Montag v. Bergen Bluestone Co.

• Decision Date: 29 October 1976
• Citation: 145 N.J.Super. 140,366 A.2d 1361
• Parties: June B. MONTAG, Plaintiff, v. BERGEN BLUESTONE COMPANY, Defendant.
• Court: New Jersey Superior Court

Page 140

145 N.J.Super. 140

366 A.2d 1361

June B. MONTAG, Plaintiff, v. BERGEN BLUESTONE COMPANY, Defendant.

Superior Court of New Jersey,

Law Division.

Oct. 29, 1976.

Gary S. Stein, Paramus, for plaintiff (Stein & Kurland, Paramus, attorneys).

John F. O'Donnell, Irvington, for defendant (Joan B. Sherman, Little Falls, attorney).

PRESSLER, J.S.C.

This motion for summary judgment raises a novel and narrow question of interpretation of that provision of the New Jersey Automobile Reparation Reform Act (No-Fault Law) which requires that a plaintiff sustaining a nonpermanent soft tissue injury meet a medical expense threshold of $200 in order to maintain a liability action against the alleged tortfeasor. N.J.S.A. 39:6A--1 Et seq., 39:6A--8. The problem here presented, one of limitations, is to determine the date on which plaintiff's cause of action accrues: is it the date of the accident or the date, if later, on which plaintiff actually incurs or is reasonably chargeable with the knowledge that she is likely to incur such medical expenses as will meet the threshold?

The factual background giving rise to this issue, as appears from the pleadings and affidavits, is relatively simple. On October 2, 1973 plaintiff June Montag was the driver of an automobile which was struck in the rear by a vehicle driven by defendant's employee. She and her two passengers were taken by ambulance to the emergency room of Hackensack Hospital and released shortly after arrival. Later that day Mrs. Montag, suffering pain in her back and neck, consulted her family physician. According to her affidavit, he treated her with muscle relaxants and diathermy on 12 occasions between October 2, 1973 and February 11, 1974, rendering a total bill for services in the amount of $125. At the time of her discharge in February 1974 she did not anticipate the necessity of any further medical treatment. She had, in fact, consulted an attorney, present counsel, shortly after the accident and was advised by him in writing, both in November 1973 and early in May 1974, the she had no cause of action for tort liability since her eligible medical expenses had not reached the $200 threshold. Late in May 1974, her pain and discomfort having become exacerbated, she consulted a chiropractor, who conducted, she says, a complete neurological and physical examination and treated her several times a week between that date and August 7, 1974, rendering a total bill of $244. On August 23, 1974 she consulted an orthopedist who rendered a bill of $50, and on September 17, 1974 she advised her attorneys that she had incurred these additional expenses. She apparently has had no further medical attentions since the summer of 1974 for these soft tissue injuries of the neck and back.

This automobile negligence action was instituted on March 10, 1976, some two years and five months following the date of the accident but less than two years after the commencement of that separate course of treatment which resulted in the exceeding of the medical expense threshold. Defendant moved for summary judgment dismissing the complaint on the ground that the action is barred bny a two-year statute of limitations which began to run on the date of the accident. It argues alternatively that plaintiff, having known of the accrual only seven or eight months after the date of the accident was, in any event, obliged to commence the action within two years after the accident date. Plaintiff's position is simply that the cause of action did not accrue for limitations purposes until she actually incurred or should have known she would incur $200 in eligible medical expenses. Since neither of those conditions occurred until May 1974, she contends that she had two full years thereafter in which to start her action and hence that the March 1976 commencement date was timely with at least two months to spare. For the reasons herein set forth, the court finds itself obliged to agree with plaintiff's contentions and, subject to the conditions hereafter stated, to deny defendant's motion.

Since the No-Fault Law itself contains no limitations provision in respect of liability actions, ¹ it is clear that the accrual question here posed can be resolved only by resort to N.J.S.A. 2A:14--2, the general statute of limitations applicable to personal injury actions, construed in light of the conceptual foundations and underlying policy considerations of that provision, and by an analysis of the extent to which, if at all, the tort liability exemption of N.J.S.A. 39:6A--8 purports to or was intended to modify the common law of tort liability.

N.J.S.A. 2A:14--2 provides simply and in full that:

Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued.

