LINDA M. McKEEN v. STATE FARM INDEMNITY COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2542-08T12542-08T1

LINDA M. McKEEN,

Plaintiff-Appellant,

v.

STATE FARM INDEMNITY COMPANY,

Defendant-Respondent.

________________________________

 

Submitted October 27, 2009 - Decided

Before Judges Wefing and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Gloucester County, No. L-1387-07.

Lewis G. Adler, attorney for appellant.

Chierici, Chierici & Smith, attorneys for

respondent (Carolyn Kornas Karbasian, on

the brief).

PER CURIAM

Plaintiff appeals from a trial court order entered December 5, 2008, granting summary judgment to defendant State Farm Indemnity Company and dismissing plaintiff's complaint. After reviewing the record in light of the contentions made on appeal, we affirm.

On June 15, 2004, plaintiff sustained an injury when her arms were caught in the sliding door of her 2000 GMC Safari van vehicle. She managed to wrest her arms from the door. Her left arm was swollen and severely bruised, but plaintiff determined that she had not broken any bones and thought it not necessary to go to the hospital. Later that evening, she lost the pulse and circulation to her left arm, and her nail beds turned white. Her husband took her to the hospital, and the doctors determined that a clot had formed in her left arm. It ultimately became necessary to amputate her left arm below the elbow.

Plaintiff's Safari van was insured by defendant State Farm. Plaintiff and her husband did not, however, submit the medical bills they incurred for her care and treatment following this incident to State Farm but, rather, to their health insurance carrier, Aetna Insurance Company. Aetna provided coverage for these bills.

Plaintiff ultimately received a prosthesis. It was not entirely satisfactory, and she was unable to perform her regular housekeeping chores and found it necessary to hire a housekeeper to assist her. In December 2005, plaintiff's husband forwarded to the State Farm agent a list of housekeeper expenses they had incurred following plaintiff's accident, and he, in turn, forwarded the documents to State Farm's PIP department.

A State Farm claim representative wrote to plaintiff and her husband on December 30, 2005, acknowledging receipt of the housekeeping bills. In the letter, she said "Per your request, we will wait to hear from you after the new year." A further letter, in March 2006, advised plaintiff that State Farm had closed its PIP file.

Three months later, in June 2006, plaintiff's attorney wrote to State Farm requesting that it forward to him a PIP application to be completed and returned. In August, he submitted the completed PIP application to State Farm.

In January 2007, he wrote again to State Farm, noting he had heard nothing in response to the application. Plaintiff's attorney wrote again in August 2007, noting that he had not heard from State Farm and that his several phone calls had not been returned. Finally, in June 2008, State Farm wrote to plaintiff, reserving its right to deny coverage on the basis that it was questionable whether her injury arose out of the ownership, maintenance, use, loading or unloading of an insured vehicle.

In September 2007, plaintiff filed suit, seeking essential services PIP benefits under the State Farm policy. In November 2008, State Farm filed its motion for summary judgment, contending that plaintiff's action was barred by the PIP statute of limitations, N.J.S.A. 39:6A-13.1. Plaintiff has appealed from the trial court's order granting that motion.

N.J.S.A. 39:6A-13.1 provides in pertinent part:

Every action for the payment of [PIP] benefits . . . except an action by a decedent's estate, 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 . . . .

Plaintiff argues on appeal that her suit should be considered timely because it was filed within two years of plaintiff first submitting her claim to State Farm, in December 2005, and within two years of State Farm's notification to plaintiff that it was closing its PIP file.

We are unable to accept plaintiff's argument. To do so would require us to disregard the clear language of the statute. This we cannot do.

The Legislature has clearly spoken and created a two-year period in which a policyholder may file suit for PIP benefits. Plaintiff did not act within that two-year window.

Plaintiff cites Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318 (2000). In that case, however, the Court was considering another portion of the statute which creates another limitations period when a PIP carrier has, in fact, made some payment of PIP benefits and then ceased providing PIP coverage. Here, State Farm never made any payment to plaintiff, and thus the statutory language the Court considered in Aponte-Correa is inapplicable here.

The order under review is affirmed.

 

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A-2542-08T1

November 16, 2009