, plaintiff's suit should 

have been brought by October 2011 at the latest, but it was not 

filed until January 2013. Plaintiff argued the plain language 

of the Survivor Act meant her claim was timely, because it was 

filed within two years of Robert's death. The judge rejected 

that contention because accepting plaintiff's literal reading 
10 A-1949-15T4

would yield an absurd result — "[c]laimants would be filing 

lawsuits years after the cause of action accrued and . . . the 

[SOL] would be inutile and . . . incompatible with the 

legislative design." 

However, also rejecting defendant's contentions, the judge 

reasoned:

When one reads the [Survivor Act] as a 

whole, it seems clear . . . that what the 

[L]egislature intended is that the decedent 

must have a cause of action that is not 

barred by the statute of limitations when he 

dies. If the person dies with a claim not 

time-barred, then from the date of death, 

the administrator or executor has the 

extended two years from the date of death to 

file survival actions (it being understood, 

however, that the two[-]year limitation does 

not apply when the death resulted from 

murder, aggravated manslaughter or 

manslaughter for which the defendant has 

been convicted, found not guilty by reasons 

of insanity or adjudicated delinquent).

[(Emphasis in original).]

The judge further stated that "[n]owhere does the statute 

require that the administrator or executor must bring suit 

within the original [two-]year limitation of time nor is there 

case law to support such a position." 

The judge concluded Robert had a cognizable cause of action 

against defendant for medical negligence that was not timebarred when Robert died in September 2011. The judge determined 

as a result that plaintiff's Survivor Act claims, filed within 
11 A-1949-15T4

two years of Robert's death, should not be dismissed. He 

entered a conforming order, and we granted defendant's motion 

for leave to appeal.

B.

Defendant argues that as a result of the 2009 Amendment, 

the Survivor Act is "internally inconsistent" because it limits

the executrix's claims to those a decedent would have had if he 

had lived, but permits suit to be filed years thereafter, as 

long as a complaint is brought within two years of death. 

Defendant asserts the motion judge's interpretation of the 

statute fails to avert the absurd and unfair result that claims 

could be made by administrators and executors many years after 

the alleged tortious act that resulted in damages. Defendant 

urges us to consider the legislative history of the 2009 

Amendment in order to properly construe the statute and ensure 

the Legislature's intent, which he argues was only to permit 

Survivor Act claims resulting from criminal homicides to be 

brought at any time.

Plaintiff urges us to affirm, continuing to assert, as she 

did before the motion judge, that the plain language of the 2009 

Amendment demonstrates the Legislature's intent to provide a 

two-year SOL to "[e]very action" brought under the Survivor Act. 

N.J.S.A. 2A:15-3. She argues that such a construction results 
12 A-1949-15T4

in no more absurd a result than occasioned by the WDA's SOL. In 

other words, pursuant to the WDA, the Legislature permitted 

heirs of a decedent to bring suit for tortious conduct that may 

have occurred years earlier, requiring only that the conduct 

have caused death and the suit be filed within two years of 

death. Amicus New Jersey Association for Justice essentially 

echoes plaintiff's arguments.

Amicus Property Casualty Insurers Association of America 

reiterate defendant's contentions and further argues that the 

2009 Amendment creates uncertainty for both insurers and 

insureds as to the coverage provided by their policies. 

Finally, the NJHA argues that proper construction of the 

Survivor Act requires consideration of not only N.J.S.A. 2A:14-

2, but also N.J.S.A. 2A:14-1, the six-year SOL governing all 

claims for damages to real and personal property, and N.J.S.A.

2A:14-23.1, which tolls the operation of all statutes of 

limitation for six-months following death. 

We have considered these arguments in light of the record 

and applicable legal standards. We reverse.

C.

