LURETHA M. STRIBLING v. NEW JERSEY MANUFACTURER'S INSURANCE COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5570-06T1
5570-06T1

LURETHA M. STRIBLING,

Plaintiff-Appellant,

v.

NEW JERSEY MANUFACTURER'S

INSURANCE COMPANY,

Defendant-Respondent.

_______________________________________

 

Argued May 20, 2008 - Decided

Before Judges Skillman and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-78-07.

Luretha M. Stribling, appellant, argued the cause pro se.

John M. Ley argued the cause for respondent (Mortenson and Pomeroy, attorneys; Mr. Ley and Karen E. Heller, on the brief).

PER CURIAM

Plaintiff Luretha M. Stribling appeals from an order entered by the trial court on June 8, 2007, which denied her motion for summary judgment and granted a cross-motion for summary judgment by defendant, New Jersey Manufacturer's Insurance Company (NJM). For the reasons that follow, we reverse.

I.

On December 28, 2002, plaintiff was involved in an automobile accident and sustained personal injuries for which she sought medical treatment. NJM, plaintiff's auto insurance carrier, paid for the medical care provided to plaintiff in the period from January 29, 2003 to June 13, 2003, in accordance with the personal injury protection (PIP) coverage in plaintiff's policy. On January 19, 2004, NJM made its last payment for the medical care related to the injuries sustained by plaintiff in the December 28, 2002 accident. That payment was for an MRI of plaintiff's cervical spine, which had been performed on March 26, 2003.

In September 2003, at NJM's request, plaintiff was examined by Dr. Menachem Y. Epstein, who stated in a report dated September 14, 2003, that his examination did not reveal any abnormal objective orthopedic findings. Dr. Epstein opined that plaintiff had sustained soft tissue injuries to her cervical and lumbar spine and her right knee in the December 28, 2002 accident. However, according to Dr. Epstein, plaintiff's injuries had resolved. Dr. Epstein opined that plaintiff was capable of performing the duties of her regular job and her daily activities. He further opined that plaintiff did not require any further orthopedic treatment, follow-up care, household help, ambulatory services, diagnostic tests, medical equipment, or other ancillary services.

Dr. Epstein submitted a supplemental report dated September 19, 2003, in which he noted that he had reviewed medical records pertaining to the care provided by plaintiff's treating physician, Dr. Daniel Richmond, and the records of the physical therapy provided to plaintiff at Kessler Rehabilitation Center. Dr. Epstein stated that these records did not change his "original diagnosis of resolved cervical spine soft tissue sprain, resolved lumbar spine soft tissue sprain, and resolved right knee soft tissue sprain."

Based on Dr. Epstein's findings, NJM informed plaintiff by letter dated October 23, 2003, that it would not authorize any further payment for medical expenses, income continuation, or essential service benefits. Plaintiff alleges, however, that she required additional treatment for the injuries sustained in the December 28, 2002 accident. In November 2004, plaintiff sought further treatment from Dr. Richmond. In February 2005, x-rays were performed of plaintiff's right shoulder and arm at St. Barnabas Medical Center. On April 15, 2005, at Dr. Richmond's request, an MRI was performed on plaintiff's right shoulder at St. Barnabas. According to Dr. Richmond, the MRI indicated that plaintiff had a partial tear of the rotator cuff in the right shoulder. The doctor recommended physical therapy and certain medications, as required.

In May 2005, plaintiff contacted NJM and asked the claims representative to reopen her PIP claim. NJM denied the request. On March 28, 2006, plaintiff filed a demand for dispute resolution against NJM, seeking reimbursement of: approximately $500 for treatment provided by Dr. Richmond in 2004-2005; $2,057.43 for diagnostic tests performed at St. Barnabas in the period from February 2005 to April 2005; $754 for services provided by Imaging Consultants of Essex in February and April 2005; and $250 for physical therapy services provided by Westfield Rehabilitation and Chiropractic. In addition, plaintiff sought a determination that NJM was required to pay the anticipated costs of shoulder surgery by Dr. Richmond, in an approximate amount of $12,000, and back surgery by Dr. Allen S. Glushakow, in the approximate amount of $11,000.

