JOSEPHHUTCHKO v. JOHN B. DELBENE
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1648-16T2
JOSEPH HUTCHKO,
Plaintiff-Appellant,
v.
JOHN B. DELBENE,
Defendant-Respondent.
____________________________
Argued November 27, 2017 – Decided February 16, 2018
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Docket No.
L-0960-16.
Michael J. Veneziani argued the cause for
appellant (Freedman & Lorry, PC, attorneys;
Michael J. Veneziani, on the brief).
Deborah C. Halpern argued the cause for
respondent (Parker Young & Antinoff, LLC,
attorneys; Deborah C. Halpern, on the brief).
PER CURIAM
Plaintiff Joseph Hutchko appeals from an order dismissing his
complaint because it was filed one day beyond the two-year statute
of limitations for a personal injury action. See
N.J.S.A. 2A:14-
2(a). Because we are convinced the record is bereft of any
evidence that plaintiff was induced or tricked into filing his
complaint outside of the limitations period, we affirm.
I.
On August 1, 2014, plaintiff was injured in an automobile
accident which he alleges in the complaint was caused by defendant
John B. Delbene's negligence. On September 9, 2014, plaintiff's
counsel sent a letter of representation to defendant's insurance
carrier, New Jersey Manufacturers Insurance Company (NJM). In
response, NJM requested that counsel provide medical reports and
other information related to plaintiff's claim, and advised
plaintiff's cooperation was expected if an independent medical
examination (IME) became necessary.
On April 6, 2015, NJM sent plaintiff's counsel a letter,
again requesting information concerning plaintiff's status and
copies of medical bills and records. Plaintiff's counsel did not
respond to the request. Almost one year later, in March 2016, NJM
sent a letter to plaintiff's counsel requesting the same
information and renewing its request for copies of plaintiff's
medical bills and reports.
By letter dated May 12, 2016, plaintiff's counsel provided
NJM with insurance information, medical bills and reports, as well
as other information related to the accident and plaintiff's
2 A-1648-16T2
injuries. The letter also included a monetary settlement demand.
On May 20, 2016, an NJM's claims adjuster told plaintiff's counsel
that plaintiff's demand "would not be evaluated without an [IME]
due to issues pertaining to the verbal threshold." On the same
day, plaintiff's counsel advised NJM he was filing a complaint in
Camden County.
Three days later, NJM wrote to Dr. Larry Rosenberg, requesting
that he conduct plaintiff's IME. The letter was also sent to
plaintiff's counsel. The IME was scheduled for July 20, 2016. NJM
requested that Dr. Rosenberg provide NJM with a typed report no
later than ten days after the IME.
Dr. Rosenberg notified NJM that the IME needed to be
rescheduled. On June 23, 2016, NJM sent correspondence to Dr.
Rosenberg and plaintiff's counsel advising the IME had been
rescheduled for August 5, 2016. Plaintiff's counsel received the
letter, but there were no further communications between
plaintiff's counsel and NJM until August 2, 2016, one day after
the statute of limitations expired.
On August 2, 2016, a new claims adjuster from NJM called
plaintiff's counsel and asked if a complaint had been filed. 1
Later that day, plaintiff's counsel filed a one-count complaint
1
The record does not include any additional information
concerning what was said during the conversation.
3 A-1648-16T2
alleging defendant's negligence caused the accident and
plaintiff's injuries. The following day, NJM cancelled
plaintiff's August 5, 2016 IME because a complaint had been filed.
Defendant moved to dismiss the complaint, arguing plaintiff's
claim was barred by the statute of limitations. In opposition,
plaintiff relied on his counsel's certification, which averred
that because NJM did not deny coverage or plaintiff's claim during
the limitations period, he was led to believe efforts to resolve
the case would continue after the IME. Defendant submitted an
affidavit from Sharon O'Brien, a supervisor in NJM's bodily injury
department. O'Brien represented NJM's records reflected that on
May 20, 2016, plaintiff's counsel said he "would be filing suit
in Camden County." She also stated NJM never indicated the matter
would be settled, the July 20, 2016 IME was rescheduled at Dr.
Rosenberg's request and, following the rescheduling of the IME,
there were no further communications with plaintiff's counsel
until after the statute of limitations expired.
The court heard oral argument and granted the dismissal in a
written opinion and order. The court rejected plaintiff's claim
he was entitled to equitable tolling of the statute of limitations.
