On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6448-05.
The opinion of the court was delivered by: RODRÍGUEZ, A. A., P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Waugh and Newman.
Plaintiff, Ismael Cruz-Diaz, appeals from a grant of summary judgment dismissing his PIP claim against defendant, Liberty Mutual Insurance Company (Liberty Mutual), because the judge found that plaintiff's claim was time barred, pursuant to the PIP statute of limitations. N.J.S.A. 39:6A-13.1. We affirm, rejecting plaintiff's argument that payment of transportation costs to an independent medical examination (IME), which were paid by Liberty Mutual, constitute a "benefit" that extends the time when the PIP statute of limitations begins to run.
These are the salient facts. On May 23, 2000, plaintiff was injured in a motor vehicle accident. The vehicle that plaintiff was driving was struck head-on by a vehicle driven by Raymond A. Kassas and owned by Maria F. Reis. According to the police report, Kassas went through a stop sign without stopping. Plaintiff was taken to the hospital immediately after the accident. X-rays were taken and plaintiff was then released.
After the accident, plaintiff contacted his physician, Allan D. Tiedrich, M.D., complaining of pain that he believed was related to the accident. Plaintiff underwent physical therapy which did not improve his condition. Dr. Tiedrich recommended that he see a neurosurgeon, Edward M. Von Der Schmidt, M.D. Dr. Von Der Schmidt treated plaintiff for approximately six months. During that time, new X-rays were taken that revealed a fracture that was not seen in the X-rays taken immediately after the accident. In December 2001, doctors performed surgery on plaintiff's neck in order to alleviate his pain. This surgery resulted in plaintiff becoming a quadriplegic and unable to speak. Plaintiff was hospitalized for an extensive period and was eventually moved to a rehabilitation center.
At the time of the accident, plaintiff was a named insured on a motor vehicle policy issued by Liberty Mutual, which provided PIP coverage in the amount of $250,000. Plaintiff applied for PIP benefits. Liberty Mutual paid all bills submitted, in accordance with N.J.S.A. 39:6A-4 prior to the December 3, 2001 surgery. However, Liberty Mutual took the position that the surgery was related to plaintiff's extensive medical history prior to the auto accident. Plaintiff concedes that, in the early 1990s, he sustained severe back injuries. As a result, the Social Security Administration classified him as totally disabled. However, plaintiff could still function in a limited capacity. He could walk, drive, carry small packages and baby-sit his grandchild.
Liberty Mutual requested an independent medical examination (IME) to determine if plaintiff's need for neck surgery was causally related to the accident. Tech Medical Transport took plaintiff to the examination. As required by N.J.S.A. 39:6A-13(d), Liberty Mutual paid Tech Medical Transport. The last such payment was September 5, 2003. It is undisputed that these payments did not reduce plaintiff's PIP coverage nor affect his deductible.
After examining plaintiff and reviewing his medical records, Donald Frank, M.D., the independent examiner, concluded that plaintiff's neck surgery was unrelated to his accident. According to Dr. Frank, the surgery was needed to address a congenital condition. Based on this determination, Liberty Mutual denied payment of bills related to the surgery.
Up to this point, plaintiff was represented by Peter J. Hendricks, George J. Hendricks, and Hendricks and Hendricks (collectively "Hendricks Law Firm"). In February 2004, plaintiff consulted Leonard J. Tarantino, Esq., an attorney with the firm where present counsel Robert A. Vort was a partner. Tarantino met with plaintiff to discuss his PIP claims. Vort instructed Tarantino to contact Liberty Mutual to inquire when the last PIP benefits had been paid to plaintiff.
Tarantino spoke with Pia Ohe, a Liberty Mutual claims examiner. She provided a list, including the date of each payment, and information about what each payment entailed. Tarantino sent Ohe a letter documenting this conversation. That letter confirmed that "[Liberty Mutual] last paid for medical bills on April 3, 2002, and that additional PIP benefits were paid on September 10, 2002, and on September 5, 2003, to transport [plaintiff] to medical examinations."
Because plaintiff had been rendered totally disabled as a result of the December 3, 2001 surgery, in October 2004, the court appointed plaintiff's wife and one of his sons as conservators for plaintiff. On September 6, 2005,*fn1 plaintiff's conservators sued Liberty Mutual for PIP benefits. Plaintiff also sued his former attorneys, Hendricks Law Firm, for legal malpractice.
Liberty Mutual answered and moved to dismiss the claim against it, arguing that the suit was time barred under N.J.S.A. 39:6A-13.1. Plaintiff opposed the motion on three grounds: 1) the September 5, 2003, payment to Tech Medical Transport was the final PIP "benefit" paid by Liberty Mutual: therefore, that was the date the statute of limitations began to run; 2) Liberty Mutual was estopped from using a statute of limitations defense because it was Liberty Mutual's representative who told ...