On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Michels, Petrella and Baime. The opinion of the court was delivered by Baime, J.A.D.
[199 NJSuper Page 256] This appeal presents difficult questions pertaining to whether the limitations period imposed by N.J.S.A. 39:6A-13.1(a) under the New Jersey Automobile Reparation Reform Act (the No Fault Law), N.J.S.A. 39:6A-1 et seq., is applicable in a suit instituted against the Unsatisfied Claim and Judgment Fund to recover personal injury protection (PIP) benefits. We hold that such actions must be brought within the time periods
mandated by N.J.S.A. 39:6A-13.1(a).*fn1 Since plaintiff's complaint was filed beyond the appropriate limitations period, we would ordinarily affirm the trial judge's order granting defendants' motion for summary judgment. However, the record presents substantial questions with respect to whether defendants should be equitably estopped from claiming the benefit of the statute of limitations. These questions were not directly raised by plaintiff and hence were not addressed by the trial judge. We are, thus, constrained to remand the matter to insure full exploration of the factual issues presented.
The sparse record discloses the following facts. On December 5, 1980, plaintiff sustained serious injuries as a result of an automobile accident. At the time of the accident, plaintiff was a passenger in an automobile owned by Garcia Fernando and operated by Celedonia Sepleveda. Neither plaintiff, Fernando nor Sepleveda was insured. On January 19, 1981, plaintiff filed a notice of intention to submit a claim with the Fund pursuant to N.J.S.A. 39:6-65 and N.J.S.A. 39:6-86.5. The Fund acknowledged receipt of plaintiff's notice and in a letter dated March 13, 1981, stated that it would subsequently determine whether he was an eligible claimant. On April 7, 1981, plaintiff's attorney wrote to the Fund requesting that it "expedite assigning a file number" to the case to insure that medical care would continue. Several weeks later, the Fund provided plaintiff with
various information forms with the direction that they be completed within 20 days. The accompanying letter, dated May 1, 1981, stated that once the completed forms were received the Fund would "register" plaintiff's claim and "in all probability . . . process it." Pursuant to the Fund's request, the forms were timely mailed along with various medical bills. In the following months, plaintiff's attorney continued to send medical bills to the Fund. On August 17, 1981, Underwriters Adjusting Company, which had been assigned to handle the matter, advised plaintiff's attorney by letter that it had received the medical bills and requested various physicians' reports. In the letter, the carrier noted that "the liability aspect of [plaintiff's] claim was currently under investigation" and that he would be "advised accordingly at the conclusion" of its review. Despite this representation, the Fund never rendered a decision with respect to the efficacy of plaintiff's claim. On March 25, 1983, plaintiff filed a complaint against the Fund and the Director of the Division of Motor Vehicles. In the complaint, plaintiff sought an order declaring the Fund responsible for all medical bills and lost wages arising out of the accident. On September 19, 1983, plaintiff instituted a declaratory judgment action against Underwriters Adjusting Company and the Fund. The actions were subsequently consolidated. Defendants' motions for summary judgment were thereafter granted upon the basis that the limitations period set forth in N.J.S.A. 39:6A-13.1(a) had expired. This appeal followed.
We note at the outset that the Unsatisfied Claim and Judgment Fund Law, N.J.S.A. 39:6-61 et seq., is totally silent with respect to restrictions upon the time within which a claim must be prosecuted. See Corrigan v. Gassert, 27 N.J. 227, 235 (1958). Nevertheless, we are entirely satisfied that the provisions of the Fund Law governing recovery of PIP benefits fully incorporate the limitations period mandated by N.J.S.A. 39:6A-13.1(a).
N.J.S.A. 39:6-86.1 presently reads in pertinent part as follows:
When any person qualified to receive payments under the provisions of the 'Unsatisfied Claim and Judgment Fund Law,' suffers bodily injury or death through being struck, as a pedestrian, as defined in section 2 of P.L.1972, c. 70 (C.39:6A-2), by a motor vehicle, including an automobile as defined in section 2 of P.L.1972, c. 70 (C.39:6A-2), and a motorcycle, or by an object propelled therefrom, or arising out of an accident while occupying, entering into, alighting from, or using an automobile, registered or principally garaged in this State for which personal injury protection benefits under the 'New Jersey Automobile Reparation Reform Act,' P.L.1972, c. 70 (C.39:6A-1 et seq.), or section 19 of this 1983 amendatory and supplementary act, would be payable to such person if personal injury protection coverage were in force and the damages resulting from such accident or death are not satisfied due to the personal injury protection coverage not being in effect with respect to such accident, then in such event the Unsatisfied Claim and Judgment Fund shall provide, under the following conditions, the following benefits. . . .*fn2 (emphasis added).
In our view, the underscored statutory language evidences a clear legislative design to compel a claimant to prosecute his claim within the time period set forth in N.J.S.A. 39:6A-13.1(a). Cf. Pearman v. Unsatisfied Claim & Judg. Fd. Bd., 185 N.J. Super. 397, 401 (Law Div.1982). In order to recover from the Fund, it is incumbent upon the claimant to establish that PIP benefits would be "payable" were such coverage in force. We are ...