LINDSAY SALOMON v. GOVERNMENT EMPLOYEES INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LINDSAY SALOMON,

Plaintiff-Appellant,

v.

GOVERNMENT EMPLOYEES

INSURANCE COMPANY (GEICO),

Defendant-Respondent.

____________________________________________

April 22, 2014

Before Judges Yannotti and St. John.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5518-11.

Cory Anne Cassidy argued the cause for appellant (Riposta, Lawyers LLC, attorneys; Ms. Cassidy, of counsel and on the brief).

Kenneth R. Foreman argued the cause for respondent (Harwood Lloyd, LLC, attorneys; Curtis J. Turpan, of counsel and on the brief; Paul E. Kiel, on the brief).

PER CURIAM

Plaintiff Lindsay Salomon appeals from an order entered by the trial court on January 25, 2013, which denied her cross-motion for summary judgment and granted a motion for summary judgment by defendant, Government Employees Insurance Company (GEICO). For the reasons that follow, we affirm.

I.

Viewed in the light most favorable to plaintiff, see R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the summary judgment record reveals the following facts and procedural history.

On July 3, 2007, plaintiff was involved in an automobile accident and sustained personal injuries for which she sought medical treatment. GEICO paid $6,860.17 for the medical care provided to plaintiff in the period from the emergency treatment provided on the date of the accident to the last payment on August 20, 2008, in accordance with the personal injury protection (PIP) coverage. Also, GEICO did not make a payment for services rendered to plaintiff by Charles G. Garbaccio M.D. on November 6, 2007. PIP benefits, which encompass certain medical expenses, loss of income, essential services, death, and funeral expense benefits set out by statute, N.J.S.A. 39:6A-4, are "guaranteed regardless of who is at fault in causing the accident therefore, the moniker no-fault insurance." Aronberg v. Tolbert, 207 N.J. 587, 600 (2011). "The goal of PIP is to provide prompt medical treatment for those who have been injured in automobile accidents without having that treatment delayed because of payment disputes." Selective Ins. Co. of Am. v. Hudson E. Pain Mgmt. Osteopathic Med. and Physical Therapy, 210 N.J. 597, 609 (2012).

Plaintiff was sitting on the lap of a friend in the left-rear passenger seat in an automobile that was involved in a serious crash. At the time of the accident, she was seventeen-years-old and was one of seven occupants in the car, including the driver. The vehicle left the roadway, went through a fence and heavy brush, and came to rest against a telephone pole. One of the occupants tragically died. Some of the occupants, including the driver, had been drinking alcoholic beverages prior to the crash.

Plaintiff was transported to Englewood Hospital for treatment. The hospital report indicated that she had numerous vertically oriented deep lacerations to her back, as well as her entire back being covered with "road rash." There was also much "foreign body in the wounds." Debridement of multiple areas of "road rash" was undertaken with the removal of foreign bodies and debris. Layered closure was then performed and the skin was closed.

On August 14, 2007, plaintiff was seen by Dr. Garbaccio, a

plastic surgeon. He excised the area of foreign body, traumatic tattooing and hypertrophic scaring. The operation involved excision and scar revision with plastic repair. However, plaintiff's back still shows prominent scarring and foreign body tattooing. In addition, on plaintiff's left arm is a scar with what appears to be a residual retained foreign body, probably glass or dirt, under it.

Plaintiff was examined by Michael Valdes, M.D., a plastic surgeon, on June 9, 2010. Dr. Valdes, in a letter to plaintiff's counsel dated June 21, 2010, stated that, "Ms. Salomon is a candidate for intervention to attempt to minimize the aesthetic impact of her multiple deformities." Dr. Valdes then suggested a course of treatment. He stated that "in summary, as a direct result of her motor vehicle accident injuries, Lindsay Salomon is left with multiple scars and foreign body tattoos. Although intervention may help to minimize the aesthetic impact of these deformities, they cannot be 'removed' and therefore are permanent in nature."

Plaintiff was seen by Cindy Eisenberg, a licensed social worker, who treated her weekly from November 7, 2007 to May 9, 2008. Plaintiff was also treated by Nancy Gallina, Ph.D., a licensed psychologist, on December 30, 2008, January 6, 2009, and January 7, 2009. At that time, Dr. Gallina recommended that plaintiff be evaluated by a psychiatrist. However, plaintiff returned to college in Arizona and, although Dr. Gallina discussed with plaintiff making arrangements to continue psychological treatment in Arizona, plaintiff did not proceed with any psychological treatment. Plaintiff did not pursue any psychological treatment until she returned to see Dr. Gallina on January 6, 2010.

In addition to interviewing plaintiff, Dr. Gallina administered certain psychological tests. Dr. Gallina concluded that plaintiff is suffering from "post-traumatic stress disorder, chronic, impartial remission." Dr. Gallina recommended a treatment course of "aggressive out-patient individual psycho-therapy and evaluation by a psychiatrist, and at his/her direction, initiation of aggressive psycho-pharmacological treatment with psychotropic medication . . . ."

She also opined that plaintiff's "disabilities are permanent in nature and causally related to the accident in question."

On June 10, 2008, Eisenberg, in a letter to plaintiff's counsel, noted that her initial diagnosis of plaintiff was adjustment disorder with mixed emotional features, but that, as she heard more, changed the diagnosis to post-traumatic stress disorder. Eisenberg recommended that plaintiff continue in therapy and recommended at least two years of weekly psychotherapy.

