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Rivera v. Prudential Property and Casualty Insurance Co.

Decided: September 24, 1986.

ANGEL RIVERA AND RAMONA RIVERA, PLAINTIFFS-RESPONDENTS,
v.
PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, SUBSIDIARY OF THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, DEFENDANT-APPELLANT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 197 N.J. Super. 34 (1984).

For affirmance -- Justices Clifford Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by Clifford, J.

Clifford

We granted certification, 101 N.J. 223 (1985), to review the Appellate Division's determination that plaintiffs' suit for personal injury protection (PIP) benefits under the New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1 to -20 (No-Fault Act), was not barred by that Act's statute of limitations, N.J.S.A. 39:6A-13.1(a). See Rivera v. Prudential Property and Casualty Ins. Co., 197 N.J. Super. 34 (1984). We reverse.

I

Plaintiffs, occupants of an automobile, were injured as the result of a two-vehicle collision of July 15, 1979. They were transported from the scene to Muhlenberg Hospital, where they were treated and released the same day. Two days thereafter,

on July 17, 1979, plaintiffs began medical treatment for the injuries they sustained in the accident.

At the time of the occurrence the Rivera vehicle was insured by defendant, Prudential Property and Casualty Insurance Company (Prudential), whose policy provided for the payment of PIP benefits, including medical expense and income continuation benefits, as required by N.J.S.A. 39:6A-4. Prudential paid the cost of medical treatment until December 21, 1979. At Prudential's request a Dr. Morton Farker examined plaintiffs on January 14, 1980. On the basis of Dr. Farker's examination report, Prudential determined that it would cease payment of any benefits in connection with the accident, and it so informed plaintiffs by letter dated February 25, 1980. Notwithstanding Prudential's termination of benefits, plaintiffs resumed treatment on or about March 31, 1980, with Dr. Mark Friedman, the same physician who had treated them immediately following the accident in July 1979. Ramona Rivera's treatment was concluded on March 3, 1982; the last available date of treatment for Angel Rivera is June 9, 1982.

Because Prudential resisted their claims for benefits on account of any expenses incurred after the Company's letter of February 25, 1980, plaintiffs filed a Complaint (Complaint I) on February 23, 1982, in Middlesex County District Court, in which they sought judgment of $4000 for medical expenses and plaintiff Ramona demanded judgment of $1000 for lost income. In due course defendant filed an answer*fn1 and served interrogatories

directed to plaintiffs' medical expense and income loss claims. Because answers to interrogatories were not forthcoming within sixty days after service, as required by Rule 4:17-4, defendant obtained an ex parte order on November 24, 1982, dismissing the Complaint, as provided by Rule 4:23-5(a).*fn2

The chronology of events following the dismissal of Complaint I was as follows:

1. On December 14, 1982, plaintiffs moved to vacate the dismissal of Complaint I. The motion was accompanied by service of some answers to interrogatories. In an affidavit relied on in support of the motion plaintiffs' attorney "responsible for the handling of" the case gave "secretarial inadvertence and neglect" as the reason for answers to interrogatories not having been "completed within the time ...


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