Opinion
DOCKET NO. A-5785-10T1
04-01-2013
EMILIO A. GRUGNALE, D.C. A/S/O GREEN, LAQUATA, Plaintiffs-Respondents, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant.
David J. D'Aloia argued the cause for appellant (Saiber LLC, attorneys; Mr. D'Aloia, on the brief). Shari A. Rivkind argued the cause for respondents (The Rivkind Law Firm, attorneys; Ms. Rivkind, on the brief). Arthur J. Timins argued the cause for amicus curiae National Arbitration Forum (Shiriak & Timins, attorneys; Mr. Timins, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Fasciale and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-6032-10.
David J. D'Aloia argued the cause for appellant (Saiber LLC, attorneys; Mr. D'Aloia, on the brief).
Shari A. Rivkind argued the cause for respondents (The Rivkind Law Firm, attorneys; Ms. Rivkind, on the brief).
Arthur J. Timins argued the cause for amicus curiae National Arbitration Forum (Shiriak & Timins, attorneys; Mr. Timins, on the brief). PER CURIAM
In this Personal Injury Protection (PIP) case, defendant Allstate Insurance Company (Allstate) appeals from a February 23, 2011 order vacating a decision by a dispute resolution professional (DRP) of the National Arbitration Forum (NAF) dismissing plaintiff's PIP arbitration. We decline to exercise our supervisory function to review the merits of plaintiff's PIP award, and we dismiss the appeal pursuant to N.J.S.A. 2A:23A-18b.
We granted NAF's motion to appear as amicus curiae. NAF contends that there was no basis for the judge to remand the PIP matter to a DRP. We need not reach this issue because the judge vacated his remand ruling and conducted a de novo review.
Allstate also appealed from that part of the February 23, 2011 order entering attorneys' fees to plaintiff's counsel; an April 15, 2011 order scheduling a de novo review of plaintiff's PIP claim; a June 16, 2011 order entering a PIP award in plaintiff's favor; and an August 9, 2011 order entering sanctions against it pursuant to the Frivolous Lawsuit Statute, N.J.S.A. 2A:15-59.1. Although we have declined to review the merits of plaintiff's PIP award, as discussed infra, we reverse the imposition of sanctions because the judge did not make proper findings.
Plaintiff, a chiropractor, assisted Victor Fano, D.C., in performing a series of manipulations under anesthesia (MUA) on a patient injured in a motor vehicle accident. Dr. Fano was denied pre-authorization to perform these procedures. Allstate, the patient's PIP carrier, did not compensate them for the medical services that they rendered. Plaintiff and Dr. Fano then filed separate demands for arbitration. Their PIP arbitration proceedings were not consolidated and different DRPs resolved them.
Dr. Fano's arbitration occurred first. Dr. Fano's DRP determined that the MUAs and post-MUA medical treatment were medically unnecessary. Based on the record produced to the DRP by Dr. Fano's counsel, the DRP issued a written decision and denied Dr. Fano's PIP claim seeking reimbursement for his MUA services.
Five months later, plaintiff's arbitration proceeded. Plaintiff argued that the MUA medical services he rendered were medically necessary. Plaintiff produced the DRP's decision rendered in Dr. Fano's arbitration, and plaintiff argued that his PIP claim is not barred by the doctrine of collateral estoppel. Plaintiff maintained that Dr. Fano provided insufficient proof of medical necessity. Plaintiff's counsel contended that had plaintiff been involved in the previous arbitration, plaintiff would have produced additional medical records tending to show that the MUA services were medically necessary. The DRP invoked the doctrine of collateral estoppel declined to address the merits of plaintiff's arbitration, and dismissed plaintiff's PIP claim.
Plaintiff's counsel asserts that if plaintiff had participated in Dr. Fano's arbitration, plaintiff would have produced: clinical indicators satisfying the guidelines by the National Academy of MUA physicians; twenty-two references to the patient's pain; medical notes showing the patient's pain level and impact on her daily living; prescriptions for pain medication and the administration of trigger point injections; and the existence of spinal adhesions.
In December 2010, plaintiff filed an order to show cause in the Law Division. In February 2011, the judge determined that plaintiff was not barred from proceeding, vacated the dismissal of his PIP claim, and remanded the matter to the NAF. The NAF intervened and, in April 2011, the judge vacated his remand order. In May 2011, the judge conducted a hearing and, in June 2011, awarded plaintiff $1350 for medical services rendered. The judge also awarded attorneys' fees to plaintiff's counsel. This appeal followed.
In February 2011, the judge awarded $3180 in fees; in June 2011, he awarded $7028 in fees regarding Allstate's motion to stay payment of attorneys' fees and plaintiff's motion to enforce litigant's rights; and in August 2011, the judge awarded an additional $1295 in sanctions pursuant to the Frivolous Lawsuit Statute, N.J.S.A. 2A:15-59.1. In October 2011, we denied Allstate's motion to stay the final judgment and payment of attorneys' fees and costs.
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On appeal, Allstate argues that the judge erred by (1) conducting a de novo review; (2) misapplying the doctrine of collateral estoppel; and (3) imposing sanctions against it for seeking to stay the judgment pending appeal. We conclude that this court's supervisory function is not implicated pursuant to N.J.S.A. 2A:23A-18b.
