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Mosior v. Insurance Co.

Decided: January 25, 1984.

STANLEY MOSIOR, PLAINTIFF-APPELLANT,
v.
INSURANCE COMPANY OF NORTH AMERICA, DEFENDANT-RESPONDENT, AND ATLANTIC AVIATION CORPORATION, DEFENDANT



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

Michels and King. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

[193 NJSuper Page 192] The summary judgment of the Law Division dismissing the complaint of plaintiff Stanley Mosior against defendant Insurance Company of North America (INA) on the ground that the action was not commenced within the 3-year period of limitation, set forth in the group accident insurance policy issued to plaintiff's employer defendant Atlantic Aviation Corporation (Atlantic), is affirmed substantially for the reasons expressed by Judge Malech in his oral opinion of June 23, 1978. We are satisfied from our review of the record in the light of the arguments presented that summary judgment was properly

granted and that all of the issues of law raised are clearly without merit. R. 2:11-3(e)(1)(E).*fn1

We would simply emphasize that the group insurance policy under which plaintiff seeks to recover for permanent disability contained the following standard provisions:

Proofs of Loss: Written proof of loss must be furnished to the Company at its said office in case of claim for loss for which this policy provides any periodic payment contingent upon continuing loss within ninety days after the termination of the period for which the Company is liable and in case of claim for any other loss within ninety days after the date of such loss. Failure to furnish such proof within the time required shall not invalidate nor reduce any claim if it was not reasonably possible to give proof within such time, provided such proof is furnished as soon as reasonably possible.

Legal Actions: No action at law or in equity shall be brought to recover on this policy prior to the expiration of sixty days after written proof of loss has been furnished in accordance with the requirements of this policy. No such action shall be brought after the expiration of three years after the time written proof of loss is required to be furnished.

These provisions comply with the statutory mandate of N.J.S.A. 17B:27-41 and N.J.S.A. 17B:27-46, which require all policies of group health insurance to contain a 90-day proof of loss provision and a provision that "no such action shall be brought at all unless brought within three years from the expiration of the time within which proof of loss is required by the policy."

The date of loss is the critical date. Under the terms of the group insurance policy here involved, the date of loss is the date

of permanent total disability. "Permanent total disability" is defined by the policy as "the Insured's complete inability, after one year of continuous total disability . . . to engage in any substantially gainful occupation or employment for the remainder of his life."

Here the proofs established beyond reasonable dispute that the date of the loss was August of 1972. Plaintiff, in his proof of loss dated and signed August 23, 1974, stated that he ceased work on August 28, 1972 and that he would never be able to resume all or any part of his work. Submitted with this proof of loss was the attending physician's certification of Dr. Block, which indicated that plaintiff was totally disabled and unable to ever return to work as of August of 1972. Thus, the date of loss was established as August 28, 1972 when plaintiff admittedly became totally disabled. Plaintiff's proof of loss should have been furnished to INA within 90 days thereof, or on or before November 28, 1972, and suit should have been commenced thereafter by November 28, 1975. Since plaintiff did not commence this action until January 19, 1977, more than four years after the time the proof of loss was required, the trial judge properly concluded that the action was barred by the three year limitation contained in the policy.

Furthermore, plaintiff could not, and did not, create a genuine issue of material fact by later claiming that the loss did not occur until he allegedly first learned that he was totally disabled in December of 1983. Plaintiff's reliance on Dr. Block's subsequent letter of December 18, 1983 indicates only that plaintiff remained totally and permanently disabled as of that date. It does not create a disputed issue of fact as to the time when plaintiff became permanently and totally disabled sufficient to warrant the denial of summary judgment. Dr. Block's letter in no way indicates that it was not until December of 1983 that plaintiff became disabled ...


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