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Bell v. Western Employer''s Insurance Co.

Decided: March 26, 1980.

KATHERINE BELL, PLAINTIFF-APPELLANT,
v.
WESTERN EMPLOYER'S INSURANCE COMPANY, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Law Division, Ocean County.

Bischoff, Botter and Morton I. Greenberg. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.

Greenberg

[173 NJSuper Page 61] Plaintiff appeals from an order dismissing her complaint for dental expenses under the New Jersey Automobile Reparation

Reform Act (N.J.S.A. 39:6A-1 et seq.), generally called the No Fault Act, on the ground that her action was barred by the statute of limitations within the act. N.J.S.A. 39:6A-13.1(a). There was a dispute in the trial court on issues of the relation of the expenses to the accident and the reasonableness of the bills, but the facts on which the dismissal was based were not contested.

Plaintiff was injured in an automobile accident on June 12, 1975 while covered by an automobile policy issued by defendant or its predecessor providing for no fault benefits under the act. Plaintiff made claims for medical and dental payments under the policy and they were paid until January 7, 1976. In December 1977 plaintiff started receiving additional dental treatment for injuries she attributes to the accident. This treatment continued until August 21, 1978. A claim was made by plaintiff for payment to cover the expense of this additional treatment, but defendant denied liability. Thus, plaintiff instituted this action on June 13, 1978. Defendant pleaded the statute of limitations as one of its defenses. Plaintiff moved for summary judgment. The trial judge denied plaintiff's motion since he found that the action was barred by the statute of limitations. N.J.S.A. 39:6A-13.1(a). The judge also noted that there were factual disputes as to causation and the reasonableness of the bills. Defendant subsequently moved for summary judgment. Consistent with the prior determination, defendant's motion was granted.

N.J.S.A. 39:6A-13.1(a) provides as follows:

Every action for the payment of benefits set forth in sections 4 and 10 of this act, except an action by a decedent's estate, shall be commenced not later than 2 years after the injured person or survivor suffers a loss or incurs an expense and either knows or in the exercise of reasonable diligence should know that the loss or expense was caused by the accident, or not later than 4 years after the accident whichever is earlier, provided, however, that if benefits have been paid

before then an action for further benefits may be commenced not later than 2 years after the last payment of benefits.

Among the no fault benefits subject to this statute of limitations are medical expense benefits. N.J.S.A. 39:6A-4(a). This is defined to include dental expenses. N.J.S.A. 39:6A-2(e).

The trial judge determined that the action was barred for the following reasons. Benefits had been voluntarily paid under the policy until January 7, 1976. The action was commenced on June 13, 1978. The judge ruled that the last clause of N.J.S.A. 39:6A-13.1(a), which provides that if benefits have been paid under the policy an action for further benefits may be commenced not later than two years after the last payment, narrowed plaintiff's rights as established by the two preceding clauses of N.J.S.A. 39:6A-13.1(a). He therefore held that since plaintiff had last been paid benefits more than two years before the action was started, the new claim was barred. Defendant on this appeal adopts the same argument. Plaintiff argues that the trial judge should have followed Andrito v. Allstate Ins. Co. , 161 N.J. Super. 409 (Cty.D.Ct.1978), which held that an action for an expense is not barred if brought within four years of the accident and within two years of the incurring of the expense, even though more than two years after a benefit for a prior expense was paid.

While N.J.S.A. 39:6A-13.1(a) is not free from ambiguity, we believe that the construction reached by the trial judge was erroneous and thus we reverse. Plaintiff brought this action within two years of incurring the expense for which she seeks recovery, since the treatment started in December 1977 and the action was commenced June 13, 1978. We think that the loss or expense referred to in N.J.S.A. 39:6A-13.1(a) is the loss or expense for which recovery is sought in the action unless there had been a prior uncompensated expense attributable to the accident, in which event the loss or ...


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