On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Botter, King and McElroy. The opinion of the court was delivered by King, J.A.D. Botter, J.A.D. (dissenting).
[186 NJSuper Page 297] On July 22, 1977 plaintiff filed suit for personal injuries arising from a March 31, 1975 automobile accident. Defendant pleaded the two-year statute of limitations in bar. N.J.S.A. 2A:14-2. Plaintiff rejoined, claiming that defendant was equitably estopped to plead the bar of the statute.
Upon defendant's request a nonjury evidentiary hearing was held before trial by Judge McGann limited to the propriety of defendant's plea of the statute of limitations as a valid defense to the action. We conclude that this was a proper approach to the essentially equitable statute of limitations issue. See Lopez v. Swyer, 62 N.J. 267 (1973); see, also, Fitzgerald v. Wright, 155 N.J. Super. 494 (App.Div.1978).
After hearing the evidence Judge McGann concluded that equitable considerations did not obviate the defense plea that the statute had run and he dismissed the action. He concluded that defendant's agent did not intentionally lull plaintiff into sleeping on his rights. Plaintiff appeals, contending, in essence, that no reasonable view of the evidence supports the result reached. We disagree and affirm for the reasons expressed in Judge McGann's factual analysis of the proofs presented to him. While these proofs were susceptible of conflicting interpretation, his view of the facts after seeing and hearing the witnesses finds support in the record. We therefore must affirm. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-484 (1974). Unless we have "a definite conviction that the judge went so wide of the mark, a mistake must have been made," we are duty bound to accept his factual findings. State v. Johnson, 42 N.J. 146, 162 (1964).
The trial judge found plaintiff to be "an intelligent individual, well-oriented, self-possessed, able to do things well. . . There is no sense at all of incompetency involved in the case." The judge found as a fact that Lang, the independent adjuster for defendant's automobile liability carrier, who exclusively dealt with plaintiff and his mother, "never in any way told the Tantums to sue, never said don't sue, wait, wait, don't do anything, hold off. There was nothing like that." Indeed, the statute of limitations was not discussed at all by the parties. The judge further found that "in no way did Mr. Lang ever try to discourage Mr. Tantum from going to a lawyer." The judge accepted Lang's credibility when he concluded:
"[W]hen he says I [Lang] in no way mentioned settlement, I find that the probability is that this is so, that he did not mention settlement."
The carrier and Lang, Judge McGann found, consistently viewed this as a no liability case. "I think he is entitled to that view." The judge found:
That was a realistic view because as I read the statements, the case happened in a very simple way.
Mr. Binz was a friend of Mr. Tantum.
They got in Mr. Binz' car after having a meal at Mrs. Tantum's house.
They started down the road and had gone but a short distance and there was a curve and both agree that when Mr. Binz went around the curve he was doing 20 to 25 miles per hour.
Mr. Tantum was a passenger and as they went around the curve for some reason or other the door on his side opened up and he fell out of the car and was hurt, seriously hurt.
But, if you came to a trial of that and somebody said Mr. Binz is negligent, I think everyone would be left scratching their heads and say, well, what did he do wrong? He didn't close the ...