SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1512-20

DERRICK FOSTER,

Plaintiff-Appellant,

v. 

TROY D. FRYE and

CITY OF NEWARK,

Defendants-Respondents.

____________________________

HIPOLITO FELIX,

Plaintiff,

v. 

DERRICK FOSTER,

Defendant-Appellant,

and

DERRICK FOSTER, 

Third-Party Plaintiff,

v.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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A-1512-20

TROY D. FRYE and

CITY OF NEWARK,

Third-Party Defendants/

Respondents.

____________________________

Argued April 27, 2022 — Decided July 25, 2022

Before Judges Hoffman, Geiger, and Susswein.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Docket Nos. L-3062-20 and 

L-7029-18.

Christina Vassiliou Harvey argued the cause for 

appellant (Lomurro, Munson, Comer, Brown & 

Schottland, LLC, attorneys; Richard Galex, of counsel; 

Christina Vassiliou Harvey, of counsel and on the 

briefs).

Azeem M. Chaudry argued the cause for respondents 

Troy D. Frye and City of Newark (Kenyatta K. Stewart, 

Corporation Counsel, attorney; Emilia Perez, Assistant 

Corporation Counsel, and Azeem M. Chaudry, 

Assistant Corporation Counsel, on the brief).

PER CURIAM

Plaintiff Derrick Foster appeals a January 13, 2021 Law Division order 

granting summary judgment dismissal in favor of defendants Troy Frye and the 

City of Newark (the Newark defendants). The trial court determined that 

dismissal of Foster's automobile negligence complaint against the Newark 
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defendants was required by the plain language of N.J.S.A. 59:9-6, a provision 

of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to -14. After carefully reviewing 

the record, we are satisfied that N.J.S.A. 59:9-6 does not contemplate the 

unusual circumstances presented in this appeal. We conclude that the negotiated 

dismissal of a related counterclaim was not, in this unique context, a judgment 

or settlement for purposes of that statutory provision. We therefore vacate the 

grant of summary judgment dismissal and remand to the trial court for further 

proceedings on plaintiff's action against the Newark defendants. 

Because we presume the parties are familiar with the pertinent facts and 

procedural history, we only provide a brief summary. Foster, an off-duty 

Newark police officer, was injured in a motor vehicle accident involving an onduty Newark police officer, Frye. Frye was driving a police vehicle. Frye's 

partner, Hipolito Felix, was in the passenger seat of the police vehicle. 

The trial court found that on November 2, 2017, Frye "unexpectedly made 

an improper U-turn" while in pursuit of a suspect who Frye and Felix believed 

to be armed. The improper turn brought the police vehicle into the path of 

Foster's privately-owned vehicle, which was traveling in the opposite direction. 

Foster sustained serious injuries in the ensuing collision. 
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On October 4, 2018, plaintiff brought suit against Frye in Essex County 

Superior Court, claiming negligence, and against the city of Newark under the 

principle of respondeat superior. We refer to this suit as the "major claim." On 

March 15, 2019, the Newark defendants filed their answer.

On October 26, 2019, Felix filed a complaint against plaintiff, but not 

against Frye. We refer to this action as the "minor claim." On March 4, 2020, 

Foster filed an answer to Felix's complaint along with a third-party complaint 

against the Newark defendants, demanding contribution in the event Foster was 

found liable in the minor claim. That third-party complaint is important because 

its eventual resolution as part of the settlement of Frye's lawsuit is at the center 

of the present controversy. 

We note that Foster's interests with respect to the minor claim suit were 

represented by a different attorney than the one who represented him with 

respect to the major claim. In the original action between Foster and the Newark 

defendants, Foster was represented by a law firm that he had retained (Foster's 

counsel). With respect to the minor claim, New Jersey staff counsel for Foster's 

insurance carrier, Progressive Insurance Company (Progressive), represented 

Foster's interests as to the claims made against him by Felix, but was actually 
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defending Progressive's independent interests with respect to the minor claim. 

We therefore refer to that attorney as Progressive's counsel.

On April 8, 2020, the Newark defendants jointly moved to consolidate 

Foster v. Frye (the major claim) and Felix v. Foster (the minor claim). Foster's 

counsel opposed the consolidation. 

On April 24, 2020, the Essex County Assignment Judge entered an order 

granting the Newark defendants' motion, consolidating the two lawsuits "into a 

single action . . . for all purposes . . . [.]" Citing Moraes v. Wesler, that order 

explained that "[h]ere, consolidation is appropriate because both actions arise 

out of the same motor vehicle accident and involve the same parties. . . . Absent 

consolidation of these actions for joint resolution, there is a risk of inconsistent 

jury verdicts." 439 N.J. Super. 375, 379 (App. Div. 2015). 

