Discrimination Law Trumps Ban On Interest Found In Tort Claims Act

Joseph Potente was a long-term investigator for the Hudson County, New Jersey Prosecutor’s Office. In December 1993, Potente was involved in a work-related auto accident, resulting in injuries to his shoulder. He claimed and received workers’ compensation benefits.

Potente returned to work on a part-time basis, but his shoulder pain worsened and required surgery for resolution. Potente utilized vacation, sick leave, and compensatory time off in order to receive pay while out of work.

Eventually, Potente exhausted these options and requested a leave of absence. Instead, his employer terminated Potente for his inability to work.

Potente filed a lawsuit against the County alleging a violation of New Jersey’s “law against discrimination,” which has provisions similar to the federal Americans With Disabilities Act. A jury returned a verdict of $50,000 for pain and suffering damages and $200,000 in lost wages. The judge awarded Potente pre-judgment interest in the amount of $67,340.26 and attorney fees in the amount of $111,164.81.

The County challenged the verdict on, among other arguments, the claim that the award of pre-judgment interest violated New Jersey’s Tort Claims Act. The Tort Claims Act provides that “no interest shall accrue prior to the entry of judgment of any public entity or public employee.”

The Appellate Division of New Jersey’s Superior Court rejected the County’s arguments. The Court relied heavily on the legislative intent behind the law against discrimination. In enacting the Law, the Legislature stated that “the Legislature intends that such damages be available to all persons protected by this Act and that this Act shall be liberally construed in combination with other protections available under the law of this State.”

The Court concluded: “We construe this expression of legislative intent, which came several years after the enactment of the Tort Claims Act, as a clear mandate that all remedies, including pre-judgment interest, be available to all successful law against discrimination claimants, whether they prevail against a private or public entity employer.”

The County also argued the pre-judgment interest was not a common law remedy created by statute, or even one that existed under prior court decisions, but was rather created by a Court-enacted rule. The Court was unimpressed by this distinction, commenting: “Regardless, the Legislature’s liberal construction directive trumps any technicality concerning the origin of pre-judgment interest practice. It is clear that the Legislature intended to provide persons aggrieved by law against discrimination violations the usual remedies available in tort actions.”

Potente v. County of Hudson, 2005 WL 1307957 (N.J.Super. 2005).

This article appears in the July 2005 issue