July 10, 2009
LURETHA M. STRIBLING, PLAINTIFF-APPELLANT,
NEW JERSEY MANUFACTURER'S INSURANCE COMPANY, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-78-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 5, 2009
Before Judges Parker, Yannotti and LeWinn.
Plaintiff Luretha M. Stribling, appearing pro se, appeals from an order entered on August 1, 2008 dismissing her complaint for Personal Injury Protection (PIP) coverage in favor of arbitration after we had remanded a prior dismissal for further proceedings in the Law Division.
Plaintiff was injured in an automobile accident on December 28, 2002. Defendant New Jersey Manufacturers Insurance Company (NJM), her auto insurance carrier, paid PIP benefits for her injuries. The last payment was made on January 19, 2004.
In May 2005, plaintiff sought to reopen her PIP claim because she required additional treatment for injuries sustained in the accident. That claim was denied on May 17, 2005 and plaintiff subsequently submitted it for arbitration on March 28, 2006. The arbitration occurred on August 1, 2006 and the dispute resolution professional (DRP) determined that he lacked jurisdiction to decide the issues of reimbursement for additional medical expenses or the request for payment for prospective surgeries because plaintiff had failed to seek pre-certification for the medical treatment.
On December 20, 2006, plaintiff filed a complaint and order to show cause seeking additional PIP benefits from NJM. The parties cross-moved for summary judgment. The trial court heard argument and on July 8, 2007 denied plaintiff's motion and granted defendant's.
Plaintiff appealed and we rendered a decision on June 26, 2008 reversing the grant of summary judgment and remanding the matter for further proceedings because the DRP's decision was not a binding determination and plaintiff's Law Division action was timely filed.
After the remand, NJM again moved to dismiss the matter and have it submitted to arbitration. The court granted that motion and plaintiff again appeals and argues that (1) "the trial court had a peremptory duty to obey the mandate of the appellate court" and decide the issues; (2) N.J.S.A. 39:6A-5.1 does not require the matter to be arbitrated again after the remand; and (3) NJM should be compelled to pay all medical bills causally related to the December 28, 2002 accident.
Plaintiff first argues that the trial court was mandated to proceed with the action as a result of our remand. We are constrained to disagree. Our earlier decision did not preclude NJM from seeking dismissal of the matter and having the matter resolved in arbitration with plaintiff submitting the necessary proofs for the DRP to decide the issues.
N.J.S.A. 39:6A-5.1(a) provides that any dispute regarding PIP benefits may be submitted to dispute resolution by either party. NJM was entitled to exercise its right under the statute to proceed to arbitration, even after the remand. Arbitration is the more expeditious, cost-effective means of resolving PIP disputes. Gambino v. Royal Globe Ins. Co., 86 N.J. 100, 105-06 (1981).
At oral argument, plaintiff represented to us that, although the DRP said she could not arbitrate the issues because there were insufficient proofs, all of the documents she had submitted for the arbitration were not scanned into the system and the DRP did not have them available when the parties appeared for the arbitration. We do not have any record to support that representation. Nevertheless, plaintiff should be permitted to re-submit her claim for arbitration and to be certain that all of the necessary proofs are presented to the DRP.
Finally, we are unable to compel NJM to pay plaintiff's medical bills, future medical expenses or reasonable attorneys fees because we do not have a sufficient record before us establishing a causal connection between the future treatment and the accident. Although plaintiff has submitted doctors' reports to us, they are contested by NJM and we cannot make a determination based upon a contested record. See, e.g., Bowe v. N. J. Mfrs. Ins. Co., 367 N.J. Super. 128 (App. Div. 2004).
For these reasons, we affirm the trial court's dismissal of the complaint. Plaintiff may re-submit her claim for arbitration. Any issues respecting timeliness of the re- submission should be resolved in plaintiff's favor because this matter has been pending since the initial arbitration on August 1, 2006. See generally N.J.S.A. 39:6A-13.1(a); Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318 (2000) (discussing timely filing for payment of PIP benefits); see also N.J.S.A. 39:6A-5.1(a) (discussing a party's option to seek dispute resolution); Galligan v. Westfield Ctr. Serv., Inc., 82 N.J. 188 (1980); Mitzner v. W. Ridgelawn Cemetery, Inc., 311 N.J. Super. 233 (App. Div. 1998) (discussing tolling principles).
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