                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4531-17T2

KEVIN LONERGAN,

          Plaintiff-Appellant,

v.

TOWNSHIP OF SCOTCH PLAINS,

     Defendant-Respondent.
_______________________________

                    Submitted May 15, 2019 – Decided May 29, 2019

                    Before Judges Currier and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Docket No. L-3700-16.

                    Mandelbaum Salsburg PC, attorneys for appellant
                    (Steven I. Adler, on the briefs).

                    Rainone Coughlin Minchello, LLC, attorneys for
                    respondent (Amanda E. Miller, of counsel and on the
                    brief; Conor J. Hennessey, on the brief).

PER CURIAM
       Plaintiff Kevin Lonergan appeals from an April 25, 2018 order denying

his request for reimbursement from defendant Township of Scotch Plains

(Township) for health insurance premiums. We affirm.

       In 2007, after eleven years of service, plaintiff retired from the Township's

police department due to a disability. When plaintiff retired, he asked if the

Township would pay his retiree health insurance premiums in accordance with

the collective bargaining agreement (CBA). The Township advised it would

not.

       According to plaintiff, a Township administrator explained he could opt

into the State Health Benefits Plan, but he would have to sign a form, stating he

was ineligible for employer-paid health insurance, in order to enroll in that plan.

Plaintiff signed the form on May 23, 2007, and enrolled in the State Health

Benefits Plan.

       Plaintiff remained enrolled in the State Health Benefits Plan from 2007 to

2017. In 2017, the cost for his health insurance increased and he opted out of

the State Health Benefits Plan, purchasing a less expensive health insurance plan

through the private-sector.

       On November 16, 2016, plaintiff filed suit against the Township, seeking

reimbursement for the health insurance premiums he paid under the State Health


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Benefits Plan. Relying on Brick Township PBA Local 230 v. Township of

Brick, 446 N.J. Super. 61 (App. Div. 2016), plaintiff argued "a police officer

who retired due to a disability was eligible for health insurance paid for by [the

municipality]." Plaintiff asserted that the Township breached the CBA by not

paying for his health insurance upon retirement.

      Article XVIII of the CBA in effect on the date of plaintiff's retirement

explained the payment of medical and health insurance benefits for retiring

police employees as follows:

                  Effective for each Employee retiring after
            January 1, 1987, pursuant to New Jersey Police and
            Firemen's Pension System statutes, medical insurance
            will be provided for these retired members subject to
            the following condition:

                  (A) If the retiree is covered by any other medical
            insurance from any source, then the [T]ownship shall
            not have any obligation during such period of this
            coverage.

                  ....

                  (F) Said entitlements to retired members shall be
            paid not later than the end of December . . . .

      The Township contended health insurance coverage was available only

for retirees who accrued twenty-five years or more of service and excluded




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                                        3
disability retirees. The Township took this position based on N.J.S.A. 40A:10-

23(a), which provides:

            The employer may, in its discretion, assume the entire
            cost or a portion of the cost of such coverage and pay
            all or a portion of the premiums for employees a. who
            have retired on a disability pension, or b. who have
            retired after 25 years or more of service credit in a State
            or locally administered retirement system and a period
            of service of up to 25 years with the employer at the
            time of retirement, such period of service to be
            determined by the employer and set forth in an
            ordinance or resolution as appropriate . . . .

      In denying plaintiff's cross-motion for summary judgment and granting

the Township's motion for summary judgment, the judge found plaintiff's claim

was barred by the six-year statute of limitations applicable to contract claims

and that plaintiff's cause of action accrued when he retired in 2007. He also

rejected plaintiff's argument that the CBA constituted an "installment contract ,"

serving to commence the statute of limitations anew when the Township failed

to pay his annual health insurance cost. In addition, the judge rejected plaintiff's

argument that Brick compelled the payment of health insurance benefits for

disabled retirees.

      On appeal, plaintiff contends the judge erred in concluding his claim was

barred by the statute of limitations. In addition, plaintiff asserts the statute of

limitations was equitably tolled based on the discovery rule and the Township's

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                                         4
continuing breach of the CBA each year the Township failed to pay his annual

health insurance benefit.

