Before Judges Pressler, Brochin and Steinberg
The opinion of the court was delivered by: Brochin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 1998
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County
Plaintiff Rosa Aponte-Correa sued defendant Allstate Insurance Company for PIP benefits. Summary judgment was granted dismissing her complaint on the ground that it was barred by the applicable statute of limitations, N.J.S.A. 39:6A-13.1a. We reverse.
N.J.S.A. 39:6A-13.1a consists of two parts, a proviso and the language that precedes it. To facilitate our Discussion of the statute, we will refer to the language that precedes the proviso as the "first part" of the statute, and the language of the proviso as the "second part." *fn1 The first part of the statute states:
"Every action for the payment of [PIP] benefits . . . 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."
Plaintiff was injured in an automobile accident on November 22, 1992. She filed a claim, and defendant paid her bills for medical services. It made its last payment to plaintiff on December 28, 1993. The first medical services for which defendant refused to pay were provided to plaintiff on July 10, 1995. Plaintiff filed her complaint on July 24, 1996.
Plaintiff argues that her suit was filed within time because, "Where no-fault benefits have been paid, a suit for further no-fault benefits is timely if brought within four years of the date of the accident, and within two years after the oldest uncompensated expense is incurred." As to the first of these conditions for maintaining an action, it is undisputed that plaintiff's suit was commenced within four years after the date of her accident. The are two other implied premises of plaintiff's argument, both of which are contested. These are, first, that the statutory requirement to commence a PIP suit within "2 years after the injured person . . . incurs an expense" means within two years after the injured person has first incurred an uncompensated expense for medical treatment necessitated by the accident; and, secondly, that commencing the suit within four years after the accident and within two years after the first uncompensated expense makes the suit timely, even if the insurer has paid benefits and the suit, although for "further benefits," was instituted more than "2 years after the last payment of benefits," as required by the second part of the statute.
Defendant contends that the suit is barred by operation of the second part of the statute because it was commenced more than two years after the last payment of benefits to plaintiff on December 28, 1993. In other words, defendant reads the statute to mean that, if benefits have been paid prior to suit, an action for additional benefits must satisfy the timeliness criteria of the second part of the statute in order to proceed, regardless of whether or not it satisfies the timeliness criteria of the first part.
Bell v. Western Employer's Ins. Co., 173 N.J. Super. 60, 64 (App. Div. 1980), supports plaintiff's position. The Bell plaintiff was injured in an automobile accident on June 12, 1975. The defendant insurer paid her PIP benefits until January 7, 1976. But it refused to pay for necessary dental care which she received from December 1977 to August 21, 1978. The plaintiff commenced her suit on June 13, 1978.
Our opinion does not state specifically when the Bell plaintiff incurred her first expense, but it was necessarily a date prior to January 7, 1976, when the insurer made its last payment. Consequently, it is clear that although the suit was commenced within four years after the accident and within two years after the plaintiff incurred her first uncompensated expense, it was commenced more than two years ...