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Lienhard v. Encompass Insurance Co.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 19, 2009

DAVID LIENHARD, PLAINTIFF-APPELLANT,
v.
ENCOMPASS INSURANCE COMPANY, DEFENDANT-RESPONDENT, AND AAA MID-ATLANTIC INSURANCE COMPANY, DEFENDANT.

On appeal from Superior Court of New Jersey, Law Division, Essex County, L-9233-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically February 5, 2009

Before Judges Stern and Kimmelman.

Plaintiff appeals from an order of June 8, 2007 granting summary judgment to defendant Encompass Insurance Company because it is barred by the statute of limitations. As the matter was settled as to defendant AAA Mid-Atlantic Insurance Company, the matter is ripe for appeal.

Plaintiff seeks uninsured motorist (UM) coverage and argues "[t]he trial court erred in granting defendant's motion for summary judgment where it was on early notice of plaintiff's uninsured motorist claim, it breached its duty to its insured to give him reasonable notice of the denial of the claim, where defendant has not been prejudiced and where equitable principles require tolling the statute of limitations."

Plaintiff was a minor at the time of the accident but turned 18 eleven months after the accident of November 26, 1999. The complaint was filed on November 8, 2006, almost seven years after the accident and over six years after plaintiff turned 18, on October 3, 2000. There is no dispute that the six-year statute of limitations applied and that it began to run on his 18th birthday. See Price v. New Jersey Mfrs. Ins. Co., 182 N.J. 519, 524 (2005); Craig & Pomeroy, New Jersey Auto Insurance Law (Gann 2009) § 23:2-3(b).

Plaintiff asserts that "equitable principles of tolling" apply because Encompass was on notice and did nothing for five years after receipt of his letters in 2001. It did not deny the claim, and plaintiff asserts it had an obligation to do so but rather "lulled" plaintiff into believing there was coverage.

Plaintiff also did nothing for 4-1/2 years after sending his "second request" demand letter in December 2001 and before sending a follow-up letter on June 3, 2006. The complaint was not filed for five years after sending the December 2001 letter.

In any event, on June 7, 2006 Encompass denied the claim, within the statute of limitations. Clearly, the basis was wrong ― the statute had not run by then due to plaintiff's age. However, plaintiff did not correct the carrier in this regard and took no further action in the 4-1/2 months thereafter before the statute of limitations ran. See Price, supra, 182 N.J. at 525-27 (where plaintiff provided the documentation NJM requested and NJM did not disclaim "until after the statute of limitations expired").

We affirm the judgment.

20090219

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