"An appellate court reviews an order granting summary 

judgment in accordance with the same standard as the motion 

judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (citing W.J.A. 
13 A-1949-15T4

v. D.A., 210 N.J. 229, 237-38 (2012); Henry v. N.J. Dep't of 

Human Servs., 204 N.J. 320, 330 (2010)). We "identify whether 

there are genuine issues of material fact and, if not, whether 

the moving party is entitled to summary judgment as a matter of 

law." Ibid. (citing Brill v. Guardian Life Ins. Co. of Am., 142 

N.J. 520, 540 (1995); R. 4:46-2(c)). We review the judge's 

interpretation of "the law de novo and owe no deference to the 

trial court . . . if [it has] wrongly interpreted a statute." 

Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

"The fundamental objective of statutory interpretation is 

to identify and promote the Legislature's intent." Parsons v. 

Mullica Twp. Bd. of Educ., 226 N.J. 297, 307 (2016) (citing 

State v. Gelman, 195 N.J. 475, 482 (2008)) (citing DiProspero v. 

Penn, 183 N.J. 477, 492 (2005)). "In construing any statute, we 

must give words 'their ordinary meaning and significance,' 

recognizing that generally the statutory language is 'the best 

indicator of [the Legislature's] intent.'" Tumpson v. Farina, 

218 N.J. 450, 467 (2014) (alteration in original) (quoting 

DiProspero, supra, 183 N.J. at 492). 

"However, not every statute is a model of clarity. When 

the statutory language is sufficiently ambiguous that it may be 

susceptible to more than one plausible interpretation, we may 

turn to such extrinsic guides as legislative history, including 
14 A-1949-15T4

sponsor statements and committee reports." Wilson ex rel. 

Manzano v. City of Jersey City, 209 N.J. 558, 572 (2012) (citing 

Burns v. Belafsky, 166 N.J. 466, 473 (2001)). "We may also turn 

to extrinsic guides if a literal reading of the statute would 

yield an absurd result, particularly one at odds with the 

overall statutory scheme." Ibid. (citing Burnett v. Cty. of 

Bergen, 198 N.J. 408, 424-25 (2008); State v. Provenzano, 34 

N.J. 318, 322 (1961)).

In this case, plaintiff's contention, premised upon the 

literal language of the statute, leads to an absurd result that 

ignores the historical purposes of the Survivor Act and existing 

precedent. As the Court made clear in Canino, both the WDA, 

first adopted in New Jersey in 1848, and the Survivor Act, first 

adopted in 1855, were intended to abrogate the common law maxim 

that death abated all causes of action. 96 N.J. at 191-92.7 

However, "[t]here is an elementary difference between the two 

remedies . . . ." Id. at 194. 

 

7 The Court in Canino said the WDA "created a new cause of 

action." 96 N.J. at 194 (quoting Alfone, supra, 87 N.J. at 107). 

However, in Lafage v. Jani, 166 N.J. 412, 438 (2001), the Court 

held that New Jersey recognized a cause of action for wrongful 

death at common law. The Court has since reiterated that the 

WDA created "a remedy that did not exist at common law." Beim 

v. Hulfish, 216 N.J. 484, 498 (2014) (citing Johnson v. 

Dobrosky, 187 N.J. 594, 605 (2006) (citing Negron v. Llarena, 

156 N.J. 296, 308 (1998)); Alfone, supra, 87 N.J. at 107). 
15 A-1949-15T4

One difference is that, unlike the WDA, which recognizes a 

cause of action only "[w]hen the death of a person is caused by 

a wrongful act, neglect or default," N.J.S.A. 2A:31-1, a claim 

brought under the Survivor Act need not be based on tortious 

conduct that results in death. For example, pursuant to the 

first paragraph of the Survivor Act, an executor or 

administrator may bring "an action for any trespass done to the 

person or property, real or personal," of the decedent as the 

decedent "would have [brought] if he was living." N.J.S.A.

2A:15-3 (emphasis added). 

