On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-4218-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 21, 2010
Before Judges Wefing and Payne.
On December 2, 2004, defendant/third-party plaintiff, Robert Dent, an employee of Onyx Waste Services, was injured when he slipped on oil and fell while making a delivery at the premises of another company. He filed a petition in the Workers' Compensation Division on January 24, 2005 seeking temporary disability and medical benefits and alleging "lumbar strain and sprain, right pleural effusion-infection." By letter dated April 21, 2005, Dent's employer declined payment of any benefits for "hospitalizations of December 13, 2004 forward"*fn1 and suspended temporary disability benefits. The workers' compensation matter remains unresolved.
Following his employer's denial of workers' compensation benefits, Dent submitted a claim for medical benefits to the self-funded welfare fund maintained by his union, Teamsters Local 945 (the Fund). Additionally, Dent filed a third-party action for damages arising from his fall, eventually receiving a recovery in settlement of $10,000,000. The terms of that settlement have been sealed.
The Fund initially paid benefits in the amount of $85,933.71. However, upon Dent's refusal to agree to reimburse the Fund from any recovery he obtained in his personal injury or workers' compensation cases, the Fund declined to provide further benefits.*fn2 A considerable sum remains unpaid.
On September 19, 2008, plaintiff, Mid-Atlantic Surgical Associates, filed suit against Robert and Barbara Dent in the Special Civil Part seeking payment of outstanding bills in the amount of $15,149.41. In a third-party action against the Fund and the Fund's claims administrator, Horizon Blue Cross Blue Shield of New Jersey, the Dents sought payment of Mid-Atlantic's and other provider's allegedly outstanding medical bills. Thereafter, the matter was transferred to the Law Division, and subsequent to that, Barbara Dent and Horizon Blue Cross Blue Shield of New Jersey were dismissed from the action. Both remaining parties sought summary judgment, which was denied. However, upon the renewal of those motions, the motion filed on behalf of the Fund was granted on August 28, 2009, and on September 25, 2009, Mid-Atlantic's claim was transferred to the Division of Workers' Compensation for resolution pursuant to N.J.S.A. 34:15-15. In granting summary judgment, the court rejected Dent's argument that the Fund should be required to provide interim benefits, subject to potential reimbursement by the workers' compensation carrier, while a determination on his workers' compensation claim remained pending.
On appeal, Dent renews his argument that the Fund is liable for interim benefits while his workers' compensation action remains unresolved. The Fund disputes his claim, arguing that its plan unambiguously excludes benefits for [s]ervices for any sickness, disease or injury arising out of or in the course of employment and for which benefits and/or compensation are wholly or partially available under any Workers' Compensation Law, Occupational Disease Law or similar legislation whether or not the person asserts his or her rights under such legislation and whether or not there are recoveries against third parties for damages.
See LaPollo v. Hosp. Serv. Plan of N.J., 113 N.J. 611, 616 (1989) (finding "little ambiguity" in substantially similar policy language).
Dent responds to the Fund's position by claiming that the motion judge failed to consider that the exclusion was inapplicable because workers' compensation benefits were not "available" to Dent, having been denied by his employer and its workers' compensation carrier. Dent does not address the fact that his workers' compensation matter remains unresolved after six years - in large measure because his actions have impeded its resolution. Alternatively, Dent argues, the term "available" should be deemed ambiