46:3B-18. Submission of claims

6. a. Any person that prior to the effective date of this act had instituted a civil action to recover damages arising out of the failure of FRT plywood may submit a claim under the provisions of this act within 120 days of the effective date of the rules adopted by the commissioner that set forth an approved testing procedure or an alternate procedure for the detection of defective FRT plywood and the procedure for filing a claim hereunder. The claim shall set forth information as deemed necessary by either the commissioner or the Attorney General, including but not limited to: the caption and docket number of the civil action; the name, address and telephone number of the claimant's attorney, if any; the status of the civil action; and the status of the discovery. As part of the claim, the claimant shall submit a copy of all pleadings and orders filed in the civil action including the complaint, answers, counter-claims, cross-claims, or any amendments thereto, and any expert reports exchanged among the parties. The commissioner or the Attorney General may require the submission of other documents or information by the claimant or the claimant's attorney as may be necessary to effectuate the purposes of this section.

b. A claim filed with the commissioner pursuant to subsection a. of this section, by any person who had instituted or whose interests are being litigated in any pending civil action, shall be subject to the following reviews and determinations respectively by the commissioner and the Attorney General prior to and as a condition of the disbursement of any advance funding by the commissioner pursuant to section 3 of this act and the corresponding assignment of the claimant's rights against potentially responsible parties to the State:

(1) The Attorney General shall initially review the claim, documents and information required to be filed pursuant to subsection a. of this section to determine, in the Attorney General's discretion based on the information provided at that time and subject to further information that may be obtained or developed, whether the acceptance of any assignment of the claimant's rights against responsible parties asserted in the existing civil action would, for any one or more reasons, be impractical or otherwise contrary to the best interests of the State or the public. Such reasons warranting initial rejection of the claim by the Attorney General may include but are not limited to:

(a) if one or more co-plaintiffs in the claimant's civil action, or other aggrieved parties whose rights should have been litigated with those of the claimant in the existing action under entire controversy principles, have not themselves filed claims with the commissioner, or have had their own claims rejected by the Attorney General or the commissioner;

(b) if the court in which the civil action is pending has issued orders in, or otherwise imposed conditions on, the litigation which the Attorney General finds would be impractical or otherwise contrary to the best interests of the State or the public to accept if the claimant's rights against potentially responsible parties were assigned to the State;

(c) if all or the approved portion of the claims of the claimant in the litigation against potentially responsible parties cannot be severed from other claims in the litigation not being assigned to the State;

(d) if the testimony or other evidence that has emerged in discovery or in the investigation of the case make it impractical or otherwise contrary to the best interests of the State or the public to accept the assignment of the claimant's rights;

(e) if the claimant has presented insufficient information upon which the Attorney General can recommend the acceptance of the assignment of the claimant's rights;

(f) if it would not be cost-effective to accept the assignment and litigate the claimant's rights against potentially responsible parties; or

(g) any other reason within the discretion of the Attorney General.

The Attorney General shall not be obligated to disclose to the claimant the specific reason for the initial recommendation to reject the assignment.

(2) If the Attorney General determines in the initial review to recommend the assignment of the claimant's rights against responsible parties, the commissioner shall then review the claim in accordance with section 3 of this act.

(3) If the commissioner approves a claim in whole or in part, the Attorney General shall perform a final review of the claim, the documents required to be filed pursuant to subsection a. of this section, and any other documents or information the Attorney General deems necessary, including but not limited to the consideration of any intervening developments in the litigation, to determine in the Attorney General's discretion whether the acceptance of any assignment of the claimant's rights against responsible parties asserted in the existing civil action would, for any reasons, be impractical or otherwise contrary to the best interests of the State or the public. Such reasons warranting the final rejection of the claim by the Attorney General may include those reasons set forth in paragraph (1) of this subsection. The Attorney General shall not be obligated to disclose to the claimant the specific reason for the final rejection of the assignment.

(4) If the Attorney General determines in the final review to recommend the assignment of the claimant's rights against responsible parties, the claimant or its counsel, upon the request of the Attorney General, shall move before the court in which the civil action is pending for any or all of the following relief: a voluntary dismissal of the action or the claimant's own claims therein without prejudice; the severance of those claims approved by the Attorney General and the commissioner from other claims in the civil action; a stay of the proceedings in the action; or any other procedural relief that the Attorney General may deem appropriate. The filing of such a motion and the obtaining of the relief requested by the Attorney General shall be necessary conditions of the payment of any claim and the corresponding assignment of the claimant's rights against potentially responsible parties to the State.

