MICHAEL J. KELSEY v. J.D. CARTON & SON INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MICHAEL J. KELSEY,

Plaintiff-Appellant,

v.

J.D. CARTON & SON, INC. and

ALLIED VAN LINES, INC.,

Defendants-Respondents.

___________________________________

June 10, 2014

Submitted: May 29, 2014 Decided:

Before Judges Simonelli and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. DC-2542-11.

Michael J. Kelsey, appellant pro se.

Law Firm of Donna M. Russo, attorney for respondents (Nancy B. Marchioni and Donna M. Russo, on the brief).

PER CURIAM

Plaintiff appeals from the Special Civil Part's August 14, 2012 order granting defendants' motion for summary judgment and dismissing plaintiff's complaint with prejudice. We affirm.

Defendant J.D. Carton & Son, Inc. (J.D. Carton) is a licensed moving company in New Jersey. J.D. Carton serves as a local agent for defendant Allied Van Lines, Inc. (Allied) when a customer is making an interstate move. Plaintiff contracted with J.D. Carton to move some of his furniture and personal property from Long Valley to a storage facility in East Hanover. Because this was an intrastate move, J.D. Carton was the only defendant involved in the transaction. The move took place on May 23, 2005.

The "contract terms and conditions" of the parties' agreement were set forth in a written bill of lading. With regard to J.D. Carton's potential liability for any damage to plaintiff's property during the move, the bill of lading included the following language, taken directly from the governing State statute, N.J.S.A. 45:14D-12b:

All claims against any mover or warehouseman for damage to property shall be filed in writing with the mover or warehouseman within 90 days from the time the cause of action accrues and all suits in respect thereof shall be instituted within 2 years of the day that the mover or warehouseman has disallowed the claim or any part or parts thereof specified in the notice.

In addition, N.J.A.C. 13:44D-4.16(b) provides that "[a]ll claims for loss, damage or overcharge shall be submitted in writing to the public mover and/or warehouseman within 90 days of the consumer's receipt of his or her goods. All claims shall be accompanied by the original paid bill of lading." N.J.A.C. 13:44D-4.16(c) states that "[w]here the claim involves either overcharging or partial loss, damage or destruction of a consumer's goods, the consumer shall pay in full the amount appearing on the original bill and shall submit the paid bill or original paid bill of lading with the written claim . . . ." Finally, N.J.A.C. 13:44D-4.16(e) states:

The public mover and/or warehouseman and consumer shall settle all claims within 90 days of the receipt of the completed claim form. This 90 day period may be extended by 30 days if both the public mover and/or warehousemen and the consumer agree in writing to an extension. The public mover shall maintain the signed agreement to extend this period in his or her records for two years.

After the move was completed, plaintiff inspected his property. On the bill of lading, he noted that there was a scratch on a dining room table, a dent on a ping pong table, and grease on a chair. Plaintiff did not pay the balance due as set forth in the bill of lading.

Although N.J.S.A. 45:14D-12b and the bill of lading required plaintiff to file any claim for damages related to the May 23, 2005 move within ninety days, plaintiff did not file a claim with J.D. Carton for the damages allegedly sustained until February 22, 2006.1 Contrary to N.J.A.C. 13:44D-4.16(b), plaintiff did not include "the original paid bill of lading" with his notice of claim and he did not pay the full amount due as required by N.J.A.C. 13:44D-4.16(c). Because plaintiff had not complied with these requirements, J.D. Carton did not process plaintiff's deficient claim and the matter was not "settle[d]" within ninety days as required by N.J.A.C. 13:44D-4.16(e).

On May 23, 2011, six years after the move was completed, plaintiff filed a complaint against defendants in the Special Civil Part, in which he sought $13,500 in damages, plus interest and costs.2 Defendants filed an answer and J.D. Carton filed a counterclaim seeking to recover the unpaid moving charges. Defendants then filed a motion for summary judgment, arguing that plaintiff failed to submit a proper notice of claim and that his complaint was barred by the two-year statute of limitations set forth in N.J.S.A. 45:14D-12b.

After hearing oral argument, Judge William J. McGovern, III entered an order granting defendants' motion for summary judgment and dismissing plaintiff's complaint with prejudice.3 In a thorough oral opinion, the judge noted that N.J.S.A. 45:14D-12b and N.J.A.C. 13:44D-4.16(b) required plaintiff to file his notice of claim with J.D. Carton and provide a copy of the original paid bill of lading within ninety days of the receipt of his property. That did not occur in this case. However, even if it were assumed for purposes of the motion that plaintiff had filed a timely and complete notice of claim, the judge found that his complaint was barred by the two-year statute of limitations set forth in N.J.S.A. 45:14D-12b.

In so ruling, Judge McGovern considered and rejected plaintiff's argument that the limitations period never began to run because J.D. Carton never formally "disallowed" his claim. The judge pointed to N.J.A.C. 13:44D-4.16(e), which requires public movers and consumers to "settle all claims within 90 days of the receipt of the completed claim form[,]" and concluded that plaintiff's claim was effectively denied ninety days after it was allegedly submitted when it was not "settle[d]" by the parties within that time period. Because plaintiff did not file his complaint within two years of that date, which would have been sometime in May 2008, the judge found that his complaint, filed three years later in May 2011, was obviously out of time. This appeal followed.

On appeal, plaintiff again argues that the statute of limitations never began to run because J.D. Carton did not formally disallow his claim. After reviewing the record, we conclude that this argument is without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons set forth by Judge McGovern in his oral opinion. We add the following brief comments.

Our review of a ruling on summary judgment is de novo, applying the same standard as the trial court. Nicholas v. Mynster, 213 N.J. 463, 477-78 (2013). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). When determining whether there is a genuine issue of material fact, the court must consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Here, the material facts were not in dispute. Plaintiff did not file a timely or complete notice of claim with J.D. Carton. The move was completed on May 23, 2005 and plaintiff had ninety days to file the notice of claim. However, he did not do so until February 22, 2006. This claim was almost six months out of time under N.J.S.A. 45:14D-12b and N.J.A.C. 13:44D-4.16(b). Plaintiff also never paid the charges listed in the bill of lading and he did not provide J.D. Carton with "the original paid bill of lading" as required by N.J.A.C. 13:44D-4.16(b) and (c). Because plaintiff failed to comply with these requirements, J.D. Carton had no obligation to consider his deficient claim.

Under these circumstances, we perceive no basis for disturbing the judge's conclusion that plaintiff's claim was barred. J.D. Carton could not "disallow" a claim that did not meet the basic requirements of the applicable statute and regulations. Moreover, even if the claim were deemed timely and complete, we agree with the judge that, once the parties failed to "settle" their dispute under N.J.A.C. 13:44D-4.16(e) within ninety days after plaintiff submitted his deficient claim on February 22, 2006, the statute of limitations began to run at that time and expired two years later, in May 2008. Because plaintiff did not file his complaint until three more years had passed, his action was plainly barred by the statute of limitations established in N.J.S.A. 45:14D-12b.

Affirmed.

1 In this notice, plaintiff asserted that (1) thirteen items were damaged in the move; (2) the items could not be repaired; and (3) it would cost $12,000 to replace them.

2 The complaint was filed in Morris County, but was later transferred to Sussex County due to a conflict. Plaintiff retained legal counsel and the parties thereafter filed a number of motions that are not pertinent to the resolution of the present appeal.

3 The judge also dismissed J.D. Carton's counterclaim and they did not file a notice of appeal from this decision.