The same day the consolidation order was entered, Progressive's counsel 

signed on Foster's behalf a stipulation of dismissal, with prejudice, of the minor 

claim suit. In the settlement, filed May 11, 2020, "[i]t [was] stipulated and 

agreed, by and between counsel for plaintiff, Hipolito Felix and counsel for 

defendant, Derrick Foster that this action be dismissed as to defendant, Derrick 

Foster with prejudice and without costs." The record shows that counsel 

representing the Newark defendants had proposed that the dismissal on the 
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minor case include a provision dismissing the third-party complaint against the 

Newark defendants. We add that although the stipulation purports to have been 

agreed to by counsel for Foster, in fact, the stipulation had been negotiated by 

and agreed to by Progressive's counsel. So far as the record shows, Foster's 

counsel played no role in the negotiations that resulted in the settlement of the 

minor claim. 

The resolution of the minor claim provided that Progressive would pay 

Felix a nominal amount, $3,000, in consideration for his agreement to dismiss 

his lawsuit. It also provided for the dismissal of the third-party contribution 

claim against the Newark defendants raised in response to Felix's suit against 

Foster. Foster received no compensation whatsoever from the settlement of the 

minor claim.

On April 29, 2020, a notice of dismissal against the Newark defendants 

was filed. The notice was captioned: 

HIPOLITO FELIX, Plaintiff, v. DERRICK FOSTER, 

et al. Defendants[] and DERRICK FOSTER, Third 

Party Plaintiff, v. TROY D. FRYE, JR. and CITY OF 

NEWARK, Third Party Defendants. 

The notice stated: 

Take Notice that the above Third-Party Complaint 

against Troy D. Frye, Jr. and the City Of Newark is 

hereby dismissed with prejudice and without costs." 
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The notice of dismissal was signed by an attorney serving as counsel for 

"Defendant/Third-Party Plaintiff, Derrick Foster." We reiterate and emphasize, 

however, that the attorney who signed the stipulation was Progressive's counsel, 

not Foster's counsel. So far as we can determine from the record, Foster's 

counsel played no role in the negotiations resulting in the settlement of the minor 

claim and was not noticed as to that settlement. The record shows that 

Progressive's counsel sent an email notifying Newark's counsel of the settlement 

with Felix, but Foster's counsel was not included among the email recipients. 

As we have noted, the record also shows that Newark's counsel had first 

proposed that the settlement of the minor claim include the dismissal of the 

third-party claim against the Newark defendants. 

The same day the notice of dismissal of the minor claim was filed, Felix 

signed a "Release of All Claims Relating to a Lawsuit Filed Under Docket # 

PAS-L-3380-19" in which he agreed to "give up any and all claims and rights 

which [he] may have against [Foster] that are the subject of the lawsuit . . . 

arising from an accident which occurred on [November 3, 2017], which action 

has been or will be dismissed with prejudice." On July 31, 2020, the trial court 

entered a consent order "dismissing the third-party complaint in the Passaic 

matter and transferring the Passaic matter to Essex County[.]" 
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On November 20, 2020, the Newark defendants moved for summary 

judgment in the major claim action. The issue before the trial court was whether 

the settlement dismissing with prejudice Foster's third-party contribution claim 

against the Newark defendants as part of the minor claim lawsuit precluded 

Foster from pursuing the major claim lawsuit against the Newark defendants by 

operation of N.J.S.A. 59:9-6. 

On January 13, 2021, the trial court heard oral argument on the summary 

judgment motion, at the conclusion of which the court rendered an oral ruling 

concluding that "the statute provides a complete bar to recovery to the plaintiff." 

The judge concluded that the settlement of the minor case (against Foster) means 

the major case (against the Newark Defendants) is barred by the plain language 

of N.J.S.A. 59:9-6. The court therefore found that "the notice of dismissal [of 

the minor case] is . . . a judgment on the merits that carries preclusive effect as 

to the major case [against the Newark defendants]." 

On January 13, 2021, following oral arguments, the court entered an order 

and accompanying four-page Statement of Reasons granting the Newark 

defendants' motion for summary judgment and dismissing plaintiff's complaint 

against the Newark defendants with prejudice. The statement of reasons 

explained in pertinent part: 
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The court agrees with [Newark] [d]efendants that the 

statute provides a complete bar to recovery for 

[p]laintiff. Even viewing the facts in a light most 

favorable to [p]laintiff, it cannot be said that any of 

plaintiff's arguments in opposition are enough to defeat 

the recovery bar contemplated by the statute. When 

[p]laintiff settled the claims with Hipolito Felix and 

dismissed—voluntarily—his claims against 

[d]efendants, the statute became effective, thus barring 

the claims at issue today. The two cases indeed arise 

out of the same set of operative facts, leading to the 

consolidation that was granted by Judge Floria and is 

not being challenged today. The minor case has settled 

and thus, the major case is barred under N.J.S.A. 59:9-

6.

