On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-692-05.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, Seltzer and C.L. Miniman.
This appeal involves the entire controversy doctrine, which formed the basis for an August 22, 2005, order dismissing the Burlington County Law Division complaint of plaintiffs Allstate Insurance Company*fn1 (Allstate) and Encompass Insurance Company*fn2 (Encompass) against defendants Cherry Hill Pain and Rehab Institute (Cherry Hill Pain), its principal, Dr. Anna Lee, and several of its employees, alleging violation of the Insurance Fraud Prevention Act, N.J.S.A. 17:33A-1 to -30. We reverse and remand for further proceedings.
On March 25, 2004, Cherry Hill Pain filed a declaratory judgment complaint and jury demand in the Law Division, Camden County, against plaintiffs Allstate and Encompass and four other insurance carriers,*fn3 seeking personal injury protection (PIP) reimbursement for 262 of its patients, 97 of whom were insured by Allstate and 12 by Encompass. Additionally, Cherry Hill Pain, as the assignee of insured patients, had thirty-four complaints against various carriers pending in three other counties. On May 18, 2004, the judge entered an order consolidating all matters involving the same parties, for the purpose of discovery, regardless of the county of original venue, staying all PIP arbitration proceedings pending on behalf of Cherry Hill Pain, barring the further filing of any actions by Cherry Hill Pain, tolling its statute of limitations on such claims, and extending the time in which the named defendants were required to file responsive pleadings.
Rather than filing an answer, Allstate and Encompass moved to dismiss the complaint for failure to state a claim upon which relief could be granted under R. 4:6-2(e), arguing that Cherry Hill Pain lacked standing because it did not obtain written consent from the PIP carriers for an assignment of the PIP benefits from its insureds as required by the policies and permitted by the Commissioner of Insurance. See N.J.S.A. 39:6A-3.1a; N.J.A.C. 11:3-4.9(a); Coal. for Quality Health Care v. N.J. Dep't of Banking & Ins., 348 N.J. Super. 272, 316-17 (App. Div.), certif. denied, 174 N.J. 194 (2002); Parkway Ins. Co. v. N.J. Neck & Back, 330 N.J. Super. 172, 186-87 (Law Div. 1998). The Camden County Law Division judge granted the motion dismissing Cherry Hill Pain's complaint, noting that neither Cherry Hill Pain nor its owner, Dr. Lee, had a valid assignment of benefits because they had not obtained written consent from either carrier, as required by the Allstate and Encompass policies.*fn4
On March 5, 2005, plaintiffs filed the complaint alleging fraudulent billing in violation of the Insurance Fraud Prevention Act involving a total of 240 insureds,*fn5 seeking a declaration that defendants were not entitled to further payment, as well as disgorgement of monies previously paid.*fn6
Plaintiffs also filed an order to show cause (OTSC) for interim restraints, seeking to stay all pending court and arbitration proceedings between defendants and plaintiffs' insureds.
On May 27, 2005, the Burlington County Law Division judge denied plaintiffs' OTSC. On July 15, 2005, following oral argument, the judge granted defendants' motion to dismiss, stating:
I believe this is barred by the entire controversy doctrine because the facts and the legal theories are exactly the same.
The defense to the claim in the Camden County matter is exactly the same as the allegations in the Burlington County matter. Okay. That's number one.
Number two, the complaint in the Camden County matter was proven to be meritless because it was dismissed. But, there -- the issues were joined in that the plaintiff --both sides knew what the issues were in the case, and there was no prohibition for Allstate or Encompass to filing an answer before they filed -- they didn't give up their right to file . . . the motion for dismissal by filing an answer. Since there's no prohibition to filing an answer, an answer ...