JOHN S. BAER v. PRUDENTIAL LIFE INS. CO.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1406-07T21406-07T2

JOHN S. BAER,

Plaintiff-Appellant,

v.

PRUDENTIAL LIFE INS. CO.

n/k/a PRUDENTIAL FINANCIAL,

Defendant-Respondent.

___________________________________________________________

 

Argued October 22, 2008 - Decided

Before Judges Parrillo and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-683-07.

Donald V. Feeley argued the cause for appellant.

John P. O'Toole argued the cause for respondent (Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, attorneys; Mr. O'Toole, on the brief).

PER CURIAM

Plaintiff John S. Baer appeals from the October 5, 2007 order that granted defendant, Prudential Life Ins. Co. n/k/a Prudential Financial, summary judgment dismissing plaintiff's complaint. Plaintiff contends that his complaint was not time-barred by the applicable statute of limitations, or by the doctrine of laches, and that the motion judge improperly applied summary judgment standards and decided the motion before any discovery had taken place. We have considered these arguments in light of the record and applicable legal standards. We affirm.

Plaintiff is the only son of Roy S. Baer and Juanita Baer. In a complaint filed on March 12, 2007, plaintiff alleged that Roy purchased a policy of group health and life insurance in 1959 from defendant. Juanita was named beneficiary under the policy which was in the face amount of $10,000. Plaintiff claimed that he had provided defendant with "due notice and proof of death" of his parents, that he was now the beneficiary of the policy, and that defendant had refused payment. He sought judgment for the face amount of the policy "with interest from January 19, 1973," the date of Roy's death. In a second count of the complaint, plaintiff repeated the same allegations as to a second policy of insurance on Roy's life, also issued by defendant on October 1, 1968. Copies of both insurance policies were attached to the complaint, as well as plaintiff's notice of claim served upon defendant. These documents revealed that Roy had died on January 19, 1973, at the age of ninety, and Juanita died on August 10, 1977, also at the age of ninety.

Defendant answered and the parties exchanged interrogatories which plaintiff answered, though defendant never supplied its answers. On July 19, 2007, defendant moved for summary judgment. In support of the motion, defendant included the affidavit of Tamika Williams, one of its disability claims specialists. She had reviewed the 1968 policy attached to the complaint, concluded it was a group term insurance policy provided to Roy's employer, Precision Specialties, Inc. (Precision), and that its benefits were only payable if Roy was employed with the company at the time of his death. Other than to note that neither Roy's beneficiaries nor Precision had ever made a claim under the policy, Williams' search of defendant's files, which did not date back to 1973, revealed no other information. Defendant also furnished the certification of its director of group insurance, Edith J. Ewing, who concluded that the 1968 policy was merely a replacement of the earlier 1959 policy and not a separate contract for insurance. She, too, noted that coverage under the policy was only available if Roy was employed by Precision at the time of his death.

Defendant argued that under the terms of the policy, notice of plaintiff's claim had to be made within ninety days of the insured's death. Therefore, defendant argued, plaintiff needed to bring suit "within [three] years from the expiration of the time within which proof of loss is required by the policy." N.J.S.A. 17B:27-46. Defendant contended the complaint should be dismissed as untimely.

Plaintiff opposed the motion by filing a certification in which he detailed the reason for the delay and other facts supporting his claim. Plaintiff alleged that despite his advanced age, Roy was an employee of Precision at the time of his death. Plaintiff certified that in 1968, he owned Precision, his father having started the company years earlier, and that he sold it to Warner Electric in 1969 and received a five-year employment agreement as part of the transaction. Plaintiff alleged Roy "was given a lifetime consulting plan . . . at the same time."

Plaintiff further claimed that at the time of his death, Roy was taking care of Juanita who, because she suffered from dementia, was confined to a nursing home in Ellsworth, Maine. Because of her condition, upon Roy's death Juanita was unable to provide any "assistance to anyone concerning her husband's personal and business affairs," and defendant's policy "was completely overlooked." Plaintiff alleged that it was only in August of 2006, when his son, Roy's grandson, "discovered the [] policy in a box of old photographs," that he realized its existence and submitted the claim to defendant. Lastly, plaintiff certified that Juanita had never presented the policy for payment after Roy's death.

Plaintiff's counsel also furnished a certification in opposition to defendant's motion. He noted that discovery had just commenced and was not due to end "for another [six] months." He argued that "[p]laintiff need[ed] additional time to obtain information to refute the allegations of [d]efendant[.]"

Judge Marc M. Baldwin heard oral argument on defendant's motion on October 5, 2007. In addition to arguing plaintiff's claim was barred by the statute of limitations, defendant argued it was prejudiced by the passage of thirty years' time since Juanita's death, and that the doctrine of laches should apply to bar plaintiff's claim. Plaintiff countered that the policy permitted his proof of loss to be presented beyond the ninety-day period of the policy "if it was not reasonably possible to give proof within such time." He contended that given Juanita's dementia, her inability to take care of Roy's affairs upon his death, and the policy being kept in an unlikely place, i.e., in a box of old photographs, it was a question of disputed material fact whether it was "not reasonably possible" to have given notice at an earlier time. He also argued that summary judgment was not appropriate given the lack of any meaningful discovery.

Judge Baldwin, citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995), concluded that even "if you took all reasonable inferences in favor of [plaintiff]," no "reasonable jury would say, it's reasonable to not look through everything for [twenty] years[.]" Noting plaintiff's objection to deciding the motion without permitting further discovery, the judge stated

I'm not deciding this case based on what [defendant] say[s]. I'm deciding this case based on whether it's reasonable to bring a claim [thirty] years after a death in a situation where the . . . facts through which the policy was found, are facts that apparently were present in the last [twenty-seven] years, in a box under [plaintiff's] control, and somebody decides to look at [twenty-seven] years later.

The judge granted defendant's motion, and this appeal ensued.

The policy provisions at issue provide in pertinent part:

Written proof of the loss under a coverage upon which claim may be based must be furnished to Prudential within ninety days after --

(1) . . .

(2) . . .

(3) the date of loss . . . .

Failure to furnish such proof within the required time shall not invalidate nor reduce any claim if it was not reasonably possible to give proof within such time, provided such proof is furnished as soon as reasonably possible.

(Emphasis added.)

This language tracks a statutory requirement for group life and health insurance policies. See N.J.S.A. 17B:27-41; Mosior v. Ins. Co. of N. Am., 193 N.J. Super. 190, 193 (App. Div. 1984). "The date of loss is the critical date" under the policy. Ibid. N.J.S.A. 17B:27-46, provides that "no action at law or in equity shall be brought to recover on the policy . . . unless brought within 3 years from the expiration of the time within which proof of loss is required by the policy."

Plaintiff reiterates before us the arguments he raised below, claiming essentially that whether it was "not reasonably possible" to give notice of his claim within ninety days of Roy's death, and whether he gave notice "as soon as reasonably possible" thereafter, thus tolling the policy's time limits, and in turn, the statute of limitations, were material issues of disputed fact that should have been decided by a fact finder after further discovery. Hence, he contends, summary judgment was inappropriate. Because we conclude, as did Judge Baldwin, that, as a matter of law, plaintiff cannot demonstrate that under the circumstances he presented his claim "as soon as reasonably possible," we affirm.

When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Atlantic Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts; we then decide "whether the motion judge's application of the law was correct." Id. at 230-31. We owe no deference to the motion judge's conclusions on issues of law. Id. at 231 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Here, the essential facts were undisputed and the motion judge decided the case as a matter of law. In order to comply with the applicable statute of limitations, plaintiff needed to start suit no more than three years plus ninety-days after Roy's death. Only if it was "not reasonably possible" to have served defendant with proof of Roy's death within ninety days, and only if plaintiff furnished the proof "as soon as reasonably possible" thereafter, would plaintiff be relieved of this burden. It would seem to us that Judge Baldwin accorded some flexibility to plaintiff regarding the strict application of the time bar by essentially accepting that because of Juanita's condition, it was "not reasonably possible" for plaintiff to provide notice of his claim within ninety days of Roy's death. Instead, Judge Baldwin used Juanita's death as the precipitating event.

Stated another way, the judge determined that even though plaintiff may not have known of the policy's existence upon Roy's death, and even if he did not know of the policy for the three years that followed because of Juanita's illness, no reasonable fact finder could conclude that he acted "as soon as reasonably possible" by waiting nearly thirty years thereafter to present his claim and furnish his proof of loss.

In making his decision, the judge was interpreting the language of the insurance contract. We have noted that "[t]he interpretation or construction of a contract is usually a legal question for the court, suitable for a decision on a motion for summary judgment." Driscoll Const. Co., Inc. v. N.J. Dept. of Transp., 371 N.J. Super. 304, 313 (App. Div. 2004)(internal quotation omitted). "The interpretation of the terms of a contract are decided by the court as a matter of law unless the meaning is both unclear and dependent on conflicting testimony." Bosshard v. Hackensack Univ. Med. Ctr, 345 N.J. Super. 78, 92 (App. Div. 2001).

Here, the judge accepted plaintiff's version of the facts leading to his discovery of the insurance policy. The question became, was that evidence sufficient "to permit a rational factfinder to resolve the . . . disputed issue"--whether plaintiff had acted as soon as reasonably possible to present his proof of loss--in favor of plaintiff? Brill, supra, 142 N.J. at 540. In more common parlance, we have conversely stated the appropriate role for the motion judge: "A trial court should never decide on its merits a dispute on which a rational [factfinder] could go either way." Driscoll Const. Co., supra, 371 N.J. Super. at 315.

In this case, we agree with Judge Baldwin that the evidence was incapable of permitting a rational fact finder to conclude that plaintiff presented his proof of loss as soon as reasonably possible. As the judge properly noted in reviewing plaintiff's evidence regarding his son's discovery of the policy in a box of photographs,

If you had something that said this box somehow was lost and somebody found it . . . that's something different. But there's nothing before me to indicate this is [something] more than a box of materials that the family had and nobody took time to look through the entire box until grandson Baer looked through it six, eight months ago.

. . . .

Anybody that's had a parent die, I would suggest, would look through all records that the decease[d] kept.

Plaintiff's rejoinder--that due to her dementia Juanita placed the policy in an unexpected place, a box of family photographs-- is unavailing because it does not, in any material way, affect the judge's basic rationale. In other words, plaintiff's failure to thoroughly search through Juanita's possessions, whatever they may have been, led inexorably to the conclusion that he failed to demonstrate, for summary judgment purposes, that he acted reasonably in presenting the claim as soon as possible. See Brill, supra, 142 N.J. at 540 (when evidence is so one-sided that moving party must prevail as a matter of law, summary judgment is appropriate).

The fact that little discovery had taken place prior to the motion being decided does not salvage plaintiff's argument. We have said that "if the summary judgment turns on a question of law, or if further factual development is unnecessary in light of the issues presented, then summary judgment need not be delayed." United Sav. Bank v. N.J. Dep't of Envtl. Prot., 360 N.J. Super. 520, 525 (App. Div.), certif. denied, 177 N.J. 574 (2003). Here, Judge Baldwin stressed that he was not considering defendant's argument that Roy was not entitled to the policy's benefits because he was not employed at the time of his death. Instead, the judge accepted all the proof plaintiff himself had furnished on the issue of whether the delay in discovering the policy provided a reasonable basis for the nearly thirty-year delay in presenting the claim. Plaintiff has not alleged that additional discovery would reveal facts to support his position, nor would we expect him to reasonably make such an argument since additional facts on this issue are likely entirely within his knowledge and control. See Kaczorowska v. Nat'l Envelope Corp., 342 N.J. Super. 580, 591 (App. Div. 2001)(holding that "[w]hen the incompleteness of discovery is raised as a defense to a motion for summary judgment, that party must establish that there is a likelihood that further discovery would supply the necessary information")(quoting J. Josephson, Inc. v. Crum & Forster Ins. Co., 293 N.J. Super. 170, 204 (App. Div. 1996)).

Affirmed.

To avoid confusion, we will refer to members of plaintiff's family by their first names throughout this opinion. We intend no disrespect by this informality.

It would appear that plaintiff does not concede this point. However, whether one or two separate policies are at issue is immaterial to our resolution of the case since both contained the same language regarding the time limits for presentation of a claim. We will use the singular "policy" throughout the balance of the opinion to avoid confusion.

(continued)

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A-1406-07T2

November 26, 2008