On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-13032-98.
Before Judges Skillman, Cuff and Lefelt.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant Ian Campbell appeals from a motion judge's order enforcing a judgment entered pursuant to an arbitration award. Campbell seeks to vacate this order because the arbitration award was entered against him despite the fact that he had not answered the plaintiffs' complaint and was not formally present before the arbitrator. We reverse the motion judge's order and remand for further proceedings.
Automobiles driven by Grisley (also referred to by the parties as Gisely, Gisley, and Grisly) Ravelo and Campbell collided. Ravelo had three passengers at the time of the collision, Cecilia Ravelo, Yarisa DeLeon and Frendy DeLeon (the passengers). As a result of this collision, Ravelo sued Campbell and in a separate suit, Ravelo's passengers sued Ravelo and Campbell. Ravelo served Campbell and Campbell notified his insurance company, Country-Wide, of the law suit. Country-Wide engaged counsel to represent Campbell in this law suit and counsel filed an answer on Campbell's behalf.
The passengers claimed to have served Campbell through the Division of Motor Vehicles, N.J.S.A. 39:7-1 to -8, but according to Country-Wide, it never received a copy of this complaint from its insured Campbell. Thirteen days before Campbell's counsel filed an answer in the Ravelo matter, the passengers consolidated their complaint with the Ravelo suit. Thus, because the passengers were unaware of Campbell's counsel in the Ravelo matter when they moved for consolidation, they never served his counsel with a copy of the consolidation order. In fact, Campbell's counsel did not receive a copy of the order until after an arbitration was conducted in the consolidated matters.
Before the arbitration began, however, discovery was exchanged between Ravelo's and Campbell's counsels. Because Campbell's counsel in the Ravelo matter was unaware of the passengers' law suit and no answer had been filed on behalf of Campbell, the parties did not exchange any discovery in that suit. After eleven months transpired, the court notified Campbell's counsel of the arbitration. We have not been provided with copies of this arbitration notice, however, during oral argument, Campbell's counsel asserted that the notice he received only indicated that arbitration was to be conducted in the Ravelo suit.
Counsel for Campbell had a conflict on the day of the arbitration and consequently he obtained a per diem attorney to represent Campbell's interests at the arbitration. This attorney failed to advise the arbitrator of the limited nature of his representation and failed to protest when the arbitration included the passengers as well as Ravelo.
The arbitrator found Campbell 100% liable for the accident and awarded damages in both matters, awarding Ravelo $12,500 and each of the passengers $12,500. The attorney representing Campbell at the arbitration signed the award. The Ravelo lawsuit was settled after the arbitration and is not involved in this appeal. Only the passengers' suit remains at issue.
Campbell's counsel did not request a de novo hearing. Both the passengers and Ravelo, as a defendant in the passengers' law suit, therefore, moved to confirm the arbitration award. The motion judge granted the passengers' motion but denied Ravelo's motion as"untimely filed."
Thereafter, Country-Wide indicated that it would not pay the passengers' judgment because it had never answered that complaint. Counsel for the passengers filed a motion to enforce judgment or alternatively to reinstate the dispute. The motion judge did not vacate the award and restore the passengers' suit to the trial list but instead enforced the award and directed Country-Wide, as Campbell's insurer, to pay the passengers' awards. Campbell appealed from this order.
In ruling against Campbell, the motion judge relied on R. 4:21A-6(b)(1), which sets forth the steps an unsatisfied party must take in order to avoid an arbitrator's award and decision from becoming final and resolving the dispute. Under this rule, an order will be entered dismissing the action following the filing of the arbitrator's award, unless"within 30 days... a party thereto files with the civil division manager and serves on all other parties a notice of rejection of the award and demand for a trial de novo." Ibid.
The motion judge explained that"[t]he mistake or inadvertence of counsel appearing as to the scope of the arbitration, or the import of the award of the arbitration is not of the extraordinary character for which the Courts have allowed an exception to the filing of a trial de novo within 30 days after service of the same." ...