In response, NJM argued that plaintiff's demand for dispute resolution was barred by the statute of limitations, specifically N.J.S.A. 39:6A-13.1(a). NJM also argued that the claims were not ripe for adjudication because plaintiff never submitted the claims to NJM. NJM further maintained that, with the exception of the claim for the services provided by St. Barnabas, plaintiff had not provided the exact amount of the cost of the services or copies of the invoices. NJM alternatively asserted that if the St. Barnabas claim was deemed to be ripe for adjudication, it should be denied because plaintiff had not shown that the services were medically necessary.

The dispute resolution professional (DRP) rendered a determination in the matter on November 6, 2006. The DRP made the following findings:

The record does not contain precertification requests or denials for prospective treatment, and lacking such precertification requests, this DRP is without jurisdiction to consider those requests. That element of the claim is therefore denied, and is not dealt with by the findings below.

The record does permit me to make findings with respect to the billing of services which are stated to have been performed by Drs. Richmond and Glushakow, Essex Imaging, Westfield Rehab and Kessler Rehab, and St. Barnabas. There exists in the record a lack of contemporaneous billing by these providers to [NJM] on the one hand, and the denial of receipt of medical information by [NJM] on the other . . . . Furthermore, none of the bills in question are properly detailed in the demand for arbitration. Only the St. Barnabas claim states an amount, and that claim has not been proved to have been submitted in any event. As [NJM] asserts "no other claim listed may be adjudicated in this arbitration as those claims were never shown to have been submitted to [NJM]."

In fact, the record discloses that no claim here can be established to have ever been submitted to [NJM], and certainly not in the form contemplated by the PIP scheme to include a description of services and CPT code. No Fault Rule 3(6) requires that the exact amount of medical expense benefits claimed must be set forth in the demand. This has not been done, and the jurisdiction of the DRP is limited to determinations of exact medical expense benefits and denials of precertification requests; DRPs do not have equity powers. As a result, nothing appears before me to be adjudicated, and this claim, as it exists, must be denied. With no claim present, we do not reach the question of the applicable statute of limitations.

On December 27, 2006, plaintiff filed a verified complaint in the trial court seeking a judgment mandating that NJM reopen plaintiff's PIP claim and provide medical benefits for plaintiff's prospective surgeries, post-surgery treatment, as well as reimbursement for the previously-incurred medical expenses related to the injuries sustained in the December 28, 2002 auto accident.

In her complaint, plaintiff stated that she had filed a request for arbitration of NJM's refusal to re-open her PIP claim. Plaintiff noted that in November 2006, the arbitrator had not ruled on her request for coverage for prospective surgeries on her lower back and right rotator cuff. Plaintiff stated that the arbitrator had "denied other relief sought because he said there was a lack of contemporaneous billing and that [NJM] had not received bills."

Thereafter, plaintiff moved for summary judgment, arguing that she is entitled to payment of her medical expenses because the expenses were incurred for treatment of injuries sustained in the December 28, 2002 accident. NJM filed a cross-motion for summary judgment. NJM argued that plaintiff's claims were barred by the applicable statute of limitations, N.J.S.A. 39:6A-13.1(a), and by the doctrine of res judicata. Plaintiff opposed NJM's cross-motion and asserted that her complaint was timely and res judicata did not apply because the arbitrator never rendered a final decision on the prospective surgeries.

The judge heard the motions on June 8, 2007. The judge did not address defendant's contention that the action was barred by res judicata. The judge concluded, however, that plaintiff's complaint had not been filed within the time required by N.J.S.A. 39:6A-13.1(a). The judge accordingly entered an order dated June 8, 2007, granting defendant's cross-motion for summary judgment and dismissing plaintiff's complaint with prejudice. This appeal followed.

II.

We first consider NJM's contention that, because plaintiff requested dispute resolution of her PIP claims for past and future medical expenses allegedly related to the December 28, 2002 auto accident, and because the DRP rendered a decision on plaintiff's claims, she was precluded from filing an action in the trial court asserting those claims.

As NJM points out, N.J.S.A. 39:6A-5.1(a) provides that any dispute regarding the recovery of medical expense or other PIP benefits may be submitted to dispute resolution by either party, in accordance with rules and regulations adopted by the Commissioner of Banking and Insurance. N.J.S.A. 39:6A-5.1(b). The statute also states that, "[a]ll decisions of a dispute resolution professional shall be binding." N.J.S.A. 39:6A-5.1(c).

