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Montag v. Bergen Bluestone Co.

Decided: October 29, 1976.

JUNE B. MONTAG, PLAINTIFF,
v.
BERGEN BLUESTONE COMPANY, DEFENDANT



Pressler, J.s.c.

Pressler

[145 NJSuper Page 141] This motion for summary judgment raises a novel and narrow question of interpretation of that

provision of the New Jersey Automobile Reparation Reform Act (No-Fault Law) which requires that a plaintiff sustaining a nonpermanent soft tissue injury meet a medical expense threshold of $200 in order to maintain a liability action against the alleged tortfeasor. N.J.S.A. 39:6A-1 et seq. , 39:6A-8. The problem here presented, one of limitations, is to determine the date on which plaintiff's cause of action accrues. Is it the date of the accident or the date, if later, on which plaintiff actually incurs or is reasonably chargeable with the knowledge that she is likely to incur such medical expenses as will meet the threshold?

The factual background giving rise to this issue, as appears from the pleadings and affidavits, is relatively simple. On October 2, 1973, plaintiff June Montag was the driver of an automobile which was struck in the rear by a vehicle driven by defendant's employee. She and her two passengers were taken by ambulance to the emergency room of Hackensack Hospital and released shortly after arrival. Later that day Mrs. Montag, suffering pain in her back and neck, consulted her family physician. According to her affidavit, he treated her with muscle relaxants and diathermy on 12 occasions between October 2, 1973 and February 11, 1974, rendering a total bill for services in the amount of $125. At the time of her discharge in February 1974 she did not anticipate the necessity of any further medical treatment. She had, in fact, consulted an attorney, present counsel, shortly after the accident and was advised by him in writing, both in November 1973 and early in May 1974, that she had no cause of action for tort liability since her eligible medical expenses had not reached the $200 threshold. Late in May 1974, her pain and discomfort having become exacerbated, she consulted a chiropractor, who conducted, she says, a complete neurological and physical examination and treated her several times a week between that date and August 7, 1974, rendering a total bill of $244. On August 23, 1974 she consulted an orthopedist who rendered a bill of $50, and on

September 17, 1974 she advised her attorneys that she had incurred these additional expenses. She apparently has had no further medical attentions since the summer of 1974 for these soft tissue injuries of the neck and back.

This automobile negligence action was instituted on March 10, 1976, some two years and five months following the date of the accident but less than two years after the commencement of that separate course of treatment which resulted in the exceeding of the medical expense threshold. Defendant moved for summary judgment dismissing the complaint on the ground that the action is barred by a two-year statute of limitations which began to run on the date of the accident. It argues alternatively that plaintiff, having known of the accrual only seven or eight months after the date of the accident was, in any event, obliged to commence the action within two years after the accident date. Plaintiff's position is simply that the cause of action did not accrue for limitations purposes until she actually incurred or should have known she would incur $200 in eligible medical expenses. Since neither of those conditions occurred until May 1974, she contends that she had two full years thereafter in which to start her action and hence that the March 1976 commencement date was timely with at least two months to spare. For the reasons herein set forth, the court finds itself obliged to agree with plaintiff's contentions and, subject to the conditions hereafter stated, to deny defendant's motion.

Since the No-Fault Law itself contains no limitations provision in respect of liability actions,*fn1 it is clear that the accrual question here posed can be resolved only by resort to N.J.S.A. 2A:14-2, the general statute of limitations applicable to personal injury actions, construed in light of

the conceptual foundations and underlying policy considerations of that provision, and by an analysis of the extent to which, if at all, the tort liability exemption of N.J.S.A. 39:6A-8 purports to or was intended to modify the common law of tort liability.

N.J.S.A. 2A:14-2 provides simply and in full that:

Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued.

It is well settled, as a matter of judicial interpretation, that the date on which a cause of action accrues, and hence the date from which the statute of limitations starts to run, is the date upon which the right to institute and maintain a suit first arises. Rosenau v. New Brunswick and Gamon Meter Co. , 51 N.J. 130, 137 (1968); Fredericks v. Dover , 125 N.J.L. 288, 291 (E. & A. 1940). And see, Lutz v. Semcer , 126 N.J. Super. 288, 297 (Law Div. 1974), defining the accrual date as the date upon which "facts exist which authorize one party to maintain an action against another." It is also well settled that there are two essential elements of a cause of action based on the alleged negligence of a tortfeasor which must exist in order to make that cause of action viable and a suit based thereon maintainable, namely, the act of negligence itself and a consequential injury resulting therefrom. ...


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