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Korshalla v. Liberty Mutual Insurance Co.

Decided: November 21, 1977.

ANDREW KORSHALLA, PLAINTIFF,
v.
LIBERTY MUTUAL INSURANCE COMPANY, E. JAMES FERRARA, AMERICAN ARBITRATION ASSOCIATION, DEFENDANTS



Cohen, J.c.c., Temporarily Assigned.

Cohen

[154 NJSuper Page 236] This action seeks to set aside an arbitrator's decision. In his complaint plaintiff says it was "the result of passion, prejudice, partiality,

and/or the result of inadvertence or neglect and was arbitrary and capricious." The matter is here on plaintiff's motion to compel the deposition of the arbitrator and a defendant's motion for summary judgment.

The arbitration arose out of an uninsured motorist endorsement, a required auto insurance provision affording coverage for payment of sums the insured "shall be legally entitled to recover as damages from the operator or owner of an uninsured automobile, or hit and run automobile * * *" N.J.S.A. 17:28-1.1. The policy permissibly provided for arbitration in the event of disagreement between insurer and insured.

It all started with an auto collision on October 3, 1973. Plaintiff was a rear-seat passenger in an auto insured by Liberty Mutual when it was struck in the rear by an uninsured driver. The next day plaintiff sought medical attention. He received periodic "muscle relaxant [sic] and physiotherapy" until November 27, 1973, when he was "dismissed from care * * * as having reached a point of maximum therapeutic improvement." He had not incurred $200 in medical expense. N.J.S.A. 39:6A-8.

There the matter lay, both medically and legally quiescent, until 1975 when plaintiff returned for further therapy, passed the $200 threshold and sued his host driver and the uninsured. The precise order and causal connection of these developments does not appear.

The existence and culpability of the uninsured driver were not contested. Plaintiff's suit was, therefore, voluntarily dismissed without any payment, and plaintiff's rights were submitted to arbitration under the uninsured motorist provisions of the Liberty Mutual policy.

The single arbitrator held a hearing. Plaintiff and the insurer were represented by counsel. The issues of the extent of plaintiff's injuries and the bar of the $200 no-fault threshold were raised. Written reports by plaintiff's treating physician and the insurer's examining physician were submitted by consent. The treating physician's report was dated

in 1976. It totally omitted mention of any treatment in 1975 and diagnosed solely soft tissue injuries. In an affidavit before this court plaintiff's counsel says he offered to produce the treating physician to testify to the causal connection between his treatment and plaintiff's injuries. The arbitrator said that it "would not be necessary." No one objected to the arbitrator considering the threshold issue.

After the hearing the arbitrator rendered his decision in writing. He denied plaintiff's claim altogether. He did not say why.

In affidavits, briefs and answers to interrogatories in this action, the plaintiff says the decision should be set aside because (1) total denial makes no sense unless based on a finding of failure to meet the no fault threshold, which, plaintiff says, is not so; (2) a finding of failure to meet the threshold is a ruling on policy coverage, a matter reserved to courts and not within the submission to arbitration; and (3) the decision is unaccompanied by findings of fact or conclusions of law, in the absence of which, plaintiff ...


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