However, the Commissioner's regulations provide in pertinent part that:

[t]he final determination of the dispute resolution professional shall be binding upon the parties, but subject to vacation, modification or correction by the Superior Court in an action filed pursuant to N.J.S.A. 2A:23A-13 for review of the award.

[N.J.A.C. 11:3-5.6(f).]

The grounds enumerated in N.J.S.A. 2A:23A-13 for setting aside an arbitrator's award are strictly limited. Such grounds include corruption, fraud or misconduct in procuring an award; partiality by an umpire; and the failure of the umpire to make a final and definite award due to the imperfect execution of his or her decision-making authority. N.J.S.A. 2A:23A-13(c)(1), (2), and (3).

Accordingly, the filing of a demand for dispute resolution pursuant to N.J.S.A. 39:6A-5.1(a), and the pursuit of a claim for PIP benefits in a dispute resolution proceeding, ordinarily is binding, unless the decision of the DRP is set aside on one of the grounds set forth in N.J.S.A. 2A:23A-13. However, in order for a decision of the DRP to be binding upon a PIP claimant, the DRP must exercise jurisdiction over the claim and render a final decision on the dispute.

We therefore reject NJM's contention that the DRP's decision represents a binding adjudication of plaintiff's PIP claims for past and prospective medical expenses. As we stated previously, the DRP declined to exercise jurisdiction over plaintiff's PIP claims for prospective medical treatment, specifically the claims for back and rotator cuff surgeries and related prospective care. In his decision, the DRP noted that there was no evidence that plaintiff had ever asked NJM for precertification of the surgeries. Therefore, the DRP declined to determine whether NJM was required to pay these expenses.

The DRP also declined to render a decision on plaintiff's claims for past medical expenses. The DRP noted that, with the exception of the claim for the diagnostic tests performed at St. Barnabas, plaintiff did not set forth the precise amount she was seeking for the previously-incurred medical expenses. Moreover, plaintiff failed to provide the DRP with copies of the invoices regarding the services. The DRP made clear that his jurisdiction was limited to resolving disputes as to "exact" claims for medical expenses and denials of precertification requests. The DRP stated that there was no claim before him that could be adjudicated.

We therefore conclude that, because the DRP did not make a binding determination on any of plaintiff's PIP claims for payment of her past or prospective medical expenses, the DRP's decision did not preclude plaintiff from filing an action in the trial court to adjudicate her dispute with NJM over the payment of the PIP benefits.

III.

We turn, then, to the question of whether plaintiff filed her lawsuit within the time prescribed by N.J.S.A. 39:6A-13.1(a). The statute provides that:

[e]very action for the payment of [PIP] benefits . . . shall be commenced not later than two years after the injured person or survivor suffers a loss or incurs an expense and either knows or in the exercise of reasonable diligence should know that the loss or expense was caused by the accident, or not later than four years after the accident whichever is earlier, provided however, that if benefits have been paid before then an action for further benefits may be commenced not later than two years after the last payment of benefits.

[Ibid.]

In Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318 (2000), the Court interpreted N.J.S.A. 39:6A-13.1(a) to mean that an action for PIP benefits "is timely if it is filed either within four years of the accident and two years of the first uncompensated expense, whichever is earlier, or within two years of the last payment of benefits." Id. at 333.

Under Aponte-Correa, plaintiff had to file her lawsuit within four years of the date of the accident, or within two years of the first uncompensated expense, whichever date was earlier. The accident occurred on December 28, 2002, and the first uncompensated expense was incurred in November 2004. Therefore, plaintiff's complaint would be timely if it was filed by November 2006, since that was the earlier of the two dates. Alternatively, plaintiff's complaint would be deemed timely if filed by January 19, 2006, which was two years after NJM's last payment of PIP benefits. As noted previously, plaintiff filed her complaint on December 27, 2006. Accordingly, we conclude that plaintiff failed to meet the deadlines under the statute, as interpreted in Aponte-Correa.

Plaintiff argues, however, that her complaint should be deemed timely because she filed her demand for dispute resolution within the statutory limitations period. We agree that, in the circumstances presented in this matter, the filing of the demand for dispute resolution tolled the time for filing the complaint in the trial court, and plaintiff's complaint should be deemed to have been timely filed.

