On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1820-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker, R. B. Coleman and Lyons.
Plaintiff Alphonso Loffa appeals from two orders entered on September 22, 2006, one granting defendant's motion for summary judgment and the other denying plaintiff's motion for summary judgment. Defendant also appeals from an order entered on November 17, 2006 denying his motion for reconsideration.
This matter arises out of a motor vehicle accident that occurred on August 5, 1995 between plaintiff's vehicle and a vehicle owned by Allaire Limousine, Inc. (Allaire). Allaire was insured by Home State Insurance Company (Home State), which was declared insolvent on September 9, 1997.
Plaintiff carried uninsured motorist coverage in the amount of $300,000 through Motor Club of America Insurance Company (MCA). On December 30, 1997, plaintiff's counsel wrote to MCA advising that plaintiff, Genevieve Loffa, had died from injuries sustained in the accident and that her administrator, Antonio Loffa, was pursuing her claim. Plaintiff's counsel further indicated that he was submitting an uninsured motorist claim on behalf of Genevieve Loffa even though he was uncertain whether any other carrier would provide coverage. Alphonso Loffa, plaintiff in this case, who was the owner of the vehicle insured by MCA and was injured in the accident, was not mentioned in the December 30, 1997 letter.
Plaintiff's next communication with MCA was a letter dated July 20, 2001, referencing both Genevieve and Alphonso Loffa*fn1 -- two weeks before the statute of limitations expired -- forwarding medical reports and documents from the Allaire lawsuit. Plaintiff's letter made no reference to the statute of limitations, nor did it explain the delay in pursuing the UM claim. On September 5, 2001 -- one month after the statute had expired -- MCA's counsel wrote to plaintiff's counsel requesting further medical records for Alphonso Loffa and authorization for release of his PIP file at "your earliest convenience so as not to cause further delay in this matter." On September 25, 2001, MCA's counsel again wrote to plaintiff's counsel requesting the medical records and authorization for release of the PIP file. On November 2, 2001, MCA's counsel advised plaintiff's counsel that he had received the PIP file and wanted to schedule plaintiff's deposition. On November 6, 2001, MCA's counsel confirmed plaintiff's deposition for November 13, 2001. The deposition actually occurred on November 14, 2001 and on January 28, 2002, Dr. Thomas Westerman, who examined plaintiff on MCA's behalf, rendered a medical report. In March 2002, an independent arbitrator was appointed but on May 1, 2002, MCA advised the arbitrator that it could not proceed with arbitration because additional medical information had not been provided by plaintiff.
For more than a year, plaintiff had no further contact with MCA. On June 17, 2003, MCA's counsel notified plaintiff's counsel that MCA would not pay the claim voluntarily because the statute of limitations had expired more than two years earlier. MCA's counsel advised plaintiff's counsel to file a verified complaint and order to show cause to compel arbitration. Rather than file the complaint, on August 28, 2003 plaintiff attempted to schedule arbitration, to which MCA's counsel responded on September 2, 2003 with a letter again advising plaintiff that discovery was not complete and to proceed by verified complaint and order to show cause. Plaintiff did not file the verified complaint and order to show cause, however, until May 2006 -- more than ten years after the accident and three years after MCA advised that it would not make a voluntary payment on the claim because the statute expired on August 5, 2001.
After hearing the summary judgment motions on September 22, 2006, the trial court observed that the six-year contract statute of limitations applied. The court noted that about two weeks before the statute was to run, the letter . . . sent by plaintiff's counsel to the defendant, forwarding copies of medical reports indicating that Motor Club's UM coverage is primary and must be exhausted before they can pursue a claim against the fund and asking a claims supervisor to review the medical reports and return a call to see if it was possible to resolve the matter on an amicable basis.
That seems to be the only thing that took place of any substance before the statute ran.
In this appeal, plaintiff argues that the trial court erred in (1) granting summary judgment; (2) denying reconsideration; (3) failing to allow oral argument on the reconsideration motion; and (4) failing to give sufficient reasons for denying reconsideration.
We have carefully considered the record in light of plaintiff's arguments and we are satisfied that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons set forth by Judge John Malone on the record of September 22, 2006 and November 16, 2006. Nevertheless, we add the following comments.
Plaintiff argues that he first indicated his intention to claim UM benefits to MCA on December 30, 1997, but defendant never mentioned the statute of limitations until June 17, 2003. Plaintiff fails to note, however, that the December 30, 1997 letter made no reference to plaintiff Alphonso Loffa and that counsel had no further contact with MCA regarding ...