It is well settled, as a matter of judicial interpretation, that the date on which a cause of action accrues, and hence, the date from which the statute of limitations starts to run, is the date upon which the right to institute and maintain a suit first arises. Rosenau v. New Brunswick and Gamon Meter Co., 51 N.J. 130, 137, 238 A.2d 169 (1968); Fredericks v. Dover, 125 N.J.L. 288, 291, 15 A.2d 784 (E. & A. 1940). And see, Lutz v. Semcer, 126 N.J.Super. 288, 297, 314 A.2d 86 (Law Div.1974), defining the accrual date as the date upon which 'facts exist which authorize one party to maintain an action against another.' It is also well settled that there are two essential elements of a cause of action based on the alleged negligence of a tortfeasor which must exist in order to make that cause of action viable and a suit based thereon maintainable, namely, the act of negligence itself and a consequential injury resulting therefrom. Without an injury, the negligence itself is not actionable. See Rosenau v. New Brunswick and Gamon Meter Co., supra; Kovacs v. Everett, 37 N.J.Super. 133, 137, 117 A.2d 172 (App.Div.1955), certif. den. Kovach v. Kovacs, 20 N.J. 466, 120 A.2d 66 (1956).

Traditionally and customarily, where the negligence action is based on an automobile accident the cause accrues when the accident takes place. See, E.g., Raskulinecz v. Raskulinecz, 141 N.J.Super. 148, 151, 357 A.2d 330 (Law Div.1976). The obvious reason for that accrual date is that the injury is sustained when the impact occurs, whether or not the causative negligent act was virtually simultaneous with the impact or preceded it. But the concurrence of the accident and the accrual of the cause is further premised upon the common-law rule that any injury, irrespective of its extent, duration or consequence, and thus, however minimal, will sustain a cause of action. As the court noted in Lutz v. Semcer, supra, 'Any wrongful act for which the law provides a remedy resulting in injury to the person, though slight, gives right to institute an action therefor, and a cause of action accrues at that time.' See also, Rankin v. Sowinski, 119 N.J.Super. 393, 401, 291 A.2d 849 (App.Div.1972).

The whole point, however, of the tort liability exemption provision of N.J.S.A. 39:6A--8 was to alter the common-law rule by denying actionability to slight injuries sustained in automobile accidents--slight being ultimately defined as nonpermanent soft tissue injuries involving less than $200 in treatment expenses. See the report of the New Jersey Automobile Insurance Study Commission to the Governor and the Legislature, 'Reparation Reform for New Jersey Motorists,' xiii, 134b--135 (1971); Iavicoli, No Fault and Comparative Negligence in New Jersey, chapter 14 at 123 Et seq. (1971). And see, Emma v. Romano, 136 N.J.Super. 255, 258--259, 345 A.2d 385 (Law Div.1975). Thus, where the No-Fault Law applies, an injured victim, contrary to his position at common law, does not necessarily have an accrued cause of action against the tortfeasor when the accident occurs. And if his injury is of a nonpermanent soft tissue character, he will never have a cause of the action against him if he does not meet the medical expense threshold. Again, contrary to common law, the determination of whether he has a cause of action at all depends on a subsequently ascertained degree of injury. The medical expense threshold by which the actionable degree of soft tissue injury is measured is expressed by N.J.S.A. 39:6A--8 as treatment expenses 'INCURRED OR TO BE INCURRED.' IT CANNOT, THERefore, be until the injured person does incur or is reasonably chargeable with the knowledge that he will incur eligible expenses that his right to maintain his suit for common law tort liability arises, and it is that date on which, by definition, his cause of action accrues.

The court is mindful that the consequence of the failure to meet the monetary threshold is articulated by the statute in terms of the tortfeasor's exemption from suit rather than in terms of the plaintiff's right to sue ² and that ordinarily an exemption of a defendant from suit goes to the barring of plaintiff's remedy rather than to the existence of his right. The right-remedy dichotomy is, however, here regarded as casuistical rather than conceptual. ³

First, it has been suggested that the tort liability exemption of the statute is akin to such typical common law and statutory immunities as the charitable immunity, the interspousal and parental immunities and the governmental immunity. These immunities, it is further suggested, are characteristically affirmative defenses to an extant cause of action. Hence, if they are properly pleaded and proved by defendant, their effect is only to preclude plaintiff's remedy. See Fennell v. Ferreira, 133 N.J.Super. 63, 67--70, 335 A.2d 84 (Law Div.1975). There is, however, a critical distinction between that type of immunity and the tort liability exemption in respect of the monetary threshold. The immunities referred to are, in effect, status immunities. They...