On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-683-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Messano.
Plaintiff John S. Baer appeals from the October 5, 2007 order that granted defendant, Prudential Life Ins. Co. n/k/a Prudential Financial, summary judgment dismissing plaintiff's complaint. Plaintiff contends that his complaint was not time-barred by the applicable statute of limitations, or by the doctrine of laches, and that the motion judge improperly applied summary judgment standards and decided the motion before any discovery had taken place. We have considered these arguments in light of the record and applicable legal standards. We affirm.
Plaintiff is the only son of Roy S. Baer and Juanita Baer.*fn1
In a complaint filed on March 12, 2007, plaintiff alleged that Roy purchased a policy of group health and life insurance in 1959 from defendant. Juanita was named beneficiary under the policy which was in the face amount of $10,000. Plaintiff claimed that he had provided defendant with "due notice and proof of death" of his parents, that he was now the beneficiary of the policy, and that defendant had refused payment. He sought judgment for the face amount of the policy "with interest from January 19, 1973," the date of Roy's death. In a second count of the complaint, plaintiff repeated the same allegations as to a second policy of insurance on Roy's life, also issued by defendant on October 1, 1968. Copies of both insurance policies were attached to the complaint, as well as plaintiff's notice of claim served upon defendant. These documents revealed that Roy had died on January 19, 1973, at the age of ninety, and Juanita died on August 10, 1977, also at the age of ninety.
Defendant answered and the parties exchanged interrogatories which plaintiff answered, though defendant never supplied its answers. On July 19, 2007, defendant moved for summary judgment. In support of the motion, defendant included the affidavit of Tamika Williams, one of its disability claims specialists. She had reviewed the 1968 policy attached to the complaint, concluded it was a group term insurance policy provided to Roy's employer, Precision Specialties, Inc. (Precision), and that its benefits were only payable if Roy was employed with the company at the time of his death. Other than to note that neither Roy's beneficiaries nor Precision had ever made a claim under the policy, Williams' search of defendant's files, which did not date back to 1973, revealed no other information. Defendant also furnished the certification of its director of group insurance, Edith J. Ewing, who concluded that the 1968 policy was merely a replacement of the earlier 1959 policy and not a separate contract for insurance.*fn2 She, too, noted that coverage under the policy was only available if Roy was employed by Precision at the time of his death.
Defendant argued that under the terms of the policy, notice of plaintiff's claim had to be made within ninety days of the insured's death. Therefore, defendant argued, plaintiff needed to bring suit "within [three] years from the expiration of the time within which proof of loss is required by the policy." N.J.S.A. 17B:27-46. Defendant contended the complaint should be dismissed as untimely.
Plaintiff opposed the motion by filing a certification in which he detailed the reason for the delay and other facts supporting his claim. Plaintiff alleged that despite his advanced age, Roy was an employee of Precision at the time of his death. Plaintiff certified that in 1968, he owned Precision, his father having started the company years earlier, and that he sold it to Warner Electric in 1969 and received a five-year employment agreement as part of the transaction. Plaintiff alleged Roy "was given a lifetime consulting plan . . . at the same time."
Plaintiff further claimed that at the time of his death, Roy was taking care of Juanita who, because she suffered from dementia, was confined to a nursing home in Ellsworth, Maine. Because of her condition, upon Roy's death Juanita was unable to provide any "assistance to anyone concerning her husband's personal and business affairs," and defendant's policy "was completely overlooked." Plaintiff alleged that it was only in August of 2006, when his son, Roy's grandson, "discovered the  policy in a box of old photographs," that he realized its existence and submitted the claim to defendant. Lastly, plaintiff certified that Juanita had never presented the policy for payment after Roy's death.
Plaintiff's counsel also furnished a certification in opposition to defendant's motion. He noted that discovery had just commenced and was not due to end "for another [six] months." He argued that "[p]laintiff need[ed] additional time to obtain information to refute the allegations of [d]efendant[.]"
Judge Marc M. Baldwin heard oral argument on defendant's motion on October 5, 2007. In addition to arguing plaintiff's claim was barred by the statute of limitations, defendant argued it was prejudiced by the passage of thirty years' time since Juanita's death, and that the doctrine of laches should apply to bar plaintiff's claim. Plaintiff countered that the policy permitted his proof of loss to be presented beyond the ninety-day period of the policy "if it was not reasonably possible to give proof within such time." He contended that given Juanita's dementia, her inability to take care of Roy's affairs upon his death, and the policy being kept in an unlikely place, i.e., in a box of old photographs, it was a question of disputed material fact whether it was "not reasonably possible" to have given notice at an earlier time. He also argued that summary judgment was not appropriate given the lack of any meaningful discovery.
Judge Baldwin, citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995), concluded that even "if you took all reasonable inferences in favor of [plaintiff]," no "reasonable jury would say, it's reasonable to not look through everything for [twenty] years[.]" Noting plaintiff's objection ...