On appeal from Superior Court, Law Division, Middlesex County.
Allcorn, Morgan and Horn.
[159 NJSuper Page 354] N.J.S.A. 39:6A-8, the so-called tort exemption provision of the No Fault Law, exempts defendants to whom the act applies from liability to an automobile accident victim who sustains soft tissue, nonpermanent injury for which less than $200 in medical expenses is incurred.*fn1 At issue in this appeal is the effect, if any, of this provision on the accrual date of a tort action in which, as is normal, medical expenses cross the monetary threshold barrier at some time after the date of the accident and injury. Does the tort exemption provision defer the date upon which a tort action accrues to the date monetary requirements of N.J.S.A. 39:6A-8 have been met for purposes of calculating the period of limitations within which such a suit must be brought? Trial level opinions dealing with this issue have reached contradictory results. Compare Montag v. Bergen Bluestone Co. , 145 N.J. Super. 140 (Law Div. 1976), with Rescigno v. Picinich , 151 N.J. Super. 587 (Law Div. 1977). In this appeal the complaint was dismissed on
defendant's motion because it was filed more than two years after the date on which the accidentally produced injuries were sustained, although less than two years after the monetary threshold was reached. Plaintiffs appeal.
The facts pertinent to the sole issue presented are not in dispute. On February 1, 1975 the automobile in which plaintiff owner, Fred Cappadona, was riding was struck from the side by a van owned by Robert Elias and driven by his employee, Frederick J. Eckelmann. On the day of the accident plaintiff sought medical treatment from Dr. James O'Connell for severe headaches, scalp pain, painful neck movement, loss of memory, particularly for details of the accident, pressure numbness and tightness in the head, sensitivity to bright lights, drowsiness, blurred vision, anxiety, irritability, dizziness, self-preoccupation, restlessness, seclusiveness, sadness, impatience, crankiness and short temper. Following an examination Dr. O'Connell diagnosed plaintiff's condition as a brain concussion, a cervical sprain, post-traumatic neurosis and aggravation of a preexisting arthritic condition requiring physiotherapy, chemotherapy and psychotherapy.
Thereafter, Dr. O'Connell treated plaintiff between February 3, 1975 and April 11, 1975, two or three times a week, or a total of 22 times, for which plaintiff was billed $380. According to plaintiff, a fair reading of this undated bill suggests that the $200 threshold was crossed no earlier than March 19, 1975 and argues that that date marks the accrual of plaintiff's cause of action, citing in support Montag v. Bergen Bluestone Co., supra. Hence, under plaintiff's theory, the complaint, filed February 7, 1977, more than two years after the accident but less than two years from the date as of which $200 worth of treatment was expended, was timely.
The trial judge disagreed, holding that the 22-month period following termination of plaintiff's treatment and his acquisition of knowledge that the tort exemption provision did not apply provided ample time in which suit
could have been filed. He further held that elements of plaintiff's damage claim, such as the one for post-traumatic neurosis, of which he had knowledge immediately following the accident, were not of the soft tissue type to which threshold requirements were applicable. Suit for those elements of damage could have been filed immediately.
We regard the accrual date of a cause of action based upon soft tissue injury of a nonpermanent kind to which the monetary threshold requirement for liability is applicable as being unaffected by that provision. In all such claims, the cause of action will be normally deemed to have accrued, in accordance with traditional criteria, when actual consequential damages or loss from a defendant's alleged negligence or wrongdoing are suffered. Diamond v. N.J. Bell Tel. Co. , 51 N.J. 594, 596 (1968); Biglioli v. Durotest Corp. , 44 N.J. Super. 93, 101 (App. Div. 1957). We do not discern in N.J.S.A. 39:6A-8 any suggestion that the Legislature intended the limited tort exemption therein provided to affect the normal rules for determining when a tort claim accrues. Indeed, the exemption is described as an exemption from liability, not from suit. No legal impediment precludes the filing of a complaint in tort on the day following the injury-producing accident. See Parry v. Scott , 80 Misc. 2d 1049, 364 N.Y.S. 2d 695 (Sup. Ct. 1975). True, a defendant so sued for damages resulting from the kind of injury to which the monetary threshold applies may obtain a dismissal if the threshold is not met by the time of trial. But a complaint filed before $200 in treatment of soft tissue injuries is expended, is nonetheless a valid complaint, subject, however, to dismissal before or at trial for failure to comply with the threshold requirements. Because an injury sustained as a result of a negligently caused accident is immediately actionable, it accrues on the date of the accident and, pursuant to N.J.S.A. 2A:14-2, will normally be barred if the complaint is filed later than two years from that date.
We see little to distinguish a personal injury claim surviving the threshold requirements from any other kind of similar claim. Complaints are frequently filed before the full facts regarding injury and liability are known. Indeed, rule provision has been expressly made for filing complaints against unknown defendants who, as it may turn out, may never be known. R. 4:26-5; Farrell v. Votator Div. of Chemetron Corp. , 62 N.J. 111 (1973); Lawrence v. Bauer Publishing & Printing Ltd. , 143 N.J. Super. 387 (Law Div. 1976). Complaints in federal diversity actions may and are frequently filed to avoid the bar of limitation where a plaintiff may be uncertain that the amount in controversy equals the diversity jurisdictional level. 28 U.S.C.A. § 1331. So in the cases subject to N.J.S.A. 39:6A-8, although uncertain that the threshold requirement will be met, a claimant may nonetheless file a complaint in tort realizing, however, that the claim may prove to be not actionable in the event cost of treatment fails to equal the threshold amount, at least by time of trial. A motion to dismiss a complaint so filed during a period in which treatment is continuing or where further treatment is anticipated should not be granted at that point, but either denied without prejudice or held until it is known whether the threshold amount will be realized, perhaps not until trial date. It will be only the extremely rare soft tissue case with treatment therefor not exceeding $200 in cost during a two-year period of time which will result in unforeseen serious consequences after trial date that could possibly be affected by this holding. Rearranging traditional concepts of when tort actions accrue should not turn on that rare case.
The tort exemption provision, N.J.S.A. 39:6A-8, is no more than an affirmative defense to be pleaded and proved by the party favored by it. Rescigno v. Picinich, supra , 151 N.J. Super. at 598; Fennell v. Ferreira , 133 N.J. Super. 63, 68-70 (Law Div. 1975). It is not ...