In Canino, supra, 96 N.J. at 198, the Court recognized that 

pursuant to N.J.S.A. 2A:15-3, a cause of action for libel or 

slander was not abated by the claimant's death and could be 

prosecuted by his executrix. Similarly, in Fricke v. Geladaris, 

Inc., 221 N.J. Super. 49, 50 (App. Div. 1987), we held that a 

malicious prosecution claim did not abate upon death and was 

actionable under the Survivor Act. 

Under the construction of the Survivor Act urged by 

plaintiff, a libel, slander or malicious prosecution that 

occurred during the decedent's life would be actionable decades 

after the offending conduct, as long as it was filed within two 

years of death. Indeed, under plaintiff's interpretation of the 

2009 Amendment, an action for personal injury that never 
16 A-1949-15T4

resulted in death would be actionable decades later if brought 

by a plaintiff's estate within two years of his or her death. 

We are certain the Legislature never intended such absurd 

results when it amended the statute in 2009.

For a number of reasons, we also disagree with the motion 

judge's interpretation of the 2009 Amendment. Initially, the 

judge failed to recognize significant precedent to the contrary 

when he wrote there was no "case law to support . . . 

[defendant's] position" that prior to the 2009 Amendment, the 

Survivor Act incorporated the SOL from the underlying cause of 

action. In Soden, supra, 101 N.J.L. at 399, the court 

specifically recognized the different SOLs in the WDA and the 

Survivor Act: "It is significant . . . that the limitation 

under the [WDA] runs from the death, while under the [Survivor 

Act] the limitation runs from the time of the injury inflicted." 

In Kotkin v. Caprio, 65 N.J. Super. 453, 458 (App. Div. 1961), 

we said 

[u]nder our statutes, when the injured 

person dies as a result of the accident 

while he still has a cause of action for his 

injuries, the cause of action for his 

injuries passes to his estate, while a new 

and separate cause of action, with its own 

statute of limitations, arises in favor of 

the beneficiaries named in the [WDA]. 

[(Emphasis added).]
17 A-1949-15T4

In a case bearing some factual similarities to this, we 

held that a medical malpractice claim, filed by a decedent more 

than two years after being diagnosed with melanoma and 

prosecuted by his executrix after his death, was time-barred by 

application of the SOL contained in N.J.S.A. 2A:14-2(a). 

Silverman v. Lathrop, 168 N.J. Super. 333, 334-36 (App. Div. 

1979); see also Troum v. Newark Beth Israel Med. Ctr., 338 N.J. 

Super. 1, 27 (App. Div. 2001) (holding that the plaintiff's 

survival action was barred by the SOL where he failed to file a 

malpractice claim within two years of knowing a tainted blood 

product was administered during surgery); Lawlor v. Cloverleaf 

Mem'l Park, Inc., 101 N.J. Super. 134, 148 (Law Div. 1968) 

("[U]nder the Survival Act, an action must be commenced by the 

decedent, or his estate, within two years of the alleged 

wrongful act."), rev'd on other grounds, 106 N.J. Super. 374 

(App. Div. 1969), rev'd on other grounds, 56 N.J. 326 (1970). 

In Miller, supra, 166 N.J. at 372, the plaintiff brought a 

malpractice suit under the WDA against the doctor who had 

treated his wife more than a decade earlier. The Court 

recognized that at the time of her death, plaintiff's wife's 

malpractice suit would have been time-barred because the twoyear SOL in N.J.S.A. 2A:14-2(a) had long expired. Id. at 373-

74. In reversing the grant of summary judgment on the 
18 A-1949-15T4

plaintiff's WDA claim, the court held that "a wrongful death 

claim is an independent cause of action that cannot be 

extinguished by the failure of a decedent to maintain a medical 

malpractice action within the applicable limitations period . . 

. ." Id. at 372. In short, prior to the 2009 Amendment, our 

case law made clear that the SOL applicable to a particular 

cause of action was equally applicable to a Survivor Act claim 

maintained after death. 

