On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5748-03.
The opinion of the court was delivered by: Gilroy, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Grall and Gilroy.
This is an action against an automobile insurer for payment of personal injury protection (PIP) benefits pursuant to N.J.S.A. 39:6A-4. Plaintiff, Diana Bryant, appeals from an order entered in the Law Division on April 16, 2004, granting summary judgment in favor of the defendant, Ohio Casualty Insurance Company (Ohio), for failure of plaintiff to file her complaint within the time prescribed by N.J.S.A. 39:6A-13.1a. The issue presented is whether the limitations period under the statute is triggered by an insurer's issuance of a PIP benefit check without delivery of the check to its insured. We hold that the limitations period commences on the date the check was delivered to the insured, not the date the check was issued. Accordingly, we reverse.
On September 12, 1996, plaintiff was the operator of a motor vehicle insured by Ohio when she was injured in an automobile accident. Plaintiff filed a PIP action in the Law Division for reimbursement of unpaid medical expenses which Ohio contested.
On or about January 24, 2001, the parties reached a settlement whereby Ohio agreed to pay plaintiff $21,000 in full settlement for all outstanding medical expenses, attorney fees and costs of suit. On January 30, 2001, Ohio's counsel forwarded a letter to plaintiff's counsel, along with a form of release and stipulation of dismissal with prejudice (documents), requesting that the documents be executed and returned. The letter confirmed the terms of settlement and advised that Ohio's counsel would hold the stipulation of dismissal until receipt of the settlement check from Ohio, after which the settlement check would be forwarded to plaintiff's counsel and the stipulation of dismissal filed with the court.
On June 14, 2001, Ohio issued a settlement check payable to plaintiff and her counsel and forwarded the check to Ohio's counsel to hold in escrow pending return of the documents. Failing to receive the documents back, notwithstanding five prior written requests for their return, Ohio's counsel forwarded a letter on November 19, 2001, advising that unless the documents were returned within thirty days, Ohio intended to file a motion to enforce settlement. Plaintiff failed to respond, and Ohio filed a motion to enforce the settlement on January 30, 2002.*fn1 After receipt of the motion, plaintiff's counsel returned the executed documents to Ohio's counsel, who in turn delivered the settlement check to plaintiff's counsel under letter of February 22, 2002.
Plaintiff filed the present action on October 17, 2003, alleging that Ohio had again failed to pay PIP benefits for medical expenses incurred as a result of the September 12, 1996, automobile accident. On February 13, 2004, Ohio filed an answer denying liability and asserting the statute of limitations as an affirmative defense.
Ohio filed a motion for summary judgment on February 23, 2004, seeking dismissal of the action on the basis that the matter was time barred under N.J.S.A. 39:6A-13.1a because the complaint had been filed more than two years after June 14, 2001, the date Ohio issued the check. Plaintiff opposed the motion, arguing that the time in which she had to file her second complaint ran from February 22, 2002, the date the check was delivered to her counsel. In the alternative, plaintiff argued that she qualified for the "limited probable future treatment exception" from the statute of limitations recognized in Zupo v. CNA Ins. Co., 98 N.J. 30 (1984).
The trial court granted defendant's motion for summary judgment, ruling that the action was time barred, having been filed more than two years after June 14, 2001. The trial court held that where there is a settlement of a contested PIP claim, "the last payment of benefits" under the statute occurs when the insurer issues the settlement check, notwithstanding that the insurer continues to hold the check in escrow, provided the delay in releasing the check was through no fault of the insurer. After ruling that the action time barred, the trial court never addressed plaintiff's alternate argument that she was entitled to an exception from the statute of limitations.
On appeal plaintiff argues that the trial court erred by finding that the limitations period under N.J.S.A. 39:6A-13.1a ran from the date of issuance of the check rather than the date of its delivery, and by not addressing plaintiff's argument that she was entitled to an exception from the statute of limitations. We conclude that plaintiff's complaint was filed within the limitations period under the statute; therefore, we need not decide plaintiff's alternate argument.
Plaintiff argues that the term "payment," as used in the last phrase of the statute, should be construed to require an actual delivery of a settlement check from an insurer to its insured. Ohio, relying on Everett v. State Farm Indem. Co., 358 N.J. Super. 400 (App. Div. 2002), aff'd. o.b., 175 N.J. 567 (2003), argues that for the statute of limitations to be triggered PIP benefits do not have to be delivered but the insurer only needs to acknowledge the validity of the claim and issue a check. While we disagree with plaintiff that there must always be an actual delivery of a check ...