Bowler v. Fidelity & Cas. Co. of New York

• Decision Date: 08 February 1968
• Docket Number: No. A--1236,A--1236
• Citation: 239 A.2d 22,99 N.J.Super. 184
• Parties: James P. BOWLER, Plaintiff-Appellant and Cross-Respondent, v. FIDELITY & CASUALTY COMPANY OF NEW YORK, Defendant-Respondent and Cross-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 184

99 N.J.Super. 184

239 A.2d 22

James P. BOWLER, Plaintiff-Appellant and Cross-Respondent, v. FIDELITY & CASUALTY COMPANY OF NEW YORK,

Defendant-Respondent and Cross-Appellant.

No. A--1236.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 9, 1967.

Decided Feb. 8, 1968.

Robert C. Gruhin, Belleville, for appellant and cross-respondent.

Stanley G. Bedford, Newark, for respondent and cross-appellant (Mead, Gleeson, Hansen & Pantages, Newark, attorneys).

Before Judges CONFORD, COLLESTER and LABRECQUE.

The opinion of the court was delivered by

LABRECQUE, J.A.D.

Plaintiff James P. Bowler appeals from a judgment of dismissal in favor of defendant Fidelity & Casualty Company of New York on his claim for total and permanent disability benefits under a policy of insurance issued by defendant. Defendant cross-appeals from that portion of the judgment which denied its motion to dismiss the complaint 'on the grounds of the statute of limitations' and ordered it to make payment to plaintiff for an additional week of total disability.

The policy in question was entitled 'Maximum Benefit Accident Policy,' and was dated January 24, 1949. It provided coverage for two types of disability, 'total' and 'total and permanent,' as well as for other losses not here relevant. As to the former, the policy provided:

'Total Disability

Article 2. If the Insured suffers total disability that within thirty days from the date of the accident continuously prevents the Insured from performing each and every duty pertaining to his occupation, the Company will pay for the period of the said disability, not exceeding two hundred consecutive weeks,

The Weekly Indemnity.'

As to the latter it provided:

'Total and Permanent Disability

Article 3. If the insured suffers total disability that within thirty days from the date of the accident continuously prevents the insured from performing each and every duty pertaining to his occupation for the period of two hundred consecutive weeks, and if at the end of the said period the Insured is Totally and permanently disabled, as the result of the bodily injury causing the said two hundred weeks' disability, and Is thereby permanently incapable of engaging in any occupation or employment for wage or profit, the Company, in addition to the Weekly Indemnity paid under Article 2, will pay an amount equal to the

Weekly Indemnity for 600 Weeks.' (Emphasis added)

In each case the weekly indemnity was $50.

The provision of the policy referable to proof of loss provided '7. Affirmative proof of loss must be furnished to the Company at its said office in case of claim for loss of time from disability within ninety days after the termination of the period for which the Company is liable, and in case of claim for any other loss, within ninety days after the date of such loss.'

The policy also provided:

'14. No action at law or in equity shall be brought to recover on this policy prior to the expiration of forty days after proof of loss has been filed in accordance with the requirements of the policy, nor shall such action be brought at all unless brought within two years from the expiration of the time within which proof of loss is required by the policy.'

This was modified by a further provision which read:

'2. If any time limitation of this policy with respect to commencing an action at law or in equity is less than that permitted by the law of the state in which the Insured resides at the time this policy issued, such limitation is hereby extended to agree with the minimum period permitted by such law.'

Plaintiff became disabled on January 31, 1954 when he accidentally broke hs leg and subsequently developed osteomyelitis. He was paid the weekly indemnity up to November 25, 1957, a period of 199 weeks. On May 24, 1964 he filed his present suit to recover the balance (one week) claimed to be due him for total (article 2) disability as well as payment for his total and permanent (article 3) disability. Defendant answered, denying that plaintiff had been totally disabled for the full 200 weeks or that he was totally and permanently disabled within the policy requirement at the end of the 200 week period. As special defenses it pleaded both the six-year statute of limitations, N.J.S. 2A:14--1, N.J.S.A., and plaintiff's failure to institute suit within the time period prescribed in the policy.

