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Simpson v. Gallagher Bassett Insurance Services, Inc.

Superior Court of New Jersey, Appellate Division

September 24, 2013

NICHOLAS SIMPSON and COLLEEN SIMPSON, his wife, Plaintiffs-Respondents,
v.
GALLAGHER BASSETT INSURANCE SERVICES, INCORPORATED and ARCH INSURANCE COMPANY, Defendants-Appellants

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 21, 2013

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1408-12.

Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys for appellants (Jeffrey J. Czuba, of counsel; Mr. Czuba and Thaddeus J. Hubert, IV, on the briefs).

Bafundo, Porter, Borbi & Clancy, LLC, attorneys for respondents (John D. Borbi, on the brief).

Before Judges Lihotz and Ostrer.

PER CURIAM

This appeal requires us to determine whether equitable tolling of the statute of limitations, as allowed by Price v. New Jersey Manufacturers Insurance Co., 182 N.J. 519 (2005), applies where there is no evidence that the insured detrimentally relied on an insurer's investigation of a claim before the limitations period expired. We conclude that equitable tolling is not justified. Consequently, the trial court erred in denying defendants' motion to dismiss as time-barred plaintiffs' complaint seeking to compel underinsured motorist (UIM) arbitration.

I.

We discern the following facts from the record. Plaintiff Nicholas Simpson was injured in a motor vehicle accident on July 31, 2004. Simpson[1] had UIM coverage with defendant Arch Insurance Company (Arch). Although the insurance policy is not included in the record, plaintiffs allege Simpson was operating a vehicle "owned by Exceptional Medical Transport [(Exceptional)] and insured by Arch Insurance Company." Although the parties describe defendant Gallagher Basset Insurance Services (Gallagher) as Arch's third-party administrator (TPA), Gallagher stated it "administers the insurance program for Exceptional Medical Transportation, a division of the McNeil Liability Program." It also stated it was "the third-party administrator for McNeil Liability Program[.]"[2] Simpson also had $100, 000 in personal UIM coverage with State Farm Indemnity Company.

Simpson settled his claim against the tortfeasor.[3]Plaintiffs eventually filed a verified complaint and order to show cause to compel UIM arbitration on March 29, 2012, almost eight years after the accident. In response to defendants' motion to dismiss, plaintiffs argued the statute of limitations should be equitably tolled, based on Gallagher's numerous communications to plaintiffs' lawyer at the time.

We therefore turn to the facts upon which plaintiffs base their claim of equitable tolling. At some point in 2006 or 2007, plaintiffs or their attorney apparently filed a claim with Arch. We express uncertainty because no notice of claim is included in the record. However, the record includes a March 23, 2007 letter from Gallagher to Richard S. Kaser of Kaser & McHugh, P.A. Gallagher stated it was a TPA "handling claims for Exceptional, " and "[n]otice of your representation came to this office via receipt of the claim assignment from our client on March 22, 2007."[4] The claim letter included an information request, stating:

In order to give proper consideration to your client's claims, we request your cooperation in providing us with the following information:
1. A recorded statement of facts regarding the occurrence and detailing the damage from your client.
2. A list of specials and supporting documentation.
3. A medical report from the treating ...

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