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Sobeck v. Centennial Insurance Co.

Decided: November 3, 1988.

LAUREN C. SOBECK, AN INFANT BY HER GUARDIAN AD LITEM, JOANNE SILVIA SOBECK AND JOANNE SILVIA SOBECK, PLAINTIFFS,
v.
CENTENNIAL INSURANCE COMPANY, DEFENDANT



Newman, J.s.c.

Newman

This case raises issues of first impression concerning the interpretation of the PIP benefit provisions of our No Fault law. N.J.S.A. 39:6A-1 et seq. The major issues projected are the applicable period of the statute of limitations under N.J.S.A. 39:6A-13.1, the entitlement to coverage for PIP benefits of an unborn child at the time of the accident and the cause and effect relationship between the stress experienced in an automobile accident and the onset of a premature birth one month later. The relative facts are as follows. The plaintiff Joanne Silvia Sobeck (hereinafter referred to as Ms. Sobeck) was in an automobile accident on November 1, 1982, when she was making a left turn to go into a parking lot of a bank. Her car was hit from behind and her abdomen struck the steering wheel. She was approximately twenty-one weeks pregnant at the time. The impact resulted in a damage estimate to her car of $210.

Ms. Sobeck was very concerned about her pregnancy and called her obstetrician Dr. Grodsky that very day. She was told to relax and elevate her feet. The next day she went to the doctor's office and saw his then associate, Dr. Rota. The examination revealed no abnormal findings. There was a fetal heartbeat and movement. However, between November 8 and November 13, Ms. Sobeck observed a number of changes with her body. She experienced pain in her lower back. She underwent orthopedic treatment for injuries to her neck. Ms. Sobeck testified that she began to feel less fetal activity after the accident. She noted that her vaginal discharge was watery. She also had a gushing sensation. She was examined again by Dr. Rota on November 14, 1982. Once again the examination

disclosed no abnormal findings. It was noted that the size of the uterus had declined three centimeters from a recording of twenty-one centimeters on October 18 to eighteen centimeters on November 14.

Her back pains got progressively worse and the fetal activity did not progress. She anticipated that she would be feeling increasing fetal activity when in fact that did not occur. On December 2, 1982, Ms. Sobeck started having contractions. Her cervix dilated to two to three centimeters when she was seen by Dr. Grodsky at the emergency room at Newton Hospital. He recognized that she was in labor. He arranged for immediate transportation to St. Joseph's Hospital where she delivered a premature child by way of a Cesarean section.

The child Lauren weighed 840 grams at birth. She experienced numerous difficulties associated with a premature birth such as respiratory distress, sepsis, intracranial hemorrhage and retinopathy. She also developed hydrocephalus requiring a ventricular peritoneal shunt. She remained in the hospital for 112 days and the expenses associated with the care, treatment and hospitalization approximate $105,000. These are the expenses that Ms. Sobeck seeks by way of PIP benefit payments.

Subsequent to the birth of her child Ms. Sobeck questioned whether or not there was any relationship between the auto accident and the premature birth. She was assured by Dr. Grodsky that there was none. She spoke to a representative of Centennial Insurance Company, Ana Wild, as to the daughter's medical expenses. She was advised that none of these expenses were covered under the policy. The company did not pay for an unborn child involved in an auto accident. As a consequence Ms. Sobeck never made a written claim for PIP benefits. She did however at the suggestion of Dr. Grodsky submit her bill for the delivery of Lauren for payment and that claim was rejected.

In March 1984 Ms. Sobeck consulted Dr. John T. Harrigan of the University of Medicine and Dentistry of New Jersey at New

Brunswick for pre-conception counselling. Knowing that she had given birth to a premature child, she was concerned about her ability to carry another child to term. She discussed the circumstances surrounding Lauren's birth with him, specifically, the car accident that had occurred one month before the birth. At this time Dr. Harrigan indicated that he believed there may be a causal connection between the auto accident and Lauren's premature birth. He needed additional information to consider the issue in a more comprehensive way. Upon further consultation and examination of relevant material, Dr. Harrigan was of a view that Ms. Sobeck suffered stress as a result of the accident and that such stress induced the premature birth. In February 1985 Dr. Harrigan rendered a formal opinion that the accident was causally related to Lauren's premature birth.

A law suit was filed on behalf of Lauren against her mother and the other driver involved in the accident on October 2, 1984. Lauren's mother was successful in being dismissed as a party when a summary judgment motion in that suit was granted on October 8, 1985. The present law suit seeking PIP benefits for the plaintiff Lauren Sobeck was commenced on January 2, 1986, within two years of when she first met with Dr. Harrigan and within four years of when the automobile accident occurred.

The first issue raised by the defendant Centennial Insurance Company (hereinafter referred to as Centennial) is that the statute of limitations is a complete bar to this action. The operative language of the statute N.J.S.A. 39:6A-13.1 reads:

a. Every action for the payment of benefits set forth in sections 4 and 10 of this act, except an action by decedent's estate, shall be commenced not later than 2 years after the injured person or survivor suffers a loss or incurs an expense and either knows or in the exercise of reasonable diligence should know that the loss or expense was caused by the accident, or not later than 4 years after the accident, whichever is earlier, provided, however, that if benefits have been paid before then an action for further benefits may be commenced not later than 2 years after the last payment of benefits.

The statutory provision in question is best described as a limited accrual type statute. In other words, an action must be

brought within four years of the date of the accident no matter what the circumstances may be. However, within that four year time frame, there is the flexibility of an accrual based claim. The proviso "either knows or in the exercise of reasonable diligence should know" constitutes standard accrual language which has been interpreted to allow a cause of action to arise when a person discovers that a claim may reasonably be pursued. See, e.g., Lopez v. Swyer, 62 N.J. 267, 272 (1973). Certainly, the inclusion of this language cannot be viewed as accidental on the Legislature's part.*fn1

Ms. Sobeck did not learn of the potential causal connection between the accident and Lauren's premature birth until March 1984. It was not until February 1985 that Dr. Harrigan rendered a formal opinion making the connection. Therefore, it follows that the time Ms. Sobeck "knew, or exercised reasonable care to know" about the causal connection was March 1984 or at the latest February 1985.

The necessity for reasonable medical information before a party may be deemed to have the requisite knowledge for accrual of a cause of action is essential. Lynch v. Rubacky, 85 N.J. 65, 69-70 (1981); Vispisiano v. Ashland Chemical Co., 107 N.J. 416 (1987); Graves v. Church & Dwight Co., Inc., 225 N.J. Super. 49 (App.Div.1988). As the court in Graves remarked:

[A] layman should not be charged with knowledge of cause and effect which he may suspect when the physicians who are treating him and who have the same factual information on which his own suspicions are based completely discount the ...


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