Thereafter, defendant moved for an order dismissing the complaint or limiting the period for which plaintiff might recover on the grounds that (1) the action was not commenced within two years after the time fixed by the policy for the submission of proof of loss, and (2) it was not commenced within the six-year period of limitation provided by N.J.S. 2A:14--1, N.J.S.A. Plaintiff moved, returnable at the same time, to amend the complaint to invoke the equitable jurisdiction of the court to restrain defendant, on the ground of estoppel, from taking advantage of the statute of limitations by reason of 'the acts of the defendant, and the course of action executed and designed by said defendant commencing with its willful and deliberate failure to pay the 200th consecutive week of disability, and its act subsequent thereto.'

In a letter opinion dated January 14, 1966 the trial judge found that plaintiff was entitled to payment of the weekly indemnity for the 200th week of article 2 disability. He denied both defendant's motion to dismiss and plaintiff's motion to amend the complaint, but granted leave to plaintiff to set up the claimed estoppel in a reply.

Thereafter defendant filed a motion for reargument on the grounds referred to above and on the further ground of plaintiff's failure to comply with provision 7 of the policy which required that proof of loss be filed within 90 days after occurrence of the loss. Following reargument, the trial judge, in a letter opinion dated May 5, 1966, held, in effect (as we gather from the language of the opinion), that defendant was equitably estopped from asserting the 'lack of formal notice' (proof of loss) as a bar to plaintiff's right to payment of the 200th weekly payment under article 2 but that plaintiff was barred from recovery 'with regard to the claim of coverage under article 3.' Judgment was thereupon entered awarding plaintiff the weekly indemnity for the 200th week of his disability but dismissing the complaint as to his claim for total and permanent disability benefits under article 3.

Since it was supported by answers to interrogatories, plaintiff's deposition and the testimony of one of defendant's employees, defendant's motion came within the summary judgment rule, R.R. 4:58. Proceedings under that rule are designed to provide a prompt, businesslike and inexpensive means of disposing of a cause where warranted. While they are not to be used as a vehicle for the trial by affidavit of issues involving disputed facts, where it palpably appears that there is no genuine issue of material fact presented, it is for the court to determine the motion on the applicable law. Rothman v. Silber, 90 N.J.Super. 22, 33, 216 A.2d 18 (App.Div.1966), certification denied 46 N.J. 538, 218 A.2d 405 (1966). In passing upon such a motion all papers supporting it are to be carefully scrutinized and those opposing it indulgently treated to the end that all doubts are to be resolved in favor of the opponent of the motion. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75, 110 A.2d 24 (1954). Here, the facts on which the parties relied relative to the above issues were not in substantial dispute.

Briefly summarized, it was and is plaintiff's contention that having filed proof of loss at the inception of his disability and submitted from time to time such additional proofs as were thereafter required of him by defendant, and having presented himself for physical examination by defendant's doctors whenever requested, he was under no obligation to file an additional or separate proof of loss covering his claim for total and permanent disability under article 3. Defendant contended that the statute of limitations barred plaintiff's claim under both articles 2 and 3. It also urged that its liability to plaintiff under article 3 varied substantially from that under article 2, hence it was entitled to a proof of loss referable to the former before it became obligated to make payment thereunder.

We turn first to consideration of defendant's appeal from the summary judgment awarding payment to plaintiff for the 200th week of his article 2 disability. As to this, the trial judge found that though plaintiff had engaged in some work prior thereto, he was totally disabled in the sense that he was unable to engage in his usual occupation, and this sufficed for recovery under that article.

As noted, the accident which gave rise to plaintiff's disability occurred on January 31, 1954. It is undisputed that he thereafter filed a timely and sufficient proof of loss (claimant's statement) with the company and that additional proofs were submitted from time to time (about every five weeks) during the first 199 weeks. The last of these, although not dated, was received contemporaneously with a supporting statement from plaintiff's attending physician. Both were stamped by defendant as received on November 26, 1957. It is immaterial for the purpose of this opinion whether, as contended by defendant, they were received one day earlier in its Newark office and thereafter transmitted to the New York office where they were stamped. The accompanying statement by plaintiff's physician, dated November 25, 1957, recited that plaintiff's disability 'continued to date.' Following an examination of plaintiff by him on November 26, 1957, defendant's own physician reported to defendant (by letter dated December 2, 1957) that:

'(T)his man has a very bad leg which will ultimately require amputation. In spite of this however, at this time he walks with the aid of a cane and has a...