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Still v. Ohio Casualty Insurance Co.

Decided: April 21, 1983.

DORIS STILL, PLAINTIFF-APPELLANT,
v.
THE OHIO CASUALTY INSURANCE COMPANY, DEFENDANT-RESPONDENT



On appeal from Superior Court of New Jersey, Law Division, Camden County.

Fritz, Joelson and Petrella. The opinion of the court was delivered by Fritz, P.J.A.D.

Fritz

[189 NJSuper Page 232] This appeal from a summary judgment in favor of defendant is yet another chapter in the volume of cases considering statute of limitations questions in matters arising out of claims under the New Jersey Automobile Reparation Reform Act (N.J.S.A. 39:6A-1 et seq.), commonly referred to as the No-Fault Act. As does its predecessors referred to herein, it involves consideration

of the intent of the Legislature in the enactment of N.J.S.A. 39:6A-13.1. It is a variation on the theme of Bell v. Western Employer's Ins. Co., 173 N.J. Super. 60 (App.Div.1980), and focuses upon the reserved question appearing in Ochs v. Federal Ins. Co., 90 N.J. 108, 112, n. 1 (1982). While the trial judge delivered the matter to us without any findings of fact whatsoever (see R. 4:46-2 and 1:7-4 employing the word "shall") and neglected to advise us of the reasoning he employed in reaching his conclusions except for a bare reference to Bell v. Western Employer's Ins. Co., supra (a case not on all fours with this one), we believe the determination dismissing the complaint was correct and we affirm.

Ordinarily when a trial judge neglects his duty to detail his findings of fact we remand in order that he may do what he should have done in the first place. Here, however, there seems to be no dispute respecting the dates of the significant events and the issue on appeal is limited to the statute of limitations question. Accordingly, we shall invoke R. 2:10-5 and, to the extent necessary, exercise original fact finding jurisdiction.

Plaintiff was injured on December 7, 1975. She filed a timely application for personal injury protection (PIP) benefits and was paid for expenses incurred through April 29, 1976, the last payment being made on September 24, 1976. By letter of May 24, 1976, defendant advised counsel for plaintiff that it would "afford no further PIP benefits to Doris Still, effective May 20, 1976." Plaintiff incurred further expense for prescriptions, corrective shoes, examinations and treatments, for which reimbursement was sought by a letter from counsel dated December 16, 1976. This letter indicates that nonreimbursed expenses were obtained at least as early as June 24, 1976. Defendant, having obtained a medical opinion on March 31, 1977 denying causal relationship between the accident and the nonreimbursed treatment, again declined further payment and advised plaintiff's counsel of this by letter dated April 14, 1977. More than a year and a half later, on November 28, 1978, plaintiff filed her complaint in the Superior Court.

Plaintiff relies in large part on Andrito v. Allstate Ins. Co., 161 N.J. Super. 409 (Cty.D.Ct.1978), a case probably overruled by virtue of its fundamental disagreement with Danilla v. Leatherby Ins. Co., 168 N.J. Super. 515 (App.Div.1979), particularly in view of the fact that the latter case bears the stamp of approval of the Supreme Court in Ochs v. Federal Ins. Co., supra. Ochs expressly finds unpersuasive the trial judge's agreement with plaintiff's argument "that the statute permits 'suit to be brought at any time until the expiration of the four year period following the date of the accident' and that 'the encompassed two-year period of limitations does not start to run so long as expenses are still being incurred.'" 90 N.J. at 114.

Plaintiff also seeks refuge in Bell v. Western Employer's Ins. Co., supra. (As noted above the trial judge depended solely on Bell to discuss plaintiff's complaint.) The reliance is misplaced. In Bell, suit was commenced not only within four years after the accident, but "within two years after [plaintiff's] treatment recommenced." 173 N.J. Super. at 65. Such was not the case here where plaintiff's treatment "recommenced" at least two years and five months prior to the institution of suit.

While we are not necessarily in agreement with all that is said in Bell -- and the disparity in circumstances between that case and this makes it both unnecessary and undesirable here to discuss our differences -- we agree that the proviso of N.J.S.A. 39:6A-13.1a was intended to "authorize something otherwise barred." 173 N.J. Super. at 65. In the matter before us it is undeniable that without that proviso plaintiff would have been barred by the statute. Ochs and Danilla, both supra.

The new question, then, and the one we must resolve is the intent of the proviso. We are saved from extended cerebration and exposition in this respect by virtue of the plain meaning of the words of that clause. As is observed in State v. Butler, 89 N.J. 220 (1982):

As a general rule of statutory construction, we look first to the language of the statute. If the statute is clear and ...


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