Florio, Perrucci, Steinhardt & Capelli and two attorneys from the firm are facing a malpractice suit for their representation of the New Jersey State Police and the South Jersey Transportation Authority in a suit over a traffic accident that resulted in an $8.7 million verdict.

State National Insurance Co. claims in its suit that the firm and attorneys Mark Peck and Brian Tipton were negligent in their representation of the state police and the SJTA in connection with the December 2005 crash. The malpractice suit says the Florio Perrucci attorneys failed to assert statutory immunity defenses on behalf of the state police and the SJTA in a negligence suit by Janet Henebema, whose right leg was severed in the crash on the Atlantic City Expressway.

Henebema's suit claimed negligence by SJTA dispatchers during a winter storm that resulted in a delayed police response to the crash. Her car struck the left median after she came on a group of five other vehicles that had crashed. She was initially trapped but managed to extricate herself and was standing behind her car when another vehicle came along, struck her car, and pinned her between the vehicles, causing a traumatic amputation at her right knee.

An SJTA dispatcher notified the state police on receiving a call about the first vehicle in the group striking the left guardrail and coming to rest in a travel lane. But as successive calls came in a few minutes apart about other vehicles becoming involved in a multicar crash at the scene, the operators did not update the state police about the mounting severity of the incident, Henebema's suit claimed.

A state Superior Court jury in Atlantic County awarded Henebema $9 million for her injuries. Henebema accepted a $3.5 million settlement after the Appellate Division said she was wrongly granted summary judgment.

State National provided liability coverage to the SJTA and also covered the state police under an indemnity agreement between the two agencies. It was obligated to pay all but $200,000 of the $3.5 million settlement to Henebema.

In an answer to Henebema's suit, Peck and Tipton pleaded that the defendants were entitled to statutory immunity under the Tort Claims Act, but did not specifically plead police protection immunity or 911 dispatcher immunity. The defendants later attempted to include those defenses in their answers, but Henebema refused. A trial judge ruled that the defendants could amend their answers to plead 911 dispatcher immunity, but the defendants never did so.

The SJTA and the state police appealed the subsequent jury verdict and were granted a new trial on liability because the trial judge, rather than the jury, determined that the defendants' conduct was ministerial and thus subject to a negligence standard of liability, rather than qualified immunity. The remand preserved the $9 million verdict.

The SJTA and state police retained new attorneys for the liability retrial. While preparing for trial, the SJTA and state police discovered that, although the trial court granted them leave to file amended answers pleading 911 dispatcher liability, they never did so. The SJTA and state police also discovered that they never raised their unqualified immunity under 911 dispatcher immunity or police protection immunity. The new lawyers for the SJTA and state police moved for summary judgment dismissing Henebema's claims against them under the absolute immunity of statutes granting immunity to police and 911 dispatchers.

Henebema conceded that those immunities barred her claims, but argued that the SJTA and state police waived immunity under those statutes by not pursuing or pleading them earlier.

In January 2016, a trial judge granted motions by the SJTA and state police for summary judgment based on the  immunity statutes. In December 2016, the Appellate Division reversed the trial court's grant of summary judgment, finding the defendants waived immunity by not pursuing them until the remand.

A retrial on liability was scheduled for July 8, but the SJTA and state police would lack 911 and police protection immunity. They were also constrained by negative prior testimony and admissions by witnesses, which resulted “from inadequate defense preparation by defendants,” the State National suit claims.

For example, a state police sergeant supervising the SJTA dispatchers on the day of the crash previously testified that he was unaware of standard operating procedures for using mutual aid, the suit claimed.

On April 16, State National attended a mediation with Henebema, reaching a $3.5 million settlement that allowed the insurance company to “avoid the retrial and potential litigation catastrophe,” the suit said.

State National seeks to recover reimbursement of more than $5 million, including the $3.5 million settlement, plus attorney fees and costs. The company is represented by Eliyahu Scheiman of Porzio, Bromberg & Newman in Morristown, along with J. Ric Gass and David Turek of Gass Weber Mullins in Milwaukee.

Scheiman, Peck and Tipton did not return calls seeking a comment.