Supreme Court, Appellate Division, Fourth Department, New York.

Kimberly Mitchell CONVERSE, Plaintiff–Respondent,

v.

DOLE FOOD COMPANY, INC., Dole Fresh Fruit Company, Defendants–Appellants,

and

Leonard’s Express, Inc., Defendant. (Appeal No. 3.)

 

Sept. 28, 2012.

 

Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo (R. Anthony Rupp, III, of Counsel), for Defendants–Appellants.

 

Cantor, Dolce & Panepinto, P.C., Buffalo (Stephen C. Halpern of Counsel), for Plaintiff–Respondent.

 

PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND MARTOCHE, JJ.

 

MEMORANDUM:

*1 [1] Plaintiff commenced this action seeking damages for injuries she sustained when the tractor-trailer she was operating was involved in a one-vehicle rollover accident. Plaintiff alleged, inter alia, that Dole Food Company, Inc. and Dole Fresh Fruit Company (collectively, defendants) were negligent in the manner in which they loaded the cargo that she was hauling, i.e., approximately 40,000 pounds of bananas. Supreme Court properly denied defendants’ motion for summary judgment dismissing the complaint against them. Although defendants established their entitlement to judgment by establishing that the load was less than the maximum allowable weight under federal law and that the contents were secured to prevent shifting during transit, we nevertheless conclude that plaintiff raised an issue of fact based on expert opinion sufficient to defeat the motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

 

[2] We reject defendants’ contention that the affidavit of one of plaintiff’s experts, a mechanical engineer, is speculative and conclusory. That expert opined that the static stability level of the tractor-trailer was “unusually low,” thereby creating a high center of gravity and an increased risk of a rollover accident. Although there are no industry standards regarding the static stability level, he relied on the results of tilt-table tests conducted at the University of Michigan Transportation Research Institute (Institute), which evaluated the static stability level of the vehicle that plaintiff was operating, and, inter alia, research conducted at the Institute regarding the increased potential for rollover accidents involving vehicles with a static stability level below a certain level (see Edwards v. St. Elizabeth Med. Ctr., 72 A.D.3d 1595, 1596, 899 N.Y.S.2d 499). In light of our determination that plaintiff raised an issue of fact, we need not address defendants’ remaining contentions with respect to the affidavit of plaintiff’s second expert.

 

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

AAA MID–ATLANTIC INSURANCE COMPANY OF NEW JERSEY, Plaintiff–Respondent,

v.

SWSNUJ WAREHOUSING, INC. and Liberty Mutual Insurance Co., Defendants,

and

Navigator Insurance Company, Defendant–Appellant.

 

Argued Sept. 19, 2012.

Decided Oct. 1, 2012.

 

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L–5975–10.

John M. Bashwiner argued the cause for appellant (Bashwiner and Deer, LLC, attorneys; Mr. Bashwiner, of counsel; Joseph A. Deer, on the briefs).

 

Sandra S. Grossman argued the cause for respondent (Law Offices of Steven G. Kraus, attorneys; Ms. Grossman, on the brief).

 

Before Judges ESPINOSA and GUADAGNO.

 

PER CURIAM.

*1 Plaintiff AAA Mid–Atlantic Insurance Company of New Jersey (AAA) paid over $170,000 in personal injury protection (PIP) benefits to its insured, Samuel R. Whitaker, Jr., following an accident that occurred on September 30, 2008. Whitaker was injured when his vehicle was struck by a commercial vehicle owned by SWSNUJ Warehousing Inc. (SWSNUJ). Because SWSNUJ was not required to maintain PIP coverage for the vehicle, see N.J.S.A. 39:6A–2(a), AAA was authorized by N.J.S.A. 39:6A–9.1 to seek reimbursement from SWSNUJ for the PIP benefits it paid.

 

On October 12, 2010, AAA filed a complaint against SWSNUJ; its primary liability insurer, defendant Liberty Mutual Insurance Company (Liberty Mutual); FN1 and SWSNUJ’s excess liability insurer, defendant Navigator Insurance Company (Navigator); seeking reimbursement or, in the alternative, compelling defendants to submit to arbitration. An answer was filed on behalf of Navigator and SWSNUJ that included the defense that the complaint was barred by the statute of limitations. In March 2011, AAA filed a motion seeking a declaratory ruling that its action was timely filed and striking the statute of limitations defense. The motion was granted in June 2011. Thereafter, AAA filed a motion to compel arbitration pursuant to N.J.S.A. 39:6A–9.1. Defendants Navigator and SWSNUJ opposed the motion and filed a cross-motion to extend discovery. The trial court granted AAA’s motion and denied defendants’ motion in November 2011. Navigator now appeals from the orders that granted declaratory relief and compelled them to arbitrate the matter.

 

FN1. A stipulation of dismissal of the complaint against Liberty Mutual was later filed because its policy limits had been exhausted.

 

The central issue in this appeal is whether the complaint seeking reimbursement was timely filed pursuant to N.J.S.A. 39:6A–9.1, which states in pertinent part:

 

An insurer … paying [PIP] benefits … shall, within two years of the filing of the claim, have the right to recover the amount of payments from any tortfeasor who was not, at the time of the accident, required to maintain [PIP] protection … coverage[.]

 

[ (Emphasis added).]

 

Whitaker’s application for PIP benefits was dated October 9, 2008, and received by AAA on October 15, 2008. The trial court considered the operative date for the limitations period to be October 9, 2008, the date the application was signed by the insured. Because a two-year period calculated from that date ended on a holiday weekend, the court concluded that the filing of the complaint on October 12, 2010 was timely.

 

Navigator argues that the two-year period began earlier, on October 3, 2008, when AAA established a reserve pursuant to N.J.S.A. 17:17–18. Navigator reasons that the action of posting a reserve “had to have been the result of some type of receipt, acknowledgement or filing of the claim by its insured, thus triggering the limitations period[,]” and rendering the October 12, 2010 complaint untimely. It argues that the court erred in granting the declaratory relief and not permitting it discovery to clarify the date the claim was “filed.”

 

*2 The statute does not provide a definition for “the filing of the claim” date that triggers the two-year period. In N.J. Mfrs. Ins. Group v. Holger Trucking Corp., 417 N.J.Super. 393 (App.Div .2011), plaintiff (NJM) filed a complaint seeking reimbursement more than two years after its insured first advised NJM of the accident and more than two years after NJM opened a file, assigned it a number, received medical bills and treatment plans and approved the treatment plan. Id. at 395–96. However, the complaint was filed within two years of the date that NJM received its insured’s formal PIP application.   Id. at 396. We reviewed the competing arguments as to whether the complaint was timely filed in light of established principles of statutory interpretation and concluded that “it is the submission of the PIP claim form that triggers the two-year limitations period contained in N.J.S.A. 39:6A–9.1.” Id. at 400.

 

We discern no reason to depart from this conclusion. Therefore, because the complaint was filed within two years of the date AAA received Whitaker’s application to receive PIP benefits, the complaint was timely filed and arbitration was properly compelled.

 

Affirmed.