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First Trenton Indemnity Co. v. D'Agostini

July 20, 2009

FIRST TRENTON INDEMNITY COMPANY, PLAINTIFF-APPELLANT,
v.
JOSEPH D. D'AGOSTINI, D.C., P.C. AND JOSEPH D. D'AGOSTINI, D.C., LORENA VELASCO, A/K/A LORENA D'AGOSTINI, A/K/A MARTHA PARRA, FERNANDO VELASCO, AND ALLIED HEALTH CENTER, INC., DEFENDANTS-RESPONDENTS.



On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-775-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 27, 2009

Before Judges Wefing, Yannotti and LeWinn.

Plaintiff First Trenton Indemnity Company appeals, by leave granted, from an order entered by the trial court on November 12, 2008, compelling it to provide discovery, and an order entered on January 16, 2009, denying its motion for reconsideration. For the reasons that follow, we reverse.

On March 20, 2007, plaintiff filed an action alleging, among other things, that defendants Joseph D. D'Agostini, D.C., P.C. ("D'Agostini") and Allied Health Center, Inc. ("Allied") submitted bills for reimbursement under automobile insurance policies issued by plaintiff for services that had not been performed; were performed by unlicensed individuals; were rendered in a manner that did not conform to requirements of the New Jersey Board of Chiropractic Examiners; or were provided under conditions making them ineligible for payment.

Plaintiff alleged that, by submitting the aforementioned claims, D'Agostini, Allied and the other defendants violated the New Jersey Insurance Fraud Prevention Act, N.J.S.A. 17:33A-1 to -30 (the "IFPA"). Plaintiff sought disgorgement of all monies previously paid to defendants; treble damages; attorneys fees; costs of suit and costs of investigation.

Defendants filed an answer denying plaintiff's allegations and a counterclaim in which they asserted claims against plaintiff for fraud; violations of the New Jersey Racketeer Influenced and Corrupt Organization Act, N.J.S.A. 2C:41-1 to -6.2 ("RICO"); violations of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 ("CFA"); violations of the IFPA; malicious prosecution; malicious use of process; malicious interference with economic advantage; and breach of the covenant of good faith and fair dealing.

In their counterclaim, defendants allege, among other things, that plaintiff owes them $75,000 and that their claims are subject to arbitration. Defendants assert that plaintiff is attempting to circumvent the arbitration process by wrongfully withholding payments and improperly initiating an investigation and litigation pursuant to the IFPA. Defendants further assert that plaintiff has committed fraud by refusing to pay their claims.

On June 12, 2007, defendants served upon plaintiff their first set of written interrogatories. On July 12, 2007, plaintiff filed a motion to dismiss defendants' counterclaim for failure to state a claim upon which relief may be granted.

The trial court considered plaintiff's motion on September 21, 2007, and on that date placed its decision on the record. The court entered an order dated October 4, 2007, which granted plaintiff's motion to dismiss defendants' claims under the IFPA, as well as their claims for malicious prosecution and malicious use of process, but denied plaintiff's motion to dismiss defendants' other claims.*fn1

Thereafter, plaintiff objected to defendants' discovery request on various grounds, including the attorney-client privilege, the work-product privilege and relevancy. Plaintiff also asserted that it would be unduly burdensome to reply to the requests and the cost of doing so would be extraordinary. Defendants filed a motion to compel plaintiff to respond to their discovery request.

On November 12, 2008, the court entered an order granting defendants' motion. The court ordered plaintiff to respond to defendants' interrogatories one, three, four, eleven and twelve. The court also required plaintiff to provide documents in response to defendants' notice to produce. The court provided no reasons for its order.

On December 2, 2008, plaintiff filed a motion for reconsideration of the November 12, 2008 order to the extent that it required plaintiff to respond to interrogatories eleven and ...


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