PIP arbitration disputes are to be resolved pursuant to the New Jersey Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30. By using the APDRA, the parties waive their right to appeal to this court. Mt. Hope Dev. Assocs., EAJ, Inc. v. Mt. Hope Waterpower Project, L.P., 154 N.J. 141, 149 (1998). The APDRA provides a streamlined and limited process for a party seeking to challenge an arbitration award. N.J.S.A. 2A:23A-19 provides in part that
[t]hese proceedings shall be summary in nature and expedited. This act shall be liberally construed to effectuate its remedial purpose of allowing parties by agreement to have resolution of factual and legal issues in accordance with informal proceedings and limited judicial review in an expedited manner.Our Supreme Court explained in Mt. Hope Dev. Assocs., supra, 154 N.J. at 146, that
[(Emphasis added).]
[t]he APDRA further provides that once a court grants an order confirming, modifying, or correcting an award, "a judgment or decree shall be entered by the court in conformity therewith and be enforced as any other judgment or decree. There shall be no further review of the judgment or decree." N.J.S.A. 2A:23A-18(b).The fundamental policy of the APDRA is "'finality and limited judicial involvement.'" Id. at 149 (quoting Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349, 361 (1994)).
The appellate court's authority is limited to "those 'rare circumstances' grounded in public policy that might compel . . . limited appellate review." Id. at 152 (quoting Tretina Printing, supra, 135 N.J. at 364-65); see Ft. Lee Surgery Ctr., Inc. v. Proformance Ins. Co., 412 N.J. Super. 99, 104 (App. Div. 2010) (indicating that "when a trial judge is able to provide a rational explanation for how the arbitrator committed prejudicial error, N.J.S.A. 2A:23A-18(b) requires a dismissal of an appeal of that determination regardless of whether we may think the trial judge exercised that jurisdiction imperfectly"); N.J. Citizens Underwriting Reciprocal Exch. v. Kieran Collins, D.C., LLC, 399 N.J. Super. 40, 48 (App. Div.) (stating that "when the trial judge adheres to the statutory grounds in reversing, modifying[,] or correcting an arbitration award, we have no jurisdiction to tamper with the judge's decision or do anything other than recognize that the judge has acted within his jurisdiction"), certif. denied, 196 N.J. 344 (2008). Here, no such "rare circumstances" exist.
Rare circumstances do exist, for instance, where the trial court acted with bias, Mt. Hope Dev. Assocs., supra, 154 N.J. at 152; imposed an unauthorized remedy, Open MRI & Imaging of Rochelle Park v. Mercury Ins. Grp., 421 N.J. Super. 160, 166 (App. Div. 2011); applied a standard of review that is contrary to the statute, Morel v. State Farm Ins. Co., 396 N.J. Super. 472, 475-76 (App. Div. 2007); or acted contrary to "public policy [such that it] require[d] appellate court review," Selective Ins. Co. of Am. v. Rothman, 414 N.J. Super. 331, 341-42 (App. Div. 2010) (quoting Mt. Hope Dev. Assocs., supra, 154 N.J. at 152), aff'd, 208 N.J. 580 (2012).
Appellate review is permitted where the supervisory function of the courts is implicated. See Faherty v. Faherty, 97 N.J. 99, 109 (1984) (indicating that "the courts have a nondelegable, special supervisory function in the area of child support that may be exercised upon review of an arbitrator's award"); Allstate Ins. Co. v. Sabato, 380 N.J. Super. 463, 474-75 (App. Div. 2005) (permitting review of decision to reduce an attorney's fees award). Appellate review is not available where a party argues mistaken findings or conclusions of either the arbitrator or the trial court, even if the trial court may have exercised its review function "imperfectly." Ft. Lee Surgery Ctr., supra, 412 N.J. Super. at 104. "Any broader view of appellate jurisdiction would conflict with the Legislature's expressed desire in enacting APDRA to eliminate appellate review in these matters." Ibid. As a result, we conclude appellate review is unwarranted here.
Finally, we address Allstate's contention that the judge erred by awarding sanctions against it in response to its motion to stay the judgment pending appeal. Here, we exercise our supervisory function as we did in Allstate Ins. Co., supra, 380 N.J. Super. at 75. The judge imposed sanctions pursuant to N.J.S.A. 2A:15-59.1, which states in part that
a. (1) A party who prevails in a civil action, either as plaintiff or defendant, against any other party may be awarded all reasonable litigation costs and reasonable attorney fees, if the judge finds at any time during the proceedings or upon judgment that a complaint, counterclaim, cross-claim[,] or defense of the nonprevailing person was frivolous.We review a trial court's decision regarding frivolous litigation sanctions under an abuse of discretion standard. Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005). A trial court's decision will be considered a mistaken exercise of discretion if it was "'not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error of judgment.'" Ibid. Here, the judge made insufficient findings for us to conclude that he considered "all relevant factors." Ibid.
. . . .
b. In order to find that a complaint, counterclaim, cross-claim[,] or defense of the nonprevailing party was frivolous, the judge shall find on the basis of the pleadings, discovery, or the evidence presented that either:
(1) The complaint, counterclaim, cross-claim[,] or defense was commenced, used[,] or continued in bad faith, solely for the purpose of harassment, delay[,] or malicious injury; or
(2) The nonprevailing party knew, or should have known, that the complaint, counterclaim, cross-claim[,] or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification[,] or reversal of existing law.
We therefore decline to review the merits of plaintiff's PIP award, reverse the imposition of sanctions in the amount of $1295, and dismiss the appeal.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION