CHARYSE MCMILLAN v. WAL-MART STORES, INC

 
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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version
 
(NOTE: The status of this decision is Unpublished.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1043-08T21043-08T2

CHARYSE MCMILLAN,

Plaintiff-Appellant,

v.

WAL-MART STORES, INC.,

Defendant-Respondent.

____________________________________

 

Argued April 22, 2009 - Decided

Before Judges Stern and Rodr guez.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4471-08.

David Lustbader argued the cause for appellant (Philip M. Lustbader, David Lustbader, P.C., attorneys; David Lustbader, on the brief).

Christine M. Mercado argued the cause for respondent (Richard D. Millet & Associates LLC, attorneys; Ms. Mercado, on the brief).

PER CURIAM

Plaintiff appeals from an order entered October 10, 2008, granting defendant's motion for summary judgment dismissing her complaint with prejudice. Plaintiff's accident occurred on June 2, 2006, but the complaint was not filed until June 3, 2008. The plaintiff argues that "the statute of limitations ... [was] equitably tolled;" that "the substantial compliance doctrine requires reversal ..." and that "the trial judge err[ed] in refusing to conduct a plenary hearing and allowing defendant to withhold the adjuster's notes of the agreement to continue negotiations beyond the date the statute ran."

The facts developed on the motion relating to events prior to June 3, 2008, are summarized below. Plaintiff's counsel "took over the case from a New York attorney," and asserts the delay in submitting information to the adjuster was due to difficulty in obtaining relevant information from prior counsel and New York providers, and records regarding treatment following a prior accident. It is uncontested that the adjuster requested information from present counsel by telephone calls in December 2006 and May 2007 and by letters dated January 30, 2007 and May 15, 2007. By letter dated June 13, 2007, and March 24, 2008, the adjuster offered a $2,500 settlement. It is also undisputed that the medical records and a report of "an up-to-date examination by an orthopedic surgeon" were sent to the adjuster on May 12, 2008. Frasier certified they were not received until May 22, 2008.

The certification of plaintiff's attorney and an attached confirming letter of June 3, 2008, refer to conversations of May 22, 2008, and May 29, 2008, in which Frasier increased the settlement offer and stated she would consider the matter further once counsel supplied her with more information. In her affidavit in support of the motion, Frasier referred to her prior correspondence and calls, and stated that she and plaintiff's counsel "did not speak on the phone until May 29, 2008," when she asked for supporting medical bills.

Plaintiff insists she is entitled to reversal because defendant's adjuster stated, on May 29, 2008, that once plaintiff submitted the bills and her counsel reviewed with plaintiff an accident report she was sending to counsel, the offer was going to be reconsidered. Plaintiff relies on Price v. N.J. Mfrs. Ins. Co., 182 N.J. 519 (2005), in which the Supreme Court reaffirmed the doctrine of equitable tolling of the statute of limitations in situations in which "[p]laintiff reasonably relied" on the carrier's conduct in failing to file a complaint in a timely fashion. Id. at 527. There, the UM carrier

was required to act in a fair manner and inform plaintiff if there were any deficiencies in his claim or if he needed to file a request for arbitration by a certain date. It was not reasonable for NJM to sit back, request and receive various documents over a three and one-half year period, and then deny plaintiff's claim because he failed to file a complaint in Superior Court or request arbitration prior to the running of the six-year statute of limitations.

[Id. at 526.]

In Price, plaintiff's counsel complied with all requests for information and supporting information and the carrier denied the claim only after the statute of limitations had run. The carrier violated its "duty of good faith to notify plaintiff if it disagreed with his understanding that NJM was duly acting upon his filed claim." Ibid. The carrier was clearly aware of the claim and led the plaintiff to believe it was being processed. It "never disclaimed or even questioned coverage" following receipt of the information supplied at defendant's request, "until after the statute of limitations expired." Id. at 527. See also e.g., Negron v. Llarena, 156 N.J. 296, 300 (1998).

Here, defendant requested information from plaintiff for over a year, but received nothing from plaintiff until May 22, 2008. The adjuster advised plaintiff's counsel on May 29, 2009, that she could not review the file until she received plaintiff's medical bills. Both parties agree there was no express discussion of the statute of limitations before it ran. Moreover, there could have been no reliance on defendant's conduct as a basis for delayed filing, because plaintiff, in fact, filed the complaint, although one day late. Plaintiff's counsel cannot fairly say that he believed there was a settlement as a result of the prior communications. The attorney certification accompanying the complaint was dated June 2, so plaintiff cannot claim she did not go forward based on conversations with the adjuster over the prior two weeks and, therefore, did not file the complaint.

Communications and the fact plaintiff supplies information to a carrier cannot be enough to toll the statute of limitations. On that basis, unless defendant responds to every ongoing letter or call, plaintiff could extend the statute exclusively by his or her own action. Finally, plaintiff never sent any communication stating an understanding she was not filing a complaint while the parties continued to negotiate. To the contrary, there is no contest the statute of limitations was not discussed before the adjuster called plaintiff's counsel on June 3, and asked if counsel knew the statute "had run."

We agree with Judge Vichness that, while the dismissal of a complaint filed one date late may seem harsh and presents no prejudice to defendant, there has to be a line drawn somewhere, and the Legislature drew it at the two year statute of limitations. As noted, an exchange of communications shortly before the statute of limitations runs cannot, without more, be converted into tolling or we would either abolish the statute of limitations or deter carriers from communicating about settlements before the statute runs. In essence, we affirm the judgment substantially for the reasons expressed in Judge Vichness' oral opinion of October 10, 2008.

Affirmed.

 

"Claims Management, Inc. is the claims handler for [defendant] and [its] insurance carrier." Janet Frasier was the case manager on this case. We hereinafter call her "the adjuster."

Plaintiff says they spoke on May 22 and May 29, and the adjuster states that they only spoke on the 29th.

Ms. Fraiser states counsel returned her call that day, and "indicated that he was under the impression that the statute of limitations was not an issue because we had discussed settlement." We do not herein address the factual contentions concerning subsequent communications.

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A-1043-08T2

July 8, 2009