In support of this conclusion, the court finds that 

the notice of dismissal is a judgment on the merits that 

carries preclusive effect as to the major case. Gimenez 

v. Morgan Stanley DW, Inc., 202 F. App'x 583, 584 (3d 

Cir. 2006); see also Negron v. Donna, No. CIV09-

0807(FSH)(PS), 2010 WL 10501463 at 3 (D.N.J. 

March 19, 2010). The court is not convinced by 

[p]laintiff's argument that the statute does not apply to 

third-party claims or claims for contribution and 

indemnification, or that the thrust of the statute is 

guided by an intent to prevent double recovery by a 

party. Indeed, the statute makes no distinction as to 

whether the underlying determination is in favor of the 

claimant. Plaintiff has pursued its remedy and after a 

determination on the merits (the notice of dismissal), 

this court is not willing to give it the proverbial "second 

bite at the apple."

This appeal followed. Foster raises the following contentions for our 

consideration:
10 A-1512-20

POINT I

THE TRIAL COURT'S CONSTRUCTION OF THE 

NEW JERSEY TORT CLAIMS ACT WAS 

ERRONEOUS AND VIOLATED THE PLAIN 

LANGUAGE OF THE STATUTE. 

POINT II

THE TRIAL COURT'S RELIANCE ON FEDERAL 

PRECEDENT WAS ERRONEOUS. 

POINT III

THE TRIAL COURT MISCONSTRUED THE 

ENTIRE CONTROVERSY DOCTRINE AS 

BARRING FOSTER'S CONSOLIDATED CLAIMS. 

POINT IV

THE TRIAL COURT'S CONSTRUCTION OF THE 

STATUTE IS ERRONEOUS BECAUSE IT LED TO 

AN ABSURD RESULT. 

Our review of a trial court's summary judgment order is de novo. Templo 

Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 

199 (2016) (citing Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 

(2012)). Accordingly, the trial court's analysis is not entitled to any special 

deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 

378 (1995).
11 A-1512-20

We apply the same standards as the trial court when reviewing an appeal 

of an order granting summary judgment. Walker v. Atl. Chrysler Plymouth, 

Inc., 216 N.J. Super. 255, 258 (App. Div. 1987). Summary judgment should be 

granted when the pleadings and discovery show "that there is no genuine issue 

as to any material fact challenged and that the moving party is entitled to a 

judgment or order as a matter of law." R. 4:46-2(c). A genuine issue of material 

fact exists when the discovery materials, "viewed in the light most favorable to 

the non-moving party, are sufficient to permit a rational factfinder to resolve the 

alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life 

Ins. Co. of Am., 142 N.J. 520, 540 (1995).

The Supreme Court has clearly stated that "[t]he overriding goal of all 

statutory interpretation 'is to determine as best we can the intent of the 

Legislature, and to give effect to that intent.'" State v. S.B., 230 N.J. 62, 67 

(2017) (quoting State v. Robinson, 217 N.J. 594, 604 (2014)). As a result, "[t]o 

determine the Legislature's intent, we look to the statute's language and give 

those terms their plain and ordinary meaning because 'the best indicator of that 

intent is the plain language chosen by the Legislature[.]'" State v. J.V., 242 N.J. 

432, 442–43 (2020) (first citing DiProspero v. Penn, 183 N.J. 477, 492 (2005); 

and then quoting Johnson v. Roselle EZ Quick, LLC, 226 N.J. 370, 386 (2016)). 
12 A-1512-20

Accordingly, "[i]f, based on a plain and ordinary reading of the statute, 

the statutory terms are clear and unambiguous, then the interpretative process 

ends, and we 'apply the law as written.'" Id. at 443 (quoting Murray v. Plainfield 

Rescue Squad, 210 N.J. 581, 592 (2012)). It is inappropriate for "[a] court . . . 

[to] rewrite a plainly[ ]written enactment of the Legislature [or to] presume that 

the Legislature intended something other than that expressed by way of the plain 

language." Ibid. (second alteration in original) (quoting O'Connell v. State, 171 

N.J. 484, 488 (2002)). However, "[i]f . . . the statutory text is ambiguous, 

[courts] may resort to 'extrinsic interpretative aids, including legislative history,' 

to determine the statute's meaning." Ibid. (quoting S.B., 230 N.J. at 68). 

