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Surgicare of Englewood Cliffs v. Proformance Insurance Co.


March 19, 2008


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-6381-06.

Per curiam.


Argued March 4, 2008

Before Judges Coburn, Fuentes and Chambers.

Plaintiff, Surgicare of Englewood Cliffs, instituted a Personal Injury Protection ("PIP") arbitration with the National Arbitration Forum in 2005, claiming that defendant, Proformance Insurance Company, was obligated to pay for a medical procedures performed at plaintiff's facility. In August 2006, the umpire ruled in favor of defendant, finding that the procedure was not medically necessary, and that defendant's failure to respond to a pre-certification request within seventy-two hours did not bar defendant from raising lack of medical necessity as a defense.

Plaintiff sought review of the umpire's decision in the Law Division, where both sides moved for summary judgment. On April 2, 2007, the judge issued a written opinion vacating the arbitration award and filed a judgment ordering payment by defendant. Defendant appeals.

This case is governed by The New Jersey Alternative Procedure for Dispute Resolution Act, N.J.S.A. 2A:23A-1 to -30 (the "APDRA"). Under the APDRA, the rule is that once a Law Division judge enters an order "confirming, modifying or correcting an award . . . [t]here shall be no further appeal or review . . . ." N.J.S.A. 2A:23A-18(b). In Mt. Hope Development Associates v. Mt. Hope Waterpowers Project, L.P., 154 N.J. 141, 147-152 (1998), the Court held that since arbitration under the APDRA was voluntary, the denial of a right to appeal violated neither the State Constitution nor the Court's power over practice and procedure. However, the Court also observed that there may be other limited circumstances where public policy would require appellate court review. For instance, because of this Court's supervisory function over the courts, we may determine that an award that is confirmed, modified, or vacated by a biased court should be subject to review beyond that which is provided for in N.J.S.A. 2A:23A-18. [Id. at 152 (emphasis added).]

In the instant case, the judge ruled for plaintiff on the ground that the time limitation, which appears in N.J.A.C. 11:3-4.7(c), may not be disregarded even if the insurance company issues a rejection before the medical procedure has taken place. Defendant contends that the judge's misconstrued the regulation and the relevant provisions of the Automobile Insurance Cost Reduction Act, N.J.S.A. 39:6A-1.1. Plaintiff responds that even if that is so, appellate review is unavailable. We agree with plaintiff.

APDRA authorizes the Law Division judge to vacate an award if the arbitrator has committed "prejudicial error by erroneously applying law to the issues and facts presented for alternative resolution." N.J.S.A. 2A:23A-13(c)(5). When the judge so concludes he or she must after vacating or modifying the erroneous determination of the umpire, appropriately set forth the applicable law and arrive at an appropriate determination under the applicable facts determined by the umpire. [N.J.S.A. 2A:23A-13(f).]

The judge followed the procedures of the APDRA in all respects.

As already noted, ordinary legal error provides no basis for appellate review under the APDRA unless some identifiable public policy so requires. Defendant's claim is nothing more than an assertion that the judge made a serious error of law. For purposes of this opinion, we will assume that is so. But defendant has failed to identify any overarching public policy that would justify our review of the error. Therefore, defendant had no right to appeal.

Appeal dismissed.


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