(5) If the Attorney General determines in the final review to recommend the assignment of the claimant's rights to the State and the court in which the civil action is pending grants the procedural relief deemed necessary and requested by the Attorney General, the claim, if otherwise eligible for advance funding pursuant to section 3 of this act, shall be paid by the commissioner upon the assignment to the State of the claimant's rights against potentially responsible parties. As a condition of payment of the claims and the assignment of the claimant's rights to the State, the claimant and its prior counsel and any of its employees, members and agents shall cooperate with the Attorney General's pursuit of the claim or any related civil action, including, but not limited to, making available to the Attorney General all evidence or material previously gathered and expert reports obtained by the claimant or its counsel to pursue the claim, making the premises available for inspection by the Attorney General, the commissioner, or their employees or agents, and testifying in any administrative or judicial proceedings. The failure of the claimant or its counsel, employees, members or agents to cooperate fully with the Attorney General or the commissioner shall constitute a basis to deny payment of the claim and the refusal of its assignment or, in instances where the claim has already been paid and assigned, for the rescission of the assignment and the recovery by the commissioner of any monies paid by the commissioner to the claimant pursuant to this act.

(6) The Attorney General's initial recommendation to accept the assignment of a claim shall not be construed to impose any obligation on the commissioner to approve all or part of that claim unless the commissioner is satisfied that the claim meets the standards of section 3 of this act. Neither the Attorney General's initial recommendation to accept assignment of a claim, the commissioner's approval of that claim, the Attorney General's final determination to accept assignment of the claim, or the fact of the assignment itself shall be construed to require the Attorney General to file or maintain a legal action against potentially responsible parties relating to that particular claim unless the Attorney General, in the Attorney General's discretion, determines that it remains practical and in the best interests of the State and the public to do so. If the claimant's rights are assigned to the State, the Attorney General shall have the sole discretion to determine the manner in which to proceed on the claim in the existing civil action or otherwise.

(7) If the court in which the civil action is pending grants, at the request of the Attorney General, a claimant's motion for a voluntary dismissal of the action without prejudice, any subsequent action commenced by the Attorney General encompassing the claimant's rights which have been assigned to the State shall be deemed to have been commenced for purposes of the applicable statute or statutes of limitations at the time the claimant instituted the original dismissed civil action.

c. If a person that had instituted a civil action prior to the adoption of this act to recover damages arising out of the failure of FRT plywood fails to submit a timely and complete claim with the commissioner in accordance with subsections a. and b. of this section, that person may continue to pursue its civil action and such failure to submit a timely claim shall bar that person from pursuing any remedy under this act or from otherwise challenging any actions or inactions by the commissioner or the Attorney General relating to their administration of this act.

d. If the commissioner denies any claim accepted for filing under this section in full or in part, any challenge by the claimant to the commissioner's action on the claim shall be limited exclusively to the remedy and hearing procedures set forth in section 3 of this act. Neither the Attorney General's initial recommendation or final determination to accept or reject an assignment of a claim shall be subject to administrative or judicial review. Neither the commissioner's action on the claim, or the Attorney General's determination, whether preliminary or final, to accept or reject an assignment of a claim pursuant to subsection b. of this section, shall constitute a basis for the claimant or any other person or entity to make the State, the department, the commissioner, the Attorney General or any of their respective officials, employees, or agents a party to any civil action.

e. Except as set forth in subsection d. of this section, the commissioner's review and action on any claim, the initial recommendation and the final determination of the Attorney General to accept or reject an assignment of the claimant's claim, and any oral or written communications or mental processes which reflect or relate to those reviews and determinations by the commissioner and the Attorney General shall not in any way be subject to discovery or inquiry in any administrative or judicial proceedings, and any documents obtained or issued in the course of these reviews and determinations shall not constitute public records pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.) or the common law. All documents and information communicated to the Attorney General and the commissioner by the claimant or its counsel under this section shall be fully protected by all privileges applicable by statute, court rule, or common law for attorney-client communications and attorney work product, and the communication of that information to the Attorney General or the commissioner by claimant or its counsel shall not be deemed a waiver of any of those privileges and shall not provide a basis to require those communications to be disclosed to potentially responsible parties, or their counsel, or others.

L.1991,c.202,s.6.