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New Jersey Manufacturers Insurance Co. v. Kopecky

November 19, 2007

NEW JERSEY MANUFACTURERS INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
RICHARD J. KOPECKY, M&A VALLEY TRANSPORTATION,*FN1 RLI INSURANCE CO., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-4760-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 30, 2007

Before Judges Winkelstein and Yannotti.

Plaintiff New Jersey Manufacturers Insurance Company (NJM) appeals from a summary judgment dismissing its complaint for arbitration of its claim against defendants for reimbursement of personal injury protection (PIP) benefits plaintiff paid pursuant to an automobile insurance policy. The trial court dismissed NJM's claim on the grounds that it did not timely demand arbitration. We reverse the dismissal of the complaint as to defendant RLI Insurance Co. and affirm as to the remaining defendants.

I.

On May 25, 2004, a vehicle driven by Shafiya Samuel and owned by Letisha Bethel collided with a school bus driven by Richard Kopecky and owned by M&A Valley Transportation (M&A). Keisha Boyd was a passenger in Samuel's vehicle. Kopecky was making a left turn when he saw the vehicle driven by Samuel approaching; he stopped the bus, but Samuel collided with it. Samuel reported that Kopecky cut in front of her, causing her to collide with him.

At the time of the accident, Bethel was insured by plaintiff. Neither Samuel nor Boyd had their own automobile insurance. They were both injured in the accident, and plaintiff paid PIP benefits on their behalf under Bethel's policy - $11,606.41 for Samuel and $12,343.84 for Boyd.

Kopecky was operating the bus in the course and scope of his employment for M&A, which was insured by RLI. Plaintiff claims that on February 6, 2006, it sent a letter and PIP payment ledger to RLI requesting reimbursement for the PIP payments it made on behalf of Samuel and Boyd. Plaintiff received no response to the letter, and defendant denies having received it.

On May 24, 2006, plaintiff mailed a second request for reimbursement for the PIP payments to RLI. That same day, plaintiff sent another letter to RLI, demanding arbitration. RLI received both letters on May 31, 2006.

The parties agree that the statute of limitations expired at the end of May 25, 2006, two years from the date Samuel and Boyd filed their PIP claims. On that day, plaintiff filed a complaint in the Superior Court against Kopecky, M&A, and RLI. Plaintiff demanded reimbursement for the PIP payments; alternatively, it sought an order directing the parties to arbitration. RLI received the complaint on June 28, 2006.

On July 14, 2006, defendants moved to dismiss the complaint for failure to state a claim. RLI asserted that it did not receive notice of plaintiff's request for reimbursement or demand for arbitration until May 31, 2006, which was six days after the expiration of the two-year statute of limitations for bringing a reimbursement claim. Defendants also asserted that because RLI insured Kopecky and M&A, plaintiff could only seek reimbursement from RLI.

The trial court dismissed the claims against Kopecky and M&A because they were insured by RLI, and the relevant statute, N.J.S.A. 39:6A-9.1, only permits recovery of PIP benefits from the insurer. The court dismissed the complaint against RLI because plaintiff did not make a timely demand for arbitration. The court ruled that neither the act of mailing the demand for arbitration on May 24, 2006, nor filing the complaint on May 25, 2006, tolled the statute of limitations ...


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