On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-2184-97.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges R. B. Coleman and Lyons.
Plaintiff Nicholas Lopez appeals from a March 16, 2007 order denying a motion to reconsider an order dated January 5, 2007 that denied plaintiff's motion to reinstate his complaint. We reverse and remand for a determination as to whether defendant would suffer demonstrable prejudice as a result of the reinstatement of the complaint.
This matter arises out of an automobile accident that occurred on May 31, 1996. Plaintiff and his wife, Theresa, filed a complaint on April 18, 1997, alleging that plaintiff suffered physical injuries as a result of the negligence of defendant Melissa Vespa who was operating a motor vehicle owned by defendant Charles T. Vespa. The complaint also alleged that Theresa suffered the loss of Nicholas's society, companionship, service and consortium. In due course, on May 6, 2003, defendants moved to stay the litigation because their automobile insurance carrier, the Home Insurance Company (Home Insurance), had been placed into rehabilitation. Thus, pursuant to an order dated May 30, 2003, the action was stayed initially for a period of ninety days. Home Insurance was then declared insolvent as of June 11, 2003. The New Jersey Property-Liability Insurance Guaranty Association (the Association) took up the administration of all Home Insurance claims, pursuant to the New Jersey Property-Liability Guaranty Association Act, N.J.S.A. 17:30A-1 to 20.*fn1
By a letter dated July 8, 2003, the Association advised plaintiff that he was required to submit his claim to his uninsured motorist (UM) carrier and to any other solvent carrier which may provide coverage for his claim before seeking coverage under the policy of an insolvent carrier such as Home Insurance. That letter further advised that "[a]ny amount recovered by [plaintiff] through coverage provided by a solvent carrier will reduce, by the same amount, any obligation the Association might otherwise have to pay statutory benefits."
Thereafter, following a status conference, the Law Division entered a November 24, 2003 order dismissing plaintiff's complaint without prejudice. That order of dismissal included the following provisions:
FURTHER ORDERED that plaintiff may re-file his Complaint at any time up to and including the thirtieth day following the conclusion of plaintiff's claim for uninsured motorist benefits, whether such claim was concluded by arbitration, or by a judgment entered in or a settlement of a lawsuit against plaintiff's uninsured motorist carrier(s), and it is
FURTHER ORDERED that any Complaint filed by plaintiff within the time period provided in the preceding paragraph shall be deemed timely and in compliance with the applicable statute of limitations.
The order also specified that it did "not act to release or waive any right, claim, or defense of the defendants which may be asserted in any Complaint" subsequently filed pursuant to the terms of the order.
Plaintiff submitted a claim for UM benefits to his insurance carrier Allstate Insurance (Allstate), and via a letter to the Association, dated February 25, 2004, plaintiff's counsel informed the Association of Allstate's intention to settle the UM claim for the full amount of available coverage, $15,000, in return for a general release. In that letter, plaintiff's counsel acknowledged that the Association would be entitled to a credit for any UM settlement, and he made a demand for the $250,000 limit of liability in the policy issued by Home Insurance to the Vespas. On July 6, 2004, plaintiff's counsel received settlement funds from Allstate for the UM claim in the amount of $15,000. He informed the Association of that development, and he periodically wrote to the Association demanding the policy limit.*fn2
Notwithstanding the provisions in the November 24, 2003 order that any complaint refiled by plaintiff within thirty days following the conclusion of his claim for UM benefits would "be deemed timely and in compliance with the applicable statute of limitations," plaintiff did not move to reinstate his complaint against defendants until November 10, 2006. In support of the motion, plaintiff's counsel certified that plaintiff's complaint alleging that defendants had rear-ended plaintiff's vehicle had been filed within the statute of limitations. He certified that after the Association took over the defense for defendant's insolvent insurer, plaintiff had pursued the UM claim under his own policy and defendants had submitted the stipulation of dismissal which was entered by the court. According to the certification of an associate of the law firm that represented plaintiff, "plaintiff's attorneys were unaware that the stipulation of dismissal contained the . . . clauses" relating to the refiling of the complaint and the thirty-day timeframe for such refiling. The associate certified that the language concerning reinstatement of the complaint was never discussed with him nor mentioned in communications from the Association during the ensuing two years when he communicated with the Association "to keep them advised of the state of the uninsured claim and to seek settlement from the Association."
The Law Division heard oral arguments on plaintiff's motion to reinstate the complaint on January 5, 2007, and it denied the motion, explaining:
[t]he defense contends that plaintiff's counsel does not base his motion on any cited case law and can only be moving forward under Court Rule 4:50-1. Defense notes that Section (d) and (e) of that rule would not apply to this case . . . . That any action for relief under [Sections (a) (b) and (c)] of the rule, must be brought within one year of the order being entered. And since this order was entered by [the prior judge] on November 24th of 2003, the one year period has elapsed. Defendant argues therefore that section (f), the catchall provision is the only one that might apply, but plaintiff is not entitled to relief under the provision because there are no exceptional circumstances present in the matter which warrant relief.
The court finds in this case there are no exceptional circumstances present in the matter which would warrant relief under the rule. Plaintiff's counsel has not provided reasons that would sufficiently ...