The court found "NJM's conduct was not sufficient to lull plaintiff
into a reasonable belief that the complaint did not have to be
filed within the . . . two year statute of limitations," and the
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rescheduling of the IME beyond the limitations period "without
more, was not sufficient to excuse plaintiff from meeting [his]
. . . obligation to" timely file suit. The court found no evidence
the IME was rescheduled to "trick the plaintiff or . . . lull him
into not filing suit."2
On appeal, plaintiff presents the following arguments:
POINT A
THE TRIAL [COURT] ERRED IN HOLDING THAT
PLAINTIFF JOSEPH HUTCHKO WAS NOT ENTITLED TO
AN EQUITABLE TOLLING OF THE [STATUTE] OF
LIMITATIONS SINCE DEFENDANT'S INSURANCE
CARRIER LULLED PLAINTIFF INTO A FALSE SENSE
OF SECURITY BY CONDUCT SUGGESTING THAT THE
CLAIM IN QUESTION COULD BE AMICABLY SETTLED
WITHOUT THE NECESSITY OF LITIGATION.
POINT B
THE TRIAL COURT'S RELIANCE ON UNPUBLISHED
DECISIONS OF THE APPELLATE DIVISION AS
PRINCIPAL SUPPORT FOR GRANTING THE MOTION TO
DISMISS VIOLATED R. 1:36-3.
2
The court relied upon, cited, and attached a compendium of
unreported Appellate Division decisions supporting the dismissal.
In doing so, the court erred by failing to comply with the
prohibition contained in Rule 1:36-3 against citing unpublished
opinions. "[A]s a general matter, unpublished opinions are not
to be cited by any court absent certain specified circumstances"
set forth in Rule 1:36-3. Badiali v. N.J. Mfrs. Ins. Grp.,
429 N.J. Super. 121, 126 n.4 (App. Div. 2012). No special
circumstances are extant here. We discern no reason to further
address the court's error, however, because we review the court's
decision de novo and without reliance on any unpublished decisions.
5 A-1648-16T2
II.
Although defendant filed a motion to dismiss the complaint
for failure to state a claim upon which relief may be granted, see
R. 4:6-2(e), and the court entered an order dismissing the
complaint, we consider the order as one granting summary judgment
because the court considered facts beyond those alleged in the
complaint, see R. 4:6-2(e) (providing that a motion to dismiss for
failure to state a claim shall be treated as one for summary
judgment where "matters outside the pleading are presented to and
not excluded by the court"). We therefore review the court's
order de novo, applying the same standard as the trial court.
Henry v. N.J. Dep't of Human Servs.,
204 N.J. 320, 330 (2010). We
determine whether the defendant, as the moving party, has
demonstrated the absence of genuine issues of material fact, and
whether the trial court correctly determined defendant was
entitled to judgment as a matter of law, owing no deference to the
trial court's legal conclusions. N.J. Dep't of Envtl. Prot. v.
Alloway Twp.,
438 N.J. Super. 501, 507 (App. Div. 2015).
It is not disputed the complaint was filed one day after the
two-year limitations period applicable to personal injury actions.
See
N.J.S.A. 2A:14-2(a). Plaintiff argues, however, that the
complaint was timely filed because NJM's conduct equitably tolled
the statute of limitations. We disagree.
6 A-1648-16T2
Statutes of limitations "are based on the goals of achieving
security and stability in human affairs and ensuring cases are not
tried on the basis of stale evidence." Zaccardi v. Becker,
88 N.J. 245, 256 (1982). "Consistent with that purpose, 'where
defendants are on notice of the claims, and no significant
prejudice results, the policy reasons for upholding a strict
statute of limitations recede.'" Price v. N.J. Mfrs. Ins. Co.,
182 N.J. 519, 524 (2005) (quoting W.V. Pangborne & Co., Inc. v.
N.J. Dep't of Transp.,
116 N.J. 543, 563 (1989)). Thus,
"[f]lexible applications of procedural statute of limitations may
be based on equitable principles, such as the discovery rule, or
estoppel." Id. at 524-25 (internal citation omitted).
"[T]he doctrine of equitable tolling of limitations periods
has been applied only in narrowly-defined circumstances." R.A.C.
v. P.J.S. Jr.,
192 N.J. 81, 100 (2007). For example, equitable
tolling has been applied where "the complainant has been induced
or tricked by his adversary's misconduct into allowing the filing
deadline to pass." Binder v. Price Waterhouse & Co., LLP,
393 N.J. Super. 304, 312 (App. Div. 2007) (quoting Freeman v. State,
347 N.J. Super. 11, 31 (App. Div. 2002)).
"Absent a showing of intentional inducement or trickery by a
defendant, the doctrine . . . should be applied sparingly and only
in the rare situation where it is demanded by sound legal
7 A-1648-16T2
principles and in the interest of justice." Id. at 313 (citation
omitted). "Equitable tolling 'requires the exercise of reasonable
insight and diligence by a person seeking its protection,'" ibid.