We acknowledge that the motion judge thoughtfully struggled 

to give import to all the language contained in the 2009 

Amendment. See, e.g., DKM Residential Props. Corp. v. Twp. of 

Montgomery, 182 N.J. 296, 307 (2005) ("When interpreting a 

statute . . . we endeavor to give meaning to all words . . . .") 

(citing Franklin Tower One L.L.C. v. N.M., 157 N.J. 602, 613 

(1999)). He reasoned plaintiff had a potential cause of action 

under N.J.S.A. 2A:15-3 if, at the time of his death, Robert had 

a cause of action "if he had lived." The judge further reasoned 

that the 2009 Amendment defined a new SOL, i.e., plaintiff had 

two years after Robert's death to bring suit. This construction 

avoided the absurd result plaintiff urged since every claim 

brought under the Survivor Act could not be maintained unless 

two conditions were met: decedent must have possessed a viable 

claim at the time of death and suit was brought within two years 
19 A-1949-15T4

of death. However, the judge's construction nullifies existing 

SOLs found elsewhere in our statutes, ignores prior legislation 

intended to address the impact of death upon existing SOLs and 

greatly expands the Legislature's express, limited purpose for 

enacting the 2009 Amendment.

Amicus NJHA notes that, in certain cases, the judge's 

construction of the 2009 Amendment has the unintended 

consequence of nullifying SOLs contained in N.J.S.A. 2A:14-1 and 

2A:14-2. We agree. 

For example, N.J.S.A. 2A:14-1 provides in pertinent part: 

Every action at law for trespass to real 

property, for any tortious injury to real or 

personal property, for taking, detaining, or 

converting personal property, for replevin 

of goods or chattels, [or] for any tortious 

injury to the rights of another not stated 

in [N.J.S.A.] 2A:14-2 and 2A:14-3 . . . 

shall be commenced within 6 years next after 

the cause of any such action shall have 

accrued.

 

This SOL applies to numerous causes of action that are, per 

force, actionable under the Survivor Act, because they seek 

damages for a "trespass done to the person or property, real or 

personal . . . ." N.J.S.A. 2A:15-3. For example, if a 

decedent's property was flooded by his neighbor's diversion of 

storm water, pursuant to N.J.S.A. 2A:14-1, his estate would be 

required to file suit for trespass within six years of the 

event. However, under the motion judge's construction of the 
20 A-1949-15T4

2009 Amendment, if the decedent died one day before the six-year 

statue expired, his estate could file suit any time within the 

next two years, thereby effectively expanding the SOL to eightyears minus one day. 

Similarly, the SOL in personal injury actions would be 

extended in circumstances where the tortious conduct did not 

result in death. By way of example, assume the decedent is 

significantly injured in an automobile accident, but lives for 

one year and 363 days before dying from an unrelated heart 

attack. Under the judge's construction of the 2009 Amendment, 

plaintiff's executor could file suit for the injuries sustained 

by plaintiff in the car accident nearly four years after the 

event, even though N.J.S.A. 2A:14-2(a) requires suit to be filed 

within two years. 

Finally, under N.J.S.A. 2A:14-3, every action for libel or 

slander must be commenced within one year of publication of the 

libel or slander. As already noted, the Court in Canino

recognized the estate's right to pursue a survival action for 

libel or slander. Under the reasoning employed by the motion 

judge, if a plaintiff died within one year of the libelous 
21 A-1949-15T4

publication, his estate would have two more years to bring the 

action.8 

In short, the motion judge's construction of the 2009 

Amendment effectively extends the SOL applicable to numerous 

causes of action, not themselves dependent on death, based 

solely upon the happenstance of death within the limitations 

period. Such an interpretation does not serve the wellrecognized purposes of every SOL, namely "to reduce uncertainty 

concerning the timeliness of a cause of action[,]" McGrogan v. 

