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Sotomayor v. Allstate Ins. Co.

Decided: May 9, 1994.

NANCY SOTOMAYOR, PLAINTIFF-APPELLANT, CROSS-RESPONDENT,
v.
ALLSTATE INSURANCE COMPANY, DEFENDANT-RESPONDENT, CROSS-APPELLANT.



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

Before Judges Brody, Stern and Keefe.

Stern

The opinion of the court was delivered by

STERN, J.A.D.

Following a non-jury trial, defendant was ordered to pay plaintiff $3,769.73 for medical services provided to her in 1990 and 1991, together with interest in the amount of $470. The trial Judge also awarded Plaintiff $4,525 in counsel fees and an additional amount for disbursements. After initially concluding that plaintiff was also entitled to $2,050 for reimbursement of expert witness fees, the trial court ultimately concluded that the expert witness fees were non-reimbursable and entered judgment accordingly. Plaintiff appeals from that portion of the judgment denying reimbursement for expert witness fees, and defendant cross appeals from that portion of the judgment denying its application for dismissal because of the statute of limitations.

Plaintiff was involved in an automobile accident in January 1988. She underwent treatment on a regular basis for several months and continued to see Dr. Arthur H. Tiger, an orthopedist, regularly until the end of the year when he concluded that no additional treatment would be beneficial at that time. Dr. Tiger also sent plaintiff to Dr. Michael G. Neuwirth at the Hospital for Joint Diseases in New York, who saw her in November 1988 and concluded that she suffered "a chronic, persistent mechanical cervical and upper back derangement" and recommended "an intensive exercise program." No surgery was recommended and Dr. Tiger joined in the recommendation for "an intensive exercise program." Plaintiff then commenced such a program.

In light of an examination conducted by defendant's expert, defendant sent plaintiff a "cutoff letter" on December 28, 1988 advising that it would no longer make "voluntary no fault payments," effective December 31, 1988. The last medical bill paid by defendant on behalf of plaintiff was on February 23, 1989 for treatment rendered by Dr. Tiger from May 17, 1988 to June 21, 1988.

Plaintiff returned to Dr. Tiger in May 1990 because of pain. A Magnetic Resonance Imaging test taken on May 3, 1990 revealed that the cervical spine was "normal." However, Dr. Tiger attributed plaintiff's neck and back pain to "the motor vehicle accident of January 15th, 1988." Plaintiff was also treated for pain between May and September 1990 by Dr. Yeh Bin Wu, an acupuncturist, who diagnosed a "cervical radiculopathy." Dr. Tiger continued to treat plaintiff periodically in 1990 and 1991. A CAT scan and myelogram were taken in 1991 after which Dr. Tiger told plaintiff "there was nothing definitive that [he] could do." His diagnosis was a "chronic persistent cervical derangement with a probable cervical radiculopathy." Bills submitted to the PIP carrier for 1990 medical services were not paid in light of the "cut off" letter.

On September 16, 1991, plaintiff filed this complaint seeking medical expenses, lost income, counsel fees and costs. Defendant

asserted a "statute of limitations" defense on the ground that the cause of action "did not accrue at any time within two years last before the commencement of this action . . . ."

The trial Judge rejected the statute of limitations defense in light of Dr. Tiger's "permanency opinion" and because "the carrier . . . could surely know of a probable reoccurrence" of medical treatment. Accordingly, the Judge awarded medical expenses. In an oral opinion on a post-judgment application, the Judge reiterated his Conclusions, found "no reasonable basis for the cut off of benefits," and therefore granted plaintiff's motion for counsel fees and interest. The Judge, however, concluded that the application for medical expert witness fees had to be denied under Velli v. Rutgers Cas. Ins. Co., 257 N.J. Super. 308, 608 ...


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