      We review a trial court's summary judgment disposition de novo based

upon an independent review of the motion record, and applying the same

standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015). A court

should grant summary judgment if the record establishes there is "no genuine

issue as to any material fact challenged and that the moving party is entitled to

a judgment or order as a matter of law." R. 4:46–2(c). We "review the facts in

the light most favorable to" the non-moving party. DiProspero v. Penn, 183 N.J.

477, 482 (2005) (citing R. 4:46-2(c)).

      We first consider whether plaintiff's claims are barred by the six-year

statute of limitations under N.J.S.A. 2A:14-1. Plaintiff contends the CBA was

a continuing contract and a new cause of action arose each year the Township

failed to pay his health insurance costs. He also argues that the statute of

limitations should be equitably tolled under the discovery rule and doctrine of

estoppel.

      N.J.S.A. 40A:10-23(a) provides an employer, in its discretion, may

assume the cost of health insurance payments subject to certain pre-conditions,

including twenty-five years or more of service in the State or local retirement


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                                         5
system. Plaintiff contends the CBA allegedly required the Township's payment

of a retiree's health insurance. Because plaintiff's cause of action is based on a

contract, the CBA, it is subject to a six-year statute of limitations. 1

      In accordance with N.J.S.A. 2A:14-1, any action for "recovery upon a

contractual claim or liability, express or implied," must be commenced within

six years. The applicable period of limitations runs when a plaintiff "knows or

should know the facts underlying" the elements of a cause of action, rather than

"when a plaintiff learns the legal effect of those facts." Grunwald v. Bronkesh,

131 N.J. 483, 493 (1993) (citing Burd v. N.J. Tel. Co., 76 N.J. 284, 291–92

(1978)).

      Although petitioner failed to argue to the motion judge that the statute of

limitations should have been tolled under the discovery rule and the doctrine of

equitable estoppel, we elect to address the issue. See Nieder v. Royal Indem.

Ins. Co., 62 N.J. 229, 234 (1973).




1
  We reject plaintiff's argument that the CBA is an installment contract and each
year that the Township failed to pay his health insurance costs constituted a
continuing breach for calculating accrual of his cause of action. Plaintiff cited
no case law equating a CBA with an installment contract. Moreover, plaintiff
executed a form in 2007, stating he was ineligible for employer-paid health
benefits. Thus, there was no continuing obligation on the part of the Township
to pay plaintiff's health insurance costs after 2007.
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                                          6
      We reject petitioner's discovery rule argument because the Township

advised it would not pay his health insurance in 2007. Petitioner testified at his

deposition that the Township incorrectly interpreted the CBA in 2007 when it

declined to pay his health insurance. Petitioner thus had the essential facts and

knowledge to bring a claim against the Township within the period of limitations

but did not do so because he thought it "would be a waste of breath." See

Grunwald, 131 N.J. at 193 (applying the discovery rule to "those who do not

become aware of their injury until the statute of limitations has expired, and

those who are aware of their injury but do not know that it may be attributable

to the fault of another."). Under these circumstances, petitioner cannot rely on

the discovery rule to toll statute of limitations.

      We similarly reject petitioner's argument that the statute of limitation was

tolled based on the doctrine of equitable estoppel. Estoppel may be invoked to

toll the statute of limitations where the defendant misled the plaintiff with

respect to the cause of action, which induced the plaintiff to refrain from filing

a timely claim. See Knorr v. Smeal, 178 N.J. 169, 178 (2003). Here, petitioner

testified that as of 2007 he believed the Township incorrectly interpreted the

CBA. Petitioner cites no conduct on the part of the Township that caused him




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                                          7
to refrain from filing his action within six years other than his own belief that

such an action would have been a waste of time.

      Plaintiff also claims his cause of action did not accrue until 2016 when he

learned of Brick. However, plaintiff's reliance on that case is misplaced because

the payment of health insurance costs in Brick involved a different statute than

the one at issue here. Moreover, the statute challenged in Brick was enacted

four years after plaintiff's retirement and the Brick case was decided nine years

after plaintiff's retirement.

      Having reviewed the record, plaintiff's claim accrued upon his retirement

from the police department in 2007.        He did not file an action seeking

reimbursement for health insurance costs until November 16, 2016, nearly nine

years after his retirement. Because we agree that plaintiff's contract claims

against the Township are barred by the six-year statute of limitations, we do not

address plaintiff's remaining arguments.

      Affirmed.




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