Furthermore, "[c]ourts may also consider extrinsic evidence if a plain reading 

would lead to an absurd result or if the overall statutory scheme is at odds with 

the plain language." State v. Bishop, 429 N.J. Super. 533, 547 (App. Div. 2013)

(citing DiProspero, 183 N.J. at 493). 

N.J.S.A. 59:9-6 reads:

a. Where a claimant has pursued his [or her] remedy 

against a public entity for a claim arising out of the act 

or omission of a public employee of a public entity, a 

judgment or settlement shall be a complete bar to suit 

against the employee in a claim arising from the same 

subject matter.
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b. Where a claimant has pursued his [or her] remedy 

against a public employee for a claim arising out of the 

act or omission of a public employee of a public entity, 

a judgment or settlement shall be a complete bar to suit 

against the entity in a claim arising from the same 

subject matter.

We agree with the trial court that the language of the statute is clear and 

unambiguous. The narrow issue before us, then, is whether the resolution of the 

minor claim by settlement, which includes the dismissal of the third-party claim 

against the Newark defendants, was a judgment or settlement within the meaning 

of the statute. In these unusual circumstances, we conclude it was not because 

in practical effect, the settlement of the minor claim was between Felix and 

Progressive and because Foster's own attorney did not participate in the 

settlement negotiations to represent his interests, which were independent of the 

interests of the insurance carrier.1 

1

 We note that neither party asserts Progressive was required to obtain Foster's 

approval to settle the minor claim. See Am. Home Assur. Co., Inc. v. Hermann's 

Warehouse Corp., 117 N.J. 1, 7, 10 (1989) (holding that, although "[t]he nature 

of the relationship . . . require[s] an insurer to exercise good faith in its dealings 

with the insured, particularly when the insured's money or other interests—for 

example, reputation—may be at risk[,]" where policy includes no consent to 

settle clause, insurer does not violate duty of good faith simply by settling claim 

without consent of insured); see also Webb v. Witt, 379 N.J. Super. 18, 35 (App. 

Div. 2005) (concluding that "so long as the insurer does not procure a settlement 

in bad faith, it has not violated its fiduciary duties to its insureds solely by 

adherence to a policy that does not employ a consent to settle clause."). 
14 A-1512-20

Although the major and minor claims in this case were consolidated "for 

all purposes," we do not believe N.J.S.A. 59:9-6 provides that a lawsuit brought 

by an individual against a government entity is precluded by a settlement or 

judgment pertaining to another lawsuit arising from the same incident that was 

settled by an insurance carrier pursuant to negotiations that protected only its 

own independent interests and where those settlement negotiations did not 

include the attorney representing the individual who brought the primary lawsuit

against the government entity. We add that, in this case, it appears that counsel 

for Newark influenced the terms of the settlement agreement between Felix and 

Progressive. 

As we see it, the quarrel in this case is not about the plain meaning of the 

statute but rather the intended effect of the consolidation of the two lawsuits and 

the impact of that consolidation on the rights of the individual who first brought 

suit against the government entity and its employee. Cf., Viviano v. C.B.S., 101 

N.J. 538, 546, 556 (1986) (relaxing the "mechanical application" of the statute 

of limitations, N.J.S.A. 2A:14-2, noting that to "do otherwise would permit 

concealment and technicality to triumph over the interests of justice"); see also

State v. Marshall, 173 N.J. 343, 354 (2002) (recognizing the Court has 
15 A-1512-20

repeatedly emphasized "[t]he importance of striking a balance between the 

competing interests of finality of judgments and fundamental fairness"). 

In this instance, we doubt that the Assignment Judge would have granted 

the motion for consolidation had he been apprised that the practical and nearly 

immediate effect of the consolidation would be to terminate the major claim or 

else discourage the independent resolution of the minor claim. Nor do we 

believe that the trial court would have accepted the settlement of the minor claim 

without soliciting input from Foster's counsel had the court been apprised that 

the immediate effect of that settlement would be to categorically preclude Foster 

from pursuing a non-frivolous negligence action against the Newark 

defendants.2 We thus conclude that the interests of justice require that we vacate 

the grant of summary judgment dismissal in favor of the Newark defendants. 

In view of our holding to vacate the order of summary judgment dismissal 

of the major claim, we need not remand for the trial court to conduct a hearing 

and to make findings on whether the motion for consolidation and the nearly 

simultaneous stipulation regarding the minor claim were deliberately structured 

2

 As we noted, the trial court stated that Frye had "unexpectedly made an 

improper U-turn" in the marked police vehicle leading to the collision. 
16 A-1512-20

by the participating attorneys to trigger N.J.S.A. 59:9-6 and thereby preclude 

Foster from pursuing the major claim. We do not retain jurisdiction.

Reversed and remanded.