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Plaintiff’s Counsel’s Negotiations With Insurance Carrier Did Not Toll The Statute Of Limitations For Personal Injury Suit

By on April 14, 2022 in Statute of Limitations with 0 Comments

In an interlocutory appeal, the Appellate Division considered the timeliness of plaintiff’s complaint for personal injuries arising from a June 2, 2019 motor vehicle accident. The trial court had denied the defendant’s motion to dismiss the complaint due to it not being timely filed.  In Richardson v. Miller-Murden, 2022 N.J. Super. Unpub. LEXIS 573 (App. Div. April 11, 2022), the defendant sought to overturn the trial court decision that the plaintiff’s complaint filed one week after the two year statute of limitations expired constituted substantial compliance with the statute of limitations, allowing equitable tolling of the plaintiff’s claim.

Under New Jersey Law, a complaint for a personal injury must be filed within two years of the accident pursuant to N.J.S.A. 2A:14-2.  Prior to the expiration of the two year statute of limitations, plaintiff’s counsel had sent a letter of representation to the defendant’s insurance carrier on August 23, 2019 and had e-mail communications with the carrier on March 24, 2021 and May 14, 2021.  The latter communication included a large demand package.  However, plaintiff did not file her lawsuit until June 9, 2021, seven days after the statute of limitations ran on June 2, 2021.

Plaintiff’s counsel provided several reasons for the late filing, primarily arguing that he was in substantial compliance because liability was not at issue and he was negotiating the damages claim with the insurance carrier.  Also, he argued that the carrier failed to alert him that the statute of limitations was about to run.  Plaintiff’s counsel also argued that he was out of the country unexpectedly and could not file the complaint by the statute of limitations deadline.  Finally, plaintiff’s counsel further argued that he was “lulled by the carrier’s settlement discussions into believing litigation would be unnecessary.” 

The defendant, however, argued that a notice of claim to an insurance company does not toll the statute of limitations, the plaintiff took no steps to obtain an agreement tolling the statute of limitations, electronic filing does not impede an attorney who is out of the country from timely filing a complaint and, further, the pleading eventually filed was a template, 2-page document which required much less time to prepare than the large demand package sent to the insurance carrier 26 days earlier.

The trial court found that there was “substantial compliance” with the statute of limitations because the carrier had notice of the claim and there was no prejudice to defendant, as the filing occurred only a week after the statute of limitations had expired. 

The Appellate Division disagreed with this ruling.  The Court found that the plaintiff had not demonstrated substantial compliance with the statute of limitations.  Further, the Appellate Division held that notice of a claim or mere negotiations cannot serve to toll statute of limitations.  The Court noted that “the carrier had no affirmative obligation to remind plaintiff the statute of limitations was about to expire.”

The Appellate Division found nothing in the record that would support a finding of substantial compliance with the statute of limitations.  The Court noted that the plaintiff had not demonstrated that the parties were engaged in protracted settlement negotiations or the carrier had requested any specific examination or information from plaintiff.  When plaintiff’s counsel sent the large demand package to the carrier 26 days before the statute of limitations expired, he made no mention of the statute or tolling it.

Further, the Court noted that there was no general compliance with this statute – no phone call, e-mail, or letter to the carrier notifying it that counsel was out of the country and would not be able to timely file the complaint.  There was no reasonable explanation why the action ultimately taken by counsel, having substitute counsel file the pleading in his absence, could not have been taken prior to the expiration of the deadline. Because the Appellate Division found that there were insufficient facts supporting equitable tolling in this matter, it reversed the trial court decision.  The Court remanded the matter to the trial court for entry of an order dismissing the complaint.

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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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