The Appellate Division reversed the trial court's order. Cole v. Jersey City Med. Ctr., 425 N.J.Super. 48, 39 A.3d 909 (App.Div.2012). After noting the presumption against waiver of an arbitration agreement, the panel stated: “The key to determining waiver is the absence or presence of prejudice to the party objecting to the arbitration.
Without question, "'a waiver will preclude the enforcement of a contractual provision to arbitrate.'" Cole v. Jersey City Med. Ctr., 425 N.J. Super. 48, 56 (App. Div.) (quoting Spaeth v. Srinivasan, 403 N.J. Super. 508, 514 (App. Div. 2008)), certif.
But with Cole[v. Jersey City Medical Center, 425 N.J. Super. 48 (App. Div. 2012), aff'd as modified by, 215 N.J. 265 (2013),] one of the considerations that Cole is talking about is you don't start arbitrating after one side gets to do extensive discovery. And while there's morediscovery to be done here, document production and interrogatories that produce hundreds of thousands of pages of documents is substantial.
Plaintiff maintained that he had a contractual right to UIM arbitration. Defendant objected to the motion and argued that plaintiff waived his right to UIM arbitration relying on Cole v. Jersey City Medical Center, 425 N.J. Super. 48 (App. Div. 2012), certif. granted, 212 N.J. 198 (2012).
Karen Cole v. Jersey City Medical Center, Liberty Anesthesia Associates, LLC, Jersey City Medical Center, Liberty Anesthesia Associates, LLCLower Court Citation or Number: 425 N.J.Super., 48, 39 A.3d 909 Disposition: Granted.
Furthermore, res judicata is an affirmative defense that is waived if not timely presented in a responsive pleading. R. 4:5-4; see Cole v. Jersey City Med. Ctr., 425 N.J.Super. 48, 57 (App. Div. 2012). Moreover, the claims here were not previously adjudicated on their merits.
Rule 4:5-4 requires that "[a] responsive pleading shall set forth specifically and separately a statement of facts constituting an avoidance or affirmative defense[.]" Although the failure to set forth an affirmative defense in a responsive pleading may constitute a waiver of that defense, see Cole v. Jersey City Med. Ctr., 425 N.J. Super. 48, 57 (App. Div.), certif. granted, 212 N.J. 198 (2012), this "rule of pleading" is not an "absolute mandate."
However, the interpretation of a contract is ordinarily a legal question for the court, which is subject to de novo appellate review. Kieffer v. Best Buy, 205 N.J. 213, 222 (2011); Cole v. Jersey City Med. Ctr., 425 N.J. Super. 48, 56 (App. Div.), certif. granted, 212 N.J. 198 (2012).
Ibid. This case is also plainly distinguishable from Cole v. Jersey City Med. Ctr., 425 N.J. Super. 48 (App. Div.), certif. granted, 212 N.J. 198 (2012).
Likewise, we review de novo a trial court's legal interpretations and its construction of arbitration clauses. See Cole v. Jersey City Medical Center, 425 N.J. Super. 48, 56 (App. Div.), certif. granted, 212 N.J. 198 (2012); Alfano v. BDO Seidman, LLP, 393 N.J. Super. 560, 573 (App.