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Kowaleski v. Allstate Insurance Co.

Decided: February 5, 1990.

STACY A. KOWALESKI, PLAINTIFF-RESPONDENT,
v.
ALLSTATE INSURANCE CO., DEFENDANT-APPELLANT. CARMEN FERNANDEZ, PLAINTIFF-RESPONDENT, V. ALLSTATE INSURANCE CO., DEFENDANT-APPELLANT. MICHAEL A. MARRAZO, PLAINTIFF-RESPONDENT, V. ALLSTATE INSURANCE CO., DEFENDANT-APPELLANT



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

Gaulkin, Dreier and Scalera. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

Defendant Allstate Insurance Co. has appealed from three adverse summary judgments entered by two Middlesex County Superior Court judges. We have been informed that there have been several additional decisions concerning similar issues in Middlesex County and elsewhere, all unreported, consistent with and opposed to the statutory interpretation advanced by the trial judges in the cases before us. As the three cases before us all raise similar issues, we have consolidated them for the purpose of this opinion.

In each of the cases before us the respective trial judge determined that an insurer's failure to comply with the notice requirements set forth in N.J.S.A. 39:6A-5(b) acts as a bar to the insurer's right to contest payment for medical bills submitted under the Personal Injury Protection (PIP) section of defendant's automobile insurance policy. See N.J.S.A. 39:6A-4a.

In order to provide the factual basis for our interpretation of the statute, we will briefly describe the underlying facts in each of the three cases.

Kowaleski claim:

On November 2, 1984, the plaintiff, Stacy A. Kowaleski, was injured in an automobile accident. Allstate, as the servicing carrier for the New Jersey Automobile Full Insurance Under-writing Association (JUA), provided PIP coverage and paid many of plaintiff's medical bills. The problem commenced on January 21, 1986 when Ms. Kowaleski began to incur further and substantial medical expenses. On that date she consulted Ira M. Klemons, D.D.S. concerning pains she claimed to be experiencing in or near her face and neck and temporomandibular joint (TMJ). Dr. Klemons and his associate, Janet Crain, D.M.D. treated Ms. Kowaleski at the TMJ Trauma and Headache Center operated by them in Parlin, New Jersey, for TMJ problems from January 1986 to May 16, 1986. They also obtained diagnostic electromyography from Martin Feldman, M.D. Allstate asserts that discovery has revealed that they regularly referred patients to Dr. Feldman for electromyography, and that myelogram readings were rendered by Dr. Feldman or his corporation on one of four duplicated reports, all of which recommended additional treatment. Ms. Kowaleski submitted the bills to Allstate with a report indicating that her need for TMJ treatment was causally related to her November 2, 1984 car accident. Soon after receipt of most of those bills, Allstate by letter dated April 29, 1986 informed Ms. Kowaleski that she should schedule an "independent" medical exam with Robert Bonda, D.M.D. The letter informed her that Allstate's

doctor will examine you under the 'No Fault' statute. This examination is necessary in order for us to consider payment of benefits under No Fault.

Ms. Kowaleski, however, did not schedule the examination, and Allstate sent a second similar notice requesting her to call Dr. Bonda to arrange an appointment for an examination. This letter also was disregarded. By letter dated July 8, 1986 Allstate advised Ms. Kowaleski that it had suspended her

benefits pending an examination with Dr. Bonda. Finally on July 31, 1986 she submitted to the examination.

Dr. Bonda concluded that none of plaintiff's TMJ treatment was for a condition causally related to the November 2, 1984 accident. By letter dated September 3, 1986 Allstate enclosed a copy of Dr. Bonda's report and informed Ms. Kowaleski that it "will not honor any bills for treatment given by Dr. Klemons, Crain or Feldman or for any costs dealing with TMJ care."

One month later Ms. Kowaleski filed this action to compel Allstate to pay any present unpaid and future medical bills incurred as a result of her accident, as well as counsel fees, costs, and interest. Allstate timely filed its answer denying the ...


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