This conclusion is consistent with the principles enunciated by the Court in Galligan v. Westfield Ctr. Serv., Inc., 82 N.J. 188 (1980). In that case, the plaintiff filed an action in federal court asserting certain wrongful death and survivorship claims arising from a motor vehicle accident in which the plaintiff's spouse suffered allegedly fatal injuries. Id. at 190.

The defendants in Galligan moved to dismiss the action on the basis that the federal court lacked subject matter jurisdiction over the controversy. Ibid. While the motion was pending, the plaintiff filed an substantially identical lawsuit in the Law Division. Ibid. The state court action was filed twenty-two days after the time prescribed by the applicable statute of limitations. Id. at 190-91. Thereafter, the federal court dismissed the plaintiff's complaint. Ibid. The defendants moved to dismiss the Law Division action, and their motion was granted. Ibid.

The Supreme Court concluded that the trial court erred by dismissing the complaint. Id. at 195. The Court observed that a mistake in selecting a court with "questionable or defective" jurisdiction should not preclude the tolling of a statute of limitations "when all other purposes" of the statute have been met. Id. at 193. The Court determined that "giving effect" to the filing of the complaint in the federal court "does no violence" to the purposes underlying the statute of limitations. Ibid. The Court noted that the complaint had been filed only twenty-two days late, and the defendants had conceded that they would not be prejudiced if they were required to litigate the circumstances of the decedent's auto accident. Ibid.

The Court added that the defendants' desire for repose due to the passage of time was not justified because the defendants received notice of the Law Division action while the federal case was still pending. Id. at 194. Furthermore, because the plaintiff had pursued his federal claims within the time prescribed by the statute of limitations, it could not be said that he had "'slept on his rights.'" Ibid. (quoting Kaczmarek v. N.J. Tpk. Auth., 77 N.J 329, 341 (1978)).

We subsequently applied these principles in Mitzner v. W. Ridgelawn Cemetery, Inc., 311 N.J. Super. 233 (App. Div. 1998). In that case, the plaintiff filed an action in the New York courts and, after the New Jersey statute of limitations on the plaintiff's claims had run, defendants secured an order from the New York courts dismissing the action for lack of personal jurisdiction. Id. at 235. The plaintiffs commenced an action in the New Jersey courts before the time for filing an appeal from the order of dismissal had expired. Id. at 234-35.

We held that the New Jersey action had been timely filed. We stated that tolling of a statute of limitations pursuant to Galligan was not limited to circumstances in which a first, erroneously-filed action was still pending. Id. at 237. We also stated that the principles set forth in Galligan applied even though the first action was brought in a court that lacked personal jurisdiction over the defendant. Ibid. We held that, in the circumstances, the defendants were not entitled to repose because the plaintiff had pursued the action with reasonable promptness, albeit in the wrong forum. Ibid.

In this case, plaintiff did not select a forum without jurisdiction. As we stated previously, N.J.S.A. 39:6A-5.1(a) permits any party to seek dispute resolution of a dispute over PIP benefits. Plaintiff sought dispute resolution but, as we have concluded, the DRP did not render a binding decision on her PIP claims for past or prospective medical expenses.

In any event, it is undisputed that plaintiff filed her demand for dispute resolution within the time prescribed by N.J.S.A. 39:6A-13.1(a). Therefore, it cannot be said that plaintiff "slept on her rights." Furthermore, NJM could not have a legitimate claim to repose due to the passing of time merely because plaintiff filed a demand for dispute resolution rather than a lawsuit within the time required by N.J.S.A. 39:6A-13.1(a). In addition, NJM has not shown that it would be prejudiced if it has to respond to plaintiff's claims.

We accordingly conclude that the time within which plaintiff was required to file her trial court action was tolled during the pendency of the DRP proceedings and, consequently, the complaint was timely filed on December 27, 2006. Therefore, we reverse the order entered by the trial court on June 8, 2007 granting defendant's cross-motion for summary judgment.

We note that, although plaintiff argues that the trial court also erred by denying her motion for summary judgment, the trial judge did not address plaintiff's motion in his decision on the record. We decline to determine in the first instance whether there are any genuine issues of material fact regarding plaintiff's PIP claims and whether plaintiff is entitled to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c). Those issues must first be addressed by the trial court.

Reversed and remanded to the trial court for further proceedings in conformance with this opinion. We do not retain jurisdiction.

 

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A-5570-06T1

June 26, 2008