Counsel for plaintiff, by letter dated June 22, 2011, advised GEICO of plaintiff's "need for future PIP benefits for treatment as a result of the serious injuries, scarring, and emotional trauma caused by the accident of July 3, 2007." In support of the claim, counsel included the reports of Gallina, Eisenberg, Valdes, and Garbaccio. GEICO responded that "the statute of limitations for [plaintiff's] PIP claim has expired. Therefore, no additional benefits are going to be afforded."

On June 28, 2011, plaintiff filed a complaint seeking to compel GEICO to pay additional PIP benefits for her reasonable and necessary medical treatment for scarring and psychological injuries sustained in the accident. In her complaint, she represented that she "has satisfied the statutory requirement of filing a PIP claim within four years of the accident/two years of any uncompensated expense pursuant to N.J.S.A. 39:6A-13.1(a)."1 The complaint was not 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. Plaintiff asserts that the time limitations of the statute do not apply since her condition is such that GEICO knew or should have known at the time it first provided PIP benefits that future treatment, causally related to the accident, would be required.

After several extensions of the discovery period, GEICO filed a motion for summary judgment arguing that plaintiff's claims were barred by the applicable statute of limitations, N.J.S.A. 39:6A-13.1(a). Plaintiff filed opposition, together with a cross-motion for summary judgment. Oral argument was heard on both motions on January 25, 2013.

The motion judge noted that there was no evidence in the record that plaintiff put GEICO on notice that there was any need for future treatments. At oral argument, plaintiff stressed that GEICO paid for the initial treatment for plaintiff's post-traumatic stress disorder, knew of the severity of her injury, and, therefore, plaintiff contends GEICO was knowledgeable that she may need treatment later. Plaintiff emphasized to the court that GEICO was charged with that knowledge "just based on the nature of her post-traumatic stress diagnosis . . . ."

The motion judge recognized that "the case law makes an exception" to the statute of limitations with regard to "different injuries" from the injuries suffered by the plaintiff or a "reoccurrence" of injuries. The judge found that there was no basis in the facts before him for "the exception of a reoccurrence" and that plaintiff's "intention to have future payments does not automatically bind the carrier." The judge concluded 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 January 25, 2013, granting defendant's motion for summary judgment and dismissing plaintiff's complaint with prejudice. This appeal followed.

II.

In reviewing an order granting summary judgment, we apply the same standard as employed by the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Accordingly, we must decide whether

[T]he competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the non-moving party. . . . If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a "genuine" issue of material fact for purposes of Rule 4:46-2.

[Brill, supra, 142 N.J. at 540 (citation omitted).]

"Bare conclusions in the pleadings, without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment." U.S. Pipe & Foundry Co. v. Am. Arbitration Ass'n, 67 N.J. Super. 384, 399 400 (App. Div. 1961). In other words, "[a plaintiff's] self-serving assertion alone will not create a question of material fact sufficient to defeat a summary judgment motion." Pressler & Verniero, Current N.J. Court Rules, comment 2.2 on R. 4:46-2 (2013).

Furthermore, an opposing party who offers no substantial or material facts in opposition to the motion cannot complain if the court takes as true the uncontradicted facts in the movant's papers. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954). Therefore, "the essence of the inquiry

. . . is . . . 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Brill, supra, 142 N.J. at 536 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

In our review, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

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.

Here, GEICO's last payment was August 20, 2008, and the first uncompensated expense was for services rendered by Dr. Garbaccio on November 6, 2007. As noted previously, plaintiff filed her complaint on June 28, 2011. Accordingly, we conclude that plaintiff failed to meet the deadlines under the statute. However, that decision does not conclude our inquiry.

Plaintiff argues that the statute does not apply when the plaintiff's condition is such that the carrier knew or should have known at the time it first provided PIP benefits that future treatment, causally related to the accident, would be required. Plaintiff contends that the probable future treatment exception to the time bar is applicable "by virtue of the nature of [plaintiff's] injuries in and of themselves." The motion judge found no evidence to suggest GEICO knew future treatment might be necessary, thus distinguishing Lind v. Ins. Co. of N. Am., 174 N.J. Super. 363, 369 (Law Div. 1980), aff'd, 193 N.J. Super. 303 (App. Div. 1983). See also Rahnefeld v. Security Ins. Co., 115 N.J. 628, 636-37 (1989); Zupo v. CNA Ins. Co., 98 N.J. 30, 33 (1984). PIP carriers obtain protection from the statute of limitations in exchange for mandatory benefits to their insured, and we agree with the motion judge that there is nothing in the record which would adequately put GEICO on notice at the time of the last payment that future treatment would be necessary. See generally Craig and Pomeroy, N.J. Auto Ins. Law 11:2-3 at 224-26 (2012). Here there was no "reoccurrence"2 or evidence that plaintiff's condition "worsened."3

Therefore, we conclude that plaintiff did not file her lawsuit within the time prescribed by N.J.S.A. 39:6A-13.1(a).

1 The trial judge determined that, based on the facts, the timing representation was not correct. That decision is not contested in this appeal.

2 Zupo, supra, 98 N.J. at 32-33.

3 Rahnefeld, supra, 115 N.J. at 636.