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Washington v. Market Transition Facility

December 3, 1996

EBBY WASHINGTON, PLAINTIFF-APPELLANT,
v.
MARKET TRANSITION FACILITY, DEFENDANT-RESPONDENT.



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

Approved for Publication December 6, 1996.

Before Judges Pressler, Stern and Humphreys. The opinion of the court was delivered by Pressler, P.j.a.d.

The opinion of the court was delivered by: Pressler

The opinion of the court was delivered by

PRESSLER, P.J.A.D.

This controversy requires us once again to address the statute of limitations prescribed by N.J.S.A. 39:6A-13.1 for the commencement of an action against an automobile insurer for payment of personal injury protection (PIP) benefits. The precise issue before us is when does the statute begin to run where the insurer makes a voluntary partial payment of medical expenses. We reject the insurer's contention where later expenses are voluntarily paid that the controlling date is the date on which the insured's oldest uncompensated expense was incurred. We hold, rather, that the triggering event is the last payment actually made. Accordingly, we reverse the summary judgment entered in favor of defendant dismissing the complaint.

The relevant facts are simple and undisputed. Plaintiff sustained soft-tissue injuries on January 23, 1993, when the automobile in which she was a passenger was struck by another vehicle. Not owning an automobile herself, and having no other source of PIP benefits, plaintiff made claim against her driver's insurer, Market Transition Facility, and HCM Insurance, its servicing carrier. Plaintiff received emergency room care immediately following the accident at St. Francis Hospital for which she was billed $408.74. She also began treating with Dr. Arthur Taubman and Hudson Physical Therapy Services, and incurred a bill from Jersey City Imaging in the amount of $950.00. Insofar as we can determine from this record, the insurer never paid the bills of St. Francis Hospital or Jersey City Imaging. It did, however, make partial payments from time to time to Dr. Taubman and Hudson Physical Therapy. The last payments to each were made on August 9, 1993, leaving a balance due to Dr. Taubman of $1,529.20 and a balance due to Hudson Physical Therapy of $4,111.00. The insurer having refused to make any additional payments, plaintiff commenced this action to recover them on June 20, 1995, less than two years after the last payment. *fn1

Defendant moved for summary judgment dismissing the complaint on statute-of-limitation grounds, taking the position that the two years permitted by N.J.S.A. 39:6A-13.1 started to run on January 23, 1993, the date on which plaintiff incurred the unpaid bill for emergency room treatment and began to treat, on a partial payment basis, with Dr. Taubman and Hudson Physical Therapy. The trial Judge rejected plaintiff's argument that since August 9, 1993, was the date of last payment, she had two years from that date in which to bring suit. The trial court reasoned as follows:

Under the statute, 39:6A-13.1, which addresses the statute of limitations for PIP claims, a suit is timely filed if brought within two years of an incurred expense or loss, and within four years of the accident. The action must be commenced within two years after the first unpaid expense has been incurred, provided that the action is started within four years.

This is the statute of limitation regardless of the date of the last reimbursement. The issue of last reimburse-ment becomes important only after the initial four-year period from the date of accident has expired. At that point, one looks to the date of last payment to extend the statute before four years. In reaching this determination, the Court has relied upon the decision in Bell v. Western [ Employer's Ins. Co., 173 N.J. Super. 60, 413 A.2d 363 (App. Div. 1980)].

The trial Judge's error derived from a confusion between the basic limitations period provided for by the statute and its extension where payments have been made. N.J.S.A. 39:6A-13.1a provides as follows:

Every action for the payment of benefits set forth in sections 4 and 10 of this act, [Sections 39:6A-4 and 39:6A-10] except an action by a 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.

As we made clear in Zupo v. CNA Ins. Co., 193 N.J. Super. 374, 379-380, 474 A.2d 259 (App. Div. 1984), affirmed o.b. as modified, 98 N.J. 30, 483 A.2d 811(1984), the statute thus addresses two fundamental and distinct situations//--that in which payments have not been made at all, and that in which at least some voluntary payments have been made. In the first situation, the statute prescribes an alternative method of calculation. First, the action for PIP benefits must be brought within two years following the plaintiff's first suffering a loss or incurring an expense that the plaintiff knows or is chargeable with knowing was caused by the accident. The statute also has a limited discovery extender for a maximum period of four years from the date of the accident if the plaintiff's knowledge or constructive knowledge is not imputable within the two-year period; but even when this extension period applies, the plaintiff must act within two years of the date of acquiring the requisite knowledge. If no action is brought within the four-year period, plaintiff is ordinarily absolutely foreclosed even if not earlier foreclosed by reason of not having acted within an earlier-expired two-year period measured from the date of knowledge. See generally Ochs v. Federal Ins. Co., 90 N.J. 108, 447 A.2d 163 (1982).

The second situation provided for by the statute is that in which some payment has been made. In that case, the statute permits the action to be brought "not later than 2 years after the last payment of benefits." The statute imposes no time limits on the commencement of the action related to the date of its occurrence or plaintiff's knowledge that the injury or loss was caused thereby. The only relevant time period is the date of the last payment, be that date five or ten or twenty years after the accident. Thus, as we explained in Zupo, (supra) , 193 N.J. ...


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