(quoting Villalobos v. Fava,
342 N.J. Super. 38, 52 (App. Div.
2001)), because even though "it 'affords relief from inflexible,
harsh or unfair application of a statute of limitations,' [it]
does not excuse claimants from exercising the reasonable insight
and diligence required to pursue their claims," ibid. (alteration
in original) (quoting Freeman,
347 N.J. Super. at 31).
In Price,
182 N.J. at 525-26, the Court held that the carrier,
NJM, could not rely on the statute of limitations to bar the
plaintiff's uninsured motorist claim, after it received early
notice from plaintiff of the claim, and thereafter sought and
received from plaintiff various information necessary to evaluate
plaintiff's claim over the course of several years. The Court
concluded that "the record amply supports the trial court's finding
that NJM's conduct lulled plaintiff and his counsel into believing
that the [UM] claim had been properly filed. Plaintiff reasonably
relied on NJM's conduct in failing to file a complaint or to
request arbitration within the statute of limitations period."
Id. at 527.
NJM's conduct here does not fall within the narrowly-defined
circumstances permitting equitable tolling of the limitations
8 A-1648-16T2
period. To the contrary, NJM diligently requested information
concerning plaintiff's alleged injuries and medical records in
September 2014 and advised plaintiff an IME might be required to
evaluate his claim. It was not until May 2016, however, that NJM
was first provided with the requested information and records.
NJM thereafter immediately scheduled the IME, which was then
rescheduled based solely on Dr. Rosenberg's request.
During the limited communications between NJM and plaintiff's
counsel, NJM stated only that it needed the requested information
to "evaluate" plaintiff's claim. NJM and plaintiff's counsel
never engaged in settlement discussions, NJM never said plaintiff
should not file a complaint, and NJM made no commitment the matter
would be settled without the need for filing a timely complaint.
Plaintiff's counsel does not dispute NJM's assertion that on May
20, 2016, he advised NJM he intended to file a complaint in Camden
County. Thus, NJM had reason to believe plaintiff would file a
complaint; plaintiff's counsel told NJM so.
We find no evidence NJM engaged in trickery by rescheduling
the IME. To the contrary, the IME was rescheduled solely at Dr.
Rosenberg's request. There is no evidence the IME was rescheduled
to take advantage of the looming expiration of the limitations
period.
9 A-1648-16T2
In plaintiff's counsel's opposition to the dismissal motion,
he claims only that it was NJM's failure to deny plaintiff's "claim
or disclaim coverage during the limitations period . . . [that]
led him to believe that efforts to resolve the matter before
engaging in litigation would continue after [p]laintiff's IME."
In his certification, however, plaintiff's counsel acknowledges
that on May 20, 2016, the NJM claims adjuster advised him that the
settlement demand "would not be evaluated without an [IME] due to
issues pertaining to the verbal threshold." Thus, NJM did advise
plaintiff's counsel during the limitations period of its position
concerning plaintiff's claim.3
Plaintiff's counsel knew on May 20, 2016, NJM would not make
a decision on the claim until after the IME and, on the same day,
he told the claims adjuster suit would be filed in Camden County.
Thereafter, the only communications between plaintiff's counsel
and NJM prior to the expiration of the limitations period concerned
3
We observe that any purported failure of NJM to make a final
decision on plaintiff's claim within the limitations period was
the result of the long-delayed delivery of plaintiff's medical
records and insurance information. As noted, NJM first requested
the records and information in September 2014, but plaintiff did
not provide them until May 2016. NJM then immediately scheduled
the IME, which it advised at the outset might be required to
evaluate plaintiff's claim. Cf. Price,
182 N.J. at 527 (finding
equitable tolling where carrier had all of the requested and
necessary medical information but failed to deny plaintiff's claim
or coverage during the limitations period).
10 A-1648-16T2
the scheduling of the IME. We find nothing in those communications
or any action by NJM, however, that could have reasonably lulled
or induced plaintiff into believing he was relieved of his burden
of filing a timely complaint. See Binder,
393 N.J. Super. at 312.
In any event, the mere fact that settlement discussions might
have followed the expiration of the limitations period does not
support a finding of equitable tolling. "A claim must be commenced
by filing a complaint and is not commenced by writing letters or
negotiating with one's adversary." Mortara v. Cigna Prop. & Cas.
Ins. Co.,
356 N.J. Super. 1, 3-4 (App. Div. 2001), aff'd o.b.,
174 N.J. 566 (2002). It was plaintiff's burden to file his complaint
within the limitations period. Cruz-Diaz v. Hendricks,
409 N.J.
Super. 268, 279 (App. Div. 2009). Plaintiff simply failed to do
so here.
Affirmed.
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