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Abulkhair v. Liberty Mutual Insurance Co.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 10, 2008

ASSEM A. ABULKHAIR, PLAINTIFF-APPELLANT,
v.
LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-555-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 29, 2008

Before Judges R. B. Coleman and Simonelli.

Plaintiff, Assem Abulkhair, appeals from a January 11, 2008 order granting summary judgment in favor of defendant Liberty Mutual Insurance Company and dismissing plaintiff's complaint with prejudice. In his complaint, plaintiff sought personal injury protection (PIP) benefits and property damage coverage in connection with injuries and damage sustained in an automobile accident that occurred on March 18, 1998. Finding that there are no genuine issues as to any material fact challenged and that defendant is entitled to judgment as a matter of law, we affirm. Rule 4:46-2(c); Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540 (1995).

It is undisputed that Liberty Mutual Insurance Company issued an automobile policy to plaintiff which was in effect on the date of the accident. That policy included uninsured motorist and property damage coverage in the amount of $100,000. Plaintiff received benefits under the policy, however, the last payment the insurance company made for plaintiff's medical expenses was issued on November 29, 2000.

Plaintiff filed his complaint for additional medical benefits on February 6, 2007. In this instance, the complaint to recover benefits was filed nine years after the accident and nearly seven years after the last payment of benefits. This claim was, therefore, appropriately time-barred by the statute of limitations.

Under N.J.S.A. 39:6A-13.1a, an action for benefits under an automobile insurance policy must: be commenced not later than two years after the injured person or survivor suffers a loss or incurs an expense and either knows or in the exercise of reasonable diligence should know that the loss or expense was caused by the accident, or not later than four years after the accident whichever is earlier, provided, however, that if benefits have been paid before then an action for further benefits may be commenced not later than two years after the last payment of benefits.

The primary purpose of the time limitation in this legislation is "to provide defendants a fair opportunity to defend and to prevent plaintiffs from litigating stale claims." Price v. N.J. Mfrs. Ins. Co., 182 N.J. 519, 524 (2005) (quoting W.V. Pangborne & Co., Inc. v. New Jersey Dep't of Transp., 116 N.J. 543 (1989)). However, in order to avoid potentially harsh results from a mechanical application of the time limitations, our courts have sparingly "applied equitable principles to conclude that the statute should yield to other considerations." Id. at 524 (holding insurance company's actions lulled injured party into false sense of having timely made uninsured motorist claim). Here, we find no unusual circumstances surrounding plaintiff's claim that would warrant an exemption to the statute of limitations.

Similarly, plaintiff's claim for property damage to his vehicle sustained in the accident is time-barred. The claim commenced well beyond the six-year statute of limitations provided in N.J.S.A. 2A:14-1. Pursuant to this statute, every action for trespass or injury to personal property "shall be commenced within 6 years next after the cause of any such action shall have accrued." Id. It is well settled that a cause of action only begins to accrue when the injured party discovers, or should have discovered through reasonable diligence, the grounds for a cause of action exist. Lopez v. Sawyer, 62 N.J. 267, 272 (1973). In the instant case, plaintiff does not dispute that his property damage was a direct and known result from the accident on March 18, 1998. Yet plaintiff delayed in raising a claim for nearly nine years. This certainly rises to the level of dilatoriness contemplated by our jurisprudence as needing to be deterred. Ochs v. Federal Ins. Co., 90 N.J. 108, 112 (1982) (quoting Farrell v. Votator Division of Chemetron Corp., 62 N.J. 111 (1975)).

Affirmed.

20081210

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