Till, 167 N.J. 414, 426 (2001), and "eliminat[e] stale claims 

and creat[e] repose." Sasco 1997 Ni L.L.C. v. Zudkewich, 166 

N.J. 579, 591 (2001). Nothing in the legislative history of the 

2009 Amendment suggests the Legislature intended that result.

Additionally, the judge failed to consider N.J.S.A. 2A:14-

23.1. That statute, enacted in 1977, specifically extends for 

six months after death the applicable SOL for any "cause of 

action belonging to a decedent which had not been barred as of 

the date of his death," and for any "cause of action which . . . 

would have been barred less than [six] months after death." 

 

8 The Court recently rejected an invitation to extend the oneyear SOL applicable to defamation actions on equitable grounds

and left any amendment to the Legislature. Nuwave Inv. Corp. v. 

Hyman Beck & Co., 221 N.J. 495, 500-01 (2015). It is 

inconceivable that the 2009 Amendment intended to essentially 

triple the SOL period in defamation claims. 
22 A-1949-15T4

Ibid. The legislation was intended to adopt a provision of the 

Uniform Probate Code that had been approved by the National 

Conference of Commissioners on Uniform State Laws and the 

American Bar Association, Introductory Statement to A. 1709, 

210th Leg. (Feb. 4, 2002), and serves the salutary purpose of 

providing executors and administrators with a limited period of 

time after death to evaluate potential claims available to the 

estate. 

The motion judge's interpretation of the 2009 Amendment 

would implicitly repeal N.J.S.A. 2A:14-23.1 with respect to 

every cause of action cognizable under the Survivor Act. There 

is nothing in the legislative history of the 2009 Amendment that 

indicates the Legislature intended this result. See Brewer v. 

Porch, 53 N.J. 167, 173 (1969) (noting that implied repealers 

are not favored in the law). Instead of having six months after 

death to commence a suit based on a cause of action the decedent 

possessed at death, the executor would now have two years after 

the date of death to commence the action.

As noted above, the legislative purpose for enacting the 

2009 Amendment was not to establish a new two-year SOL that 

commenced upon death for all claims brought under the Survivor 

Act. Rather, the Legislature's stated purpose was only to 

eliminate any SOL that already existed for a Survivor Act claim 
23 A-1949-15T4

in certain, limited situations, i.e., those "cases where the 

death resulted from murder, manslaughter or aggravated 

manslaughter." Statement to S. 2763, supra; see also Statement 

to A. 4158, supra, (the amendment was intended to "eliminate[e]

the [SOL] for certain actions brought under the 'Survivor[] 

Act'") (emphasis added).

Lastly, we recognize a generally accepted canon of 

statutory interpretation: "In interpreting a statute courts 

should avoid a construction that would render 'any word in the 

statute to be inoperative, superfluous or meaningless, or to 

mean something other than its ordinary meaning.'" Bergen 

Commer. Bank v. Sisler, 157 N.J. 188, 204 (1999) (quoting In re 

Estate of Post, 282 N.J. Super. 59, 72 (App. Div. 1995)). Our 

interpretation of the 2009 Amendment renders its first phrase —

"[e]very action brought under this chapter shall be commenced 

within two years after the death of the decedent, and not 

thereafter" — superfluous. N.J.S.A. 2A:15-3. However, we are 

firmly convinced this case presents a classic example where 

"[t]he spirit of the legislative direction prevails over the 

literal sense of the terms." Perrelli v. Pastorelle, 206 N.J.

193, 208 (2011) (quoting New Capitol Bar & Grill Corp. v. Div. 

of Emp't Sec., 25 N.J. 155, 160 (1957)).
24 A-1949-15T4

For the foregoing reasons, we reverse the order under 

review and remand the matter to the Law Division to enter an 

order dismissing counts three and four of the complaint with 

prejudice because they are time-barred. 

Reversed and remanded. We do not retain jurisdiction.