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Everett v. State Farm Indemnity Co.12/31/2002
of all medical and expense payments pursuant to N.J.S.A. 39:6A-9.1," on the grounds that State Farm paid out "PIP benefits." The total expenses sought and awarded were $1,272.69. Under the column labeled "medicals," however, no dollar amount was listed. Although plaintiff alleges State Farm included the $56.03 claim for the heating pad in its subrogation application, a breakdown of the expenditures for which reimbursement was sought does not include that particular expense. According to Willhouse, the $1,272.69 award is apportioned as follows: 1) fee for prior injury investigation - $784.15; 2) fee for independent medical examination - $450; 3) addendum fee for independent medical examination - $35; and 4) copying expenses - $3.54. Thus even though State Farm claimed reimbursement for medical expense payments, the only medical expense for which State Farm sought and received reimbursement was for the IME.
II.
On appeal plaintiff argues that in reducing the $56.03 bill for the heating pad to $46.64, as authorized by the fee schedule, and applying the balance to plaintiff's $250 deductible, State Farm's action constituted "the last payment of benefits," tolling, for two years from that date, the time period within which to file a complaint for PIP benefits. N.J.S.A. 39:6A-13.1a. Plaintiff directs our attention to State Farm's own records to support his position. A document kept by State Farm, known as a "PAYMENT RECORD," shows the following:
PAYMENT RECORD
Date of Payment $$of bill $$approved Date incurred Deductible Payment or co-pay Provider Total Paid of service Patient payment amount to date
7/1/96 56.03 46.64 l/31/96 46.64 G.S.Med.Equip. 46.64 -- --
Plaintiff alleges the bookkeeping entry on July 1, 1996, giving him credit for the $46.64, which State Farm considered the "Date of Payment," is the controlling date for purposes of tolling the statute of limitations. Accordingly, plaintiff argues that the complaint, which was filed on April 27, 1998, within two years of July 1, 1996, was timely filed. State Farm responds that the phrase "last payment of benefits" requires that a benefit actually be paid either to the claimant or the health care provider, and thus, merely making the adjustment to the fee schedule and applying the balance to the deductible or co-pay, is not sufficient.
In rendering his decision in defendant's favor on March 31, 2000, the Law Division judge found that the bookkeeping entry was not a payment of benefits. The judge concluded that the statute required the expenditure of funds by the insurance company. He said:
he question is whether or not a notation of the bill falls within the deductible, a payment is required by the statute. I don't think it is. I'm going to rule that it's not. It is not a payment. It is not the expenditure of funds by the insurance company. It's simply a notation. It's a bookkeeping entry so that they know at what point they become obligated to make payments, and that point is when the bills reach the - reach the threshold, whatever the threshold might be. So, the motion for summary judgment is going to be granted.
III.
To decide whether plaintiff's complaint was timely filed, we need to interpret N.J. S. A. 39:6A-13.1a. The pertinent portion of the statute reads as follows:
Every action for the payment of 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 e
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