Court Holds that Two Year Statute of Limitations for PIP Reimbursement Claim Begins to Run Upon the Filing of a PIP Claim Form

January 28, 2011

In an unreported Appellate Division decision, the court held that the two-year Statute of Limitations for a PIP reimbursement claim is triggered upon the submission of the PIP claim form.

N.J.S.A. 39:6A-9.1 states “an insurer… paying [PIP] benefits… or medical expense benefits … as a result of an accident occurring within this State, shall, within two years of the filing of the claim, have the right to recover the amount of payments from any tortfeasor who was not, at the time of the accident, required to maintain [PIP] protection or medical expense coverage at the time of the accident.”

On December 1, 2006, Garrison Lange was injured in an automobile accident when his vehicle was struck by a vehicle owned by Holger Trucking Company.  That day, Lange contacted his automobile insurer, New Jersey Manufacturers Insurance Group (NJM) advising of the accident and claiming he had sustained neck and back injuries.  That day, NJM created a PIP file and assigned a file number.

On December 4, 2006, the NJM adjuster mailed Lange a PIP application.  That day, Lange treated with Dr. Palluzzi.  On December 6, 2006, Dr. Palluzzi submitted bills to NJM for treatment.  On December 8, 2006, NJM received the bills.  Also on December 8, 2006, Dr. Palluzzi sent NJM a letter of medical necessity and requesting approval for a one-month treatment plan.  NJM authorized the treatment plan on December 11, 2006.

On December 20, 2006, Lange sent NJM a completed PIP application which NJM received on December 26, 2006.  It was not until December 24, 2008, that NJM filed its complaint against Holger and ARI seeking reimbursement of approximately $53,000 in PIP benefits NJM paid on Lange’s behalf.

Holger and ARI moved for Summary Judgment alleging that NJM’s suit was filed more than two years after Lange first advised NJM of the accident and more than two years after NJM opened its PIP  file.   NJM argued that the suit was timely filed because it did not receive Lange’s formal PIP application until December 26, 2006.  The trial court agreed with NJM and denied defendant’s motion.  On appeal, the Appellate Division noted that the statute does not define what is meant by “the claim.”  The court focused on the Legislatures’ use of the definite article in reference to the submission of “the claim” as the event triggering the running of the statute of limitations.  Accordingly, the court found that the Legislature likely intended to mean a single, definitive event and not any of a series of events in defining “the claim.”  The court also noted the very nature of the undertaking, (i.e., the fixing of the moment upon which the limitations period begins to run) suggests a need to provide the parties with a clear and unambiguous understanding of which of any number of occurrences is the triggering event for the statute of limitations.  The court placed significant emphasis on the fact that the Legislature described that event as the filing of “the claim” and not “a claim.”

The court then examined whether “the claim” meant the first claim (the initial telephone call); the last claim (last request for payment from a health care provider) or “the claim that is different from all others, namely, the insured’s PIP application.”  In focusing on the Legislature’s intent to fix one particular, distinguishable event as the trigger for the limitations period, the court concluded that the submission of the PIP claim form triggers the two-year Statute of Limitations.

What is interesting about the decision is that the court noted, “We are concerned by the fact – as the parties recognize – that the policy in question and perhaps others like it, do not require that an insured ever submit a PIP claim form; nor do the no fault laws compel such a filing.  As a result, the event we assume to be the triggering event for the time within which a reimbursement suit must be commenced may be something that, in many cases, may never occur.” The court then noted that “we take comfort in knowing that the Legislature is fully capable of correcting the statute’s ambiguity if it believes we have erroneously interpreted the statute.”

— Tom Reardon, Esq.

Reardon Anderson is a Tinton Falls, New Jersey based law firm which represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.

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NJ Court Finds that a Church Van Is Not An Automobile for PIP Purposes

January 19, 2011

The Appellate Division has ruled that a multi-passenger van owned by a church and utilized to transport members to and from services is not an “automobile” for the purpose of recovering PIP benefits.

