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The Importance of Being on Time.

Millar v. Del Sardo, A-4388-10T1, 2012 WL 1448034 (N.J. Super. Ct. App. Div. Apr. 27, 2012) is an appeal case, concerning a grant of summary judgment to a defendant. The case touches on 2 areas of law which are commonly litigated today; worker's compensation and employment discrimination. Millar, the plaintiff hired the defendant attorney Del Sardo to file an action against her former employer after she was terminated. The attorney was retained about 2 years after the firing. In the original employment case, the Plaintiff believed Del Sardo did not include wrongful termination, and failure to accommodate her disability. Eventually all of the claims were dismissed before trial. 

Millar began working for Cablevision in 1997, but in 1999, her employment changed when she suffered a condition causing fatigue, fever, and joint pain amongst other symptoms. She was given a diagnosis which caused her to miss significant periods of work. After several periods off, Millar requested medical leave for 2 months in 2001, followed by family medical leave act which last a total of 6 months.

When the Plaintiff returned to work after the leave in October, 2001, she alleged that she was being harassed. In July 2002, a co-worker reported this behavior, and the plaintiff claimed retaliation based on Cablevision's refusal to accommodate her disability. She took additional leaves of absences throughout 2002 and 2003.

When the plaintiff returned in 2003, she needed to take another 3 month leave. When she returned, she worked for a few days, and claimed she fell on a wet floor on May 23, 2003. On May 30, 2003, her doctor sent a letter to Cablevision that the leave was requested for her illness. At the same time, Millar filled out a disability request for the state where she listed her reason for leave as the company's failure to accommodate her, as causing an exacerbation of medical problems.

On June 24, 2003, Millar sent a worker's compensation request related to the injury of stress, and working overtime. On July 3, 2003, she was terminated by Cablevision. Her claim for worker's compensation benefits was denied in November, 2003. Despite the rejection, Millar took no action to petition for review, and the statute of limitations took effect.

On June 23, 2005, Millar met with Del Sardo concerning claims against Cablevision. One week after being retained by the Millar, a complain was filed by Del Sardo against Cablevision for various sexual harassment claims. No worker's compensation claims were filed. There were no claims related to worker's compensation or failure to accommodate disability. In February, 2006, Millar's doctor alerted Del Sardo that he was diagnosing her with Post-traumatic stress disorder based on actions of 2003. Millar later received Social Security disability benefits, which were awarded in 2009, and listed the date of complete disability as May 23, 2003, the day she fell. Initially, the court dismissed the malpractice case.

In reviewing the case, the appeals court noted some of the more prevalent legal malpractice ideas. A prima facie claim requires a plaintiff to establish existence of an attorney-client relationship creating a duty of care by the defendant attorney; the breach of that duty by the defendant; and proximate causation of damages claimed by the plaintiff. Breach of duty in a claim based on an attorney's omission of a claim requires a breach of duty be shown by the plaintiff's ability to win on the unasserted claim. "The issue becomes whether the defendant-lawyer's decision to omit the claim was a reasonable exercise of professional judgment."

The court first applied these principles to Millar's assertion that Del Sardo failed to file a worker's compensation claim. If the statute of limitations had run by the time Millar first retained Del Sardo on June 23, 2005, then the failure to file the claim was excusable. InNew Jersey, a worker's compensation claim must be based on an injury suffered, which arises in connection to employment or by contracting a disease peculiar to an individual's occupation. In the accidental injury context, a claim must be filed within 2 years after the date on which the incident occurred. For the purposes of the case, the court assumed the accident where Millar fell on the floor on May 23, 2003 as the beginning of the statute of limitations running. This was 2 years and one month before she met with the defendant-attorney. The claim was time barred.

There is a discovery rule in certain classes of worker's compensation cases. For it to be triggered, the injury must then trigger a latent condition, which does not become apparent for sometime. The calculation thus begins when the person knew, or should have known of the injury. The court used the date of 2003, but also recognized that problems had existed since 2001. It is highly possible, that even in the court did not grant summary judgment, and this case would have failed at trial. Mainly because, there was ample contradictory evidence that the injury was dated from 2001,

The court also believed the failure to accommodate a disability was correctly dismissed. There was evidence that Cablevision failed to make Millar's employment more accommodating. However, becauseNew Jerseyapplies a 2 year statute of limitations, the merits of the case were not discussed by the court with more than passing language.

Mainly, this case represents the importance of being proactive. Had Millar consulted an attorney in a timely manner, she may well have been successful. In fact, her sexual harassment claim was actually settled out of court. This case should be a lesson to injured plaintiffs that every time an injury is suffered, each day that passes is one day closer to losing the chance at compensation. It would certainly be interesting to read the judge's opinions concerning the actual merits of the case. Instead, the blunt force of the statute of limitations ended Millar's chances.

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