In May, 2013, I published a blog regarding the statute of limitation in New Jersey and how claims were equitably tolled during the time of the claims investigation based upon the case of Price v. New Jersey Manufacturers Insurance Company.1 While this is still the current state of the law in New Jersey, an unpublished appellate division decision has started to chip away at equitable tolling.
The case is Simpson v. Gallagher Bassett Insurance Services.2 In Simpson, the plaintiff was involved in auto accident and sought to bring an underinsured motorist claim like the plaintiff in Price. However, the court found that the plaintiff in Price relied to his detriment upon the action of the insurance company and was, essentially, induced into not filing a lawsuit before the expiration of the statute of limitations. The same sort of detrimental reliance was not found in Simpson:
Simply put, this case is not like Price, and the equitable considerations that warranted relief from the harsh consequences of the statute of limitations in that case are simply not present here. Unlike Price, where the insured responded to the insurer’s numerous requests for information, there is no evidence that plaintiffs’ former counsel ever responded to Gallagher’s repeated requests, despite its statement that it required the information to assess plaintiffs’ entitlement to coverage. Plaintiffs also ignored Gallagher’s information requests and its request for a settlement demand.
Thus, it appears that the law is shifting. If the insured or their representatives are the basis for the claims investigation to drag out, equitable tolling may not apply. The bottom line is, equitable tolling should be considered a last resort. Every effort should be made to file the suit within the prescribed statute of limitations.
1 Price v. New Jersey Manufacturers Insurance Co., 182 N.J. 519 (2005).
2 Simpson v. Gallagher Bassett Insurance Services, A–5968–11T4, 2013 WL 5311229 (N.J. Super. Ct. App. Div. Sept. 24, 2013).