In this matter, Jose Perez was involved in an accident on April 3, 2009, while driving a fifteen person van owned by Iglesia Pentecostal Roca de Salvacion. At the time of the accident, Perez was driving member of his family and several other church members to services. Perez has been driving the van for the church for the past ten years. The van was insured under a commercial policy issued by Farmers Mutual. This policy did not provide PIP coverage. Perez had a personal automobile policy issued by Encompass Property and Casualty Insurance Company. This policy provided PIP coverage, but was only applicable to “bodily injury…caused by an accident arising out of the ownership, maintenance or use…of an auto as an automobile.”

As a result of the accident, the Perez family sought PIP benefits from Farmers and Encompass. Both insurers disclaimed coverage for PIP benefits. The Perezes brought a declaratory judgment action for a determination that the Farmers and Encompass policies both provided coverage for PIP benefits for the injuries sustained. The trial court determined that the van was an “automobile” under N.J.S.A. 39:6A-2 and Encompass was required to provide PIP benefits. The court further found that as Farmers issued a commercial policy, they were not required to provide PIP benefits.

On appeal, the court was required to determine whether the church van was an “automobile” under the No Fault Law. The court noted that if the van was determined to be an automobile under the law, Encompass and Farmers would be required to pay PIP benefits to the Perezes.

The court noted that N.J.S.A. 39:6A-4 provides that “every standard automobile liability insurance policy…shall contain [PIP] benefits…to the named insured and members of his family residing in his household who sustain bodily injury as a result of an accident while occupying…or using an automobile,…and to other persons sustaining bodily injury while occupying…or using the automobile of the named insured, with permission of the named insured.” Additionally, the law provides that if a policy does not conform to these requirements, it will be “deemed to be conformed with this statute.”

The definition of “automobile” under New Jersey law sets forth two categories of motor vehicles for which, subject to certain exclusions, coverage for PIP benefits are required. These categories are: (1) private passenger automobiles or station wagon type that is owned or hired and is neither used as a public or livery conveyance for passengers or rented to others with a driver; and (2) various other types of motor vehicles, including vans, owned by an individual or by a husband and wife who are residents of the same household and not regularly used in the occupation, profession or business of the insured.

In determining whether the van was to be considered an automobile, the court noted a prior decision finding that a ‘minivan” was deemed to be an automobile for the purposes of determining whether PIP benefits were available. In that case, the court found that the “minivan” was a “station wagon type” vehicle under the law, and as such the insurer owed PIP benefits.

The Appellate Division found that the church van was completely different as it had five rows of seats and was designed to carry fifteen passengers. It further noted that this type of van was more commonly used by hotels and business to transport customers. Accordingly, the court determined that the church van was not a private passenger automobile or “station wagon type” vehicle.

As such the court looked to the second definition of “automobile” under the No Fault Law and found that the vehicle was a “van”. Next, the court was required to determine if the van was “owned by an individual or by a husband and wife who are residents of the same household.” As the van was owned by the church and not the Perzes, the court found that the van did not satisfy this element of the definition of “automobile.” Accordingly, the court found that the Farmers and Encompass policies policy did not owe PIP benefits as the church van is not an “automobile” under the No Fault Law.

— Erik Anderson, Esq.

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.


Improper PowerPoint Presentation Results in a $300,000 Verdict Being Thrown Out

January 11, 2011

The Appellate Division recently vacated a $300,000 jury award in a personal injury lawsuit due to plaintiff’s counsel’s improper use of a PowerPoint presentation during his closing argument. In this matter, Anthony Romano filed a lawsuit against Michael Stubbs in connection with an altercation which occurred in the Bergen County Courthouse on February 23, 2006.

On that date, Stubbs was in court for a hearing in connection with a domestic violence complaint filed by his wife and a determination as to whether a temporary restraining order should be made permanent. While in court, an officer approached Stubbs and told him that a warrant had been issued for his arrest due to his alleged violation earlier in the day of the temporary restraining order. Romano, who was an officer in the courtroom, assisted in arresting Romano after he resisted arrest. During the altercation, Stubbs fell on top of Romano forcing Stubb’s elbow into the ground. Stubbs ultimately pled guilty to a petty disorderly persons offense for this altercation.

Romano alleged that as a result of this incident he sustained an injury to the ulnar nerve in his elbow which required surgery. Additionally, Romano claimed that he injured his neck warranting a spinal fusion. Romano in turn filed a negligence lawsuit against Stubbs.

At issue in this case was plaintiff’s counsel’s use of a PowerPoint presentation during his closing argument. During the recess between defense counsel’s closing argument and the start of plaintiff’s counsel’s closing argument, it was disclosed for the first time that plaintiff intended to use a PowerPoint presentation during closing. Defense counsel objected to plaintiff’s counsel utilizing the PowerPoint presentation at that point. The trial judge permitted the use of the PowerPoint presentation finding that plaintiff’s counsel would not be projecting anything he would not say in his argument.

During his closing argument, plaintiff’s counsel utilized the PowerPoint presentation to support his argument that Stubbs decision to proceed to trial reflected a bad character and his refusal to accept responsibility for the happening of the incident. Additionally, plaintiff’s counsel argued that Stubbs and his attorney were acting in concert to blame Romano. Also, during the presentation, plaintiff’s counsel projected words indicating that Stubbs was a criminal, had a propensity for violence and that the jury needed to “send a message.” Ultimately, the jury returned a verdict of $300,000 to compensate Romano for his injuries.

In reviewing this matter, the Appellate Division noted that generally closing arguments based on the evidence are permissible, but arguments that “shift the jury’s focus from a fair evaluation of the evidence to pursue instead a course designed to inflame a jury, by appealing repeatedly to inappropriate and irrelevant considerations are not.” The Court recognized that while “counsel has broad latitude to passionately advocate their clients’ cases in summation, there are some clear boundaries.”

Taken as a whole, the Court found that plaintiff’s counsel had made improper arguments through the use of his PowerPoint presentation. The Court found that arguing and projecting words that: (1) the jury needed to send a message; (2) Stubbs was a violent person; (3) Stubbs was a criminal; (4) Stubbs decision to go to trial was evidence of a bad character; and (5) Stubbs and his counsel were “working” to blame Romano, constituted improper arguments. As such, the Court found that “the cumulative impact of multiple transgressions in plaintiff’s closing argument leaves us with no confidence in the fairness of the damages awarded.”

Accordingly, the damage award was vacated and the matter was sent back to the trial court for a retrial on damages.

— Erik Anderson, Esq.

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.


Justice Rivera-Soto Will Not Seek Reappointment to the Court

January 4, 2011

On January 3, 2011, New Jersey Supreme Court Justice Roberto Rivera-Soto advised Governor Chris Christie that he would not seek reappointment to the Court when his term expired on September 1, 2011. This announcement is the latest event arising from Governor Christie’s refusal to renominate Justice John Wallace for tenure to the Court when his term ended in May 20, 2010. Breaking from tradition, Governor Christie was the first New Jersey Governor in 63 years to refuse to renominate a sitting Justice. This position was consistent with Governor Christie’s campaign pledge to “reshape” the Supreme Court.

After refusing to renominate Justice Wallace, Governor Christie nominated Anne Patterson to fill the vacant seat. The Senate President has refused to entertain Ms. Patterson’s nomination until May 2012, the date Justice Wallace would have reached the mandatory retirement age if he had been reappointed to the Court. Due to the vacancy caused by Justice Wallace not being reappointed, Chief Justice Stuart Rabner temporarily appointed Judge Edwin Stern (the senior most Appellate Division Judge) to fill the vacancy. Despite previously participating in cases with Judge Stern, Justice Rivera-Soto announced on December 10, 2010, that he would abstain from future participation in cases before the Court while Judge Stern sat on the bench. It is Justice Rivera-Soto’s position that the appointment of Judge Stern to the Court violates the State Constitution.

After Justice Rivera-Soto’s announcement there were calls from the state legislature that he either resign or be impeached. In response to Justice Rivera-Soto’s announcement, Governor Christie issued a statement advising that he will not name an appointee to fill Justice Rivera-Soto’s seat until the nomination of Ms. Patterson is entertained.

— Erik Anderson, Esq.

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.