Sarah J. Mortara v. Cigna Property and Casualty Insurance Company

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
 
Sarah J. Mortara v. Cigna Property & Casualty Insurance Company (A-64- 01)
 
 
(NOTE: This Court wrote no full opinion in this case. Rather, the Court s Affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in the Per Curiam opinion below.)

Argued March 26, 2002 -- Decided April 17, 2002

PER CURIAM

The issue before the Court is whether Sarah Mortara s underinsured motorist action was properly dismissed based on the statute of limitations.

On February 19, 1993, Sarah Mortara was driving a Vineland Board of Education bus when it collided with a car driven by Herminio Cordero. Mortara was seriously injured in the accident. Cordero had an insurance policy with Royal Insurance Company, with maximum liability coverage of $50,000. Mortara had a personal liability insurance policy with Ohio Casualty containing $50,000 underinsured motorist (UIM) coverage. Mortara was also insured by the school board s policy with Cigna Property Casualty Insurance Company (Cigna), which had a $1,000,000 UIM coverage limit.

After being partially compensated by Royal Insurance on behalf of Cordero, Mortara and her husband, Angelo, ( the Mortaras) pursued UIM benefits from Ohio Casualty, the Mortaras personal automobile insurer. The Mortaras properly provided a settlement notice to Ohio Casualty. When they did not receive a response, the Mortaras filed a complaint and Order to Show Cause, seeking to compel UIM arbitration. Ohio Casualty agreed to arbitration and, in reliance, the Mortaras voluntarily dismissed their complaint on August 1, 1996. After the dismissal, instead of beginning arbitration, Ohio Casualty took the position the Cigna, the school board s insurer, should be the primary source for UIM benefits.

The Mortaras then sought UIM coverage from Cigna. Despite forwarding several written claims to Cigna, the insurer failed to respond. Finally, Cigna denied coverage on March 20, 1998 and again on August 5, 1998.

On January 14, 2000, the Mortaras filed a verified complaint and Order to Show Cause against Cigna seeking to compel UIM arbitration. On May 24, 2000, the Mortaras amended their complaint to add Ohio Casualty as a defendant. The trial court dismissed the Mortaras UIM action based on the statute of limitations.

The Appellate Division affirmed the decision of the trial court dismissing the complaint. The Appellate Division noted that the Mortaras had six years from the date of the accident to file their claim; therefore, the complaint should have been filed no later than February 19, 1999. The court reasoned that the Mortaras knew by August 5, 1998 that both Cigna and Ohio Casualty were denying coverage. Nonetheless, they failed to file their complaint until almost a year later, well after the statute of limitations had expired. The court further noted that the invocation of the doctrine of equitable estoppel would not be appropriate. Both insurance carriers had received notice of the claim and disputed the claim for specific reasons. According to the Appellate Division, estoppel is not warranted even though Ohio Casualty initially agreed to arbitration before deciding that it was only secondarily liable on the claim. The Mortaras reliance on Ohio Casualty s initial willingness to arbitrate could not be considered the cause for their failure to comply with the statute of limitations.

The Supreme Court granted certification.

 
 
HELD: Judgment of the Appellate Division is affirmed for the reasons expressed in the Per Curiam opinion below. The Mortaras' claims against Cigna and Ohio Casualty for underinsured motorist coverage were properly dismissed for failure to comply with the statute of limitations.

CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, and ZAZZALI join in this PER CURIAM opinion. JUSTICE STEIN did not participate.

SUPREME COURT OF NEW JERSEY
A- 64 September Term 2001
 
 
SARAH J. MORTARA and ANGELO J. MORTARA, her husband,

Plaintiffs-Appellants,

v.
 
CIGNA PROPERTY & CASUALTY INSURANCE COMPANY and OHIO CASUALTY INSURANCE COMPANY,

Defendants-Respondents.

Argued March 26, 2002 Decided April 17, 2002

On certification to the Superior Court, Appellate Division, whose opinion is reported at N.J. Super. (2001).

Michael L. Testa argued the cause for appellants (Basile & Testa, attorneys; Walter A. Schultz, Jr., on the brief).

Gerard W. Quinn argued the cause for respondent Cigna Property & Casualty Insurance Company (Cooper Perskie April Niedelman Wagenheim & Levenson, attorneys).

Salvatore A. Alessi argued the cause for respondent Ohio Casualty Insurance Company (Mr. Alessi, attorney; Melville D. Lide, on the brief).

PER CURIAM
The judgment is affirmed, substantially for the reasons expressed in the Per Curiam opinion of the Appellate Division, reported at ___ N.J. Super. ___ (2001).

CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, and ZAZZALI join in this PER CURIAM opinion. JUSTICE STEIN did not participate.
 

SUPREME COURT OF NEW JERSEY

NO. A-64 SEPTEMBER TERM 2001
ON CERTIFICATION TO Appellate Division, Superior Court

SARAH J. MORTARA and ANGELO
J. MORTARA, her husband,

Plaintiffs-Appellants,

v.

CIGNA PROPERTY & CASUALTY
INSURANCE COMPANY and OHIO
CASUALTY INSURANCE COMPANY,

Defendants-Respondents.

DECIDED April 17, 2002
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY

CHECKLIST AFFIRM
CHIEF JUSTICE PORITZ X
JUSTICE STEIN ------------
------------- --------------- JUSTICE COLEMAN X
JUSTICE LONG X
JUSTICE VERNIERO X
JUSTICE LaVECCHIA X
JUSTICE ZAZZALI X
TOTALS 6