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Liberty Mutual Insurance Co v. Garden State Surgical Center

June 3, 2010

LIBERTY MUTUAL INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
GARDEN STATE SURGICAL CENTER, L.L.C., SOMERSET SURGICAL CENTER, P.A., FAIRLAWN ANESTHESIA ASSOCIATES, L.L.C., GARDEN STATE ORTHOPAEDIC ASSOCIATES, P.A., KENNETH LEVITSKY, M.D., JAMES PAROLIE, M.D., JAMES DWYER, M.D., PAUL VESSA, M.D., ALBERT JOHNSON, M.D., KEVIN MCCRACKEN, M.D., WARREN BLEIWEISS, M.D., SHARON WOROSILO, M.D., JEFFREY MILLER, M.D., HONG SHI, M.D., DANTE IMPLICITO, M.D., JAMES TOVEY, M.D., MINGI CHOI, M.D., MATTHEW FRANCE, M.D., RICHARD SCHENK, M.D. AND SCOTT MCGINLEY, M.D., DEFENDANTS-RESPONDENTS, AND ROBERT SCHULTZ, M.D., DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-0546-07.

The opinion of the court was delivered by: Fisher, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 5, 2010

Before Judges Axelrad, Fisher and Espinosa.

In this appeal, we consider, among other things, whether or to what extent we may review orders entered in this action, which sought relief regarding arbitrations that were either pending or previously decided by an arbitrator pursuant to the Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30. We conclude that N.J.S.A. 2A:23A-18(b), which mandates "no further appeal or review" in APDRA matters, does not bar our review of the judge's denial of leave to file an amended complaint or of the judge's dismissal of the action on timeliness grounds. In addition, we deem it appropriate to exercise our supervisory jurisdiction because it is not clear whether the judge's confirmation of the arbitration awards fell within the scope of the authority provided him by APDRA.

I.

The record on appeal reveals that Liberty Mutual Insurance Company filed in the Law Division a complaint against the defendants -- providers of medical services to individuals injured in automobile accidents and eligible for personal injury protection benefits -- seeking a declaratory judgment regarding issues then pending before or already decided by arbitrators in the underlying proceedings. The complaint asserted, among other things, that some defendants were not properly licensed and that the claims asserted involved illegal self-referrals prohibited by the Codey Law, N.J.S.A. 45:9-22.5(a).

A certification appended to the complaint contained two lists of arbitrations -- those then pending and those decided by the arbitrator on May 31, 2006 -- as to which Liberty Mutual sought relief. The record further reveals that Liberty Mutual timely sought in the National Arbitration Forum (NAF) modification or clarification of the awards issued on May 31, 2006. The NAF denied that application on December 21, 2006. The complaint in this action was filed on January 22, 2007.

Liberty Mutual initially sought a stay of the undecided arbitrations, which the trial judge denied. On February 13, 2007, additional awards were entered in arbitrations pending at the time the complaint was filed; Liberty Mutual filed an amended complaint to bring those awards within the ambit of its Law Division action. On March 19, 2007, additional awards issued, which prompted Liberty Mutual to file a second amended complaint as to those matters.

In July 2008, Liberty Mutual moved for leave to file a third amended complaint to "clarify the claims in this suit" by "includ[ing] an 'appeal' count by which [it might] further seek[] to appeal the related arbitration awards to the [c]court." Defendants opposed Liberty Mutual's motion and cross-moved for dismissal pursuant to Rule 4:6-2(e). The judge denied Liberty Mutual's motion and granted defendants' motions, resulting in an order dismissing the complaint.

Following Liberty Mutual's unsuccessful motion for reconsideration, defendants moved for confirmation of the arbitration awards and the entry of judgment; the judge confirmed the awards but refused to enter judgment. By way of a subsequent motion, the judge entered judgment, and later entered another order that "finalized" his earlier interlocutory orders. Liberty Mutual thereafter filed this appeal.

II.

Whether we have jurisdiction to hear this appeal turns on the meaning of N.J.S.A. ...


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