On appeal from the Superior Court, Law Division, Middlesex County.
Botter, Pressler and O'Brien. The opinion of the court was delivered by Pressler, J.A.D.
This appeal raises a difficult problem of interpretation of the limitations provision of the New Jersey Automobile Reform Act (No Fault Law), N.J.S.A. 39:6A-1 et seq.; 39:6A-13.1. Concluding that plaintiff's claim for payment of medical expenses was time-barred by that statutory provision, the trial court granted defendant's motion for summary judgment dismissing the complaint. We reverse.
The record is regrettably sparse. Insofar as we can determine, plaintiff Alecia M. Zupo was struck by a motor vehicle in July 1973. Since she was a pedestrian who did not own an
automobile and was not a member of a household covered by no fault insurance, she made her claim for personal injury protection benefits (PIP) to defendant CNA Insurance Company (CNA), the liability carrier for the driver of the automobile which had hit her. She sustained serious injuries of her left ankle and foot, requiring an open reduction of fractures and eventually an ankle fusion and bone graft. It appears that she was under active treatment for these injuries until May 1975. It also appears that during this protracted period of medical attention she developed an osteomyelitic infection at the injury site which required extensive treatment. CNA paid all of the medical expenses then incurred, the last payment being made some time in 1975 after her last hospitalization.
In November 1980 plaintiff suffered a recurrence of the osteomyelitis. She returned to the orthopedic surgeon who had originally cared for her and, after the failure of an extended course of conservative treatment, she was readmitted to the hospital in May 1981 for intensive antibiotic therapy. Her claim against CNA for the medical expenses she incurred in obtaining treatment for the recurrence of the osteomyelitis was rejected by it in a written letter relying on N.J.S.A. 39:6A-13.1. This action, seeking recovery from CNA, was commenced in February 1982, some fifteen months after the onset of the recurrence of the disease.
CNA first moved for summary judgment dismissing the complaint in April 1982. The record on appeal fails to include any of the papers submitted by the parties in support of and opposition to the motion. We have only an order entered in May 1982, denying the motion and referring to an oral argument, the transcript of which we also do not have. There is thus nothing in the record to suggest the court's reason for the denial.
CNA apparently renewed its motion in July 1982. Again, the record is devoid of any documents submitted in connection with the renewal. This time, however, it appears that the motion
was considered without oral argument. It resulted in an order entered by the same judge in August 1983 granting the motion. There appear to be no reasons stated in the record for this action. The only reference in the entire record to evidence on the motion is the statement made in CNA's trial brief that "for the purpose of this motion it is conceded that the Plaintiff has chronic osteomyelitis which is causally related to the injuries she received in July 26, 1973."
The disregard by plaintiff of the appendix requirements prescribed by R. 2:5-4 would justify our dismissal of the appeal. We have opted, however, to consider its merits because of the narrowness of the issue involved and our reluctance to penalize litigants by the loss of a meritorious cause when they themselves are in no way at fault.
We gather that plaintiff's theory, as a matter of law, fact and medicine, is that osteomyelitis is an insidious disease which by its nature eludes complete eradication under the present state of the medical art. Since the carrier knew from early on in her original course of treatment that she suffered from this disease as a result of the accident, it was also chargeable with the knowledge that she would almost inevitably suffer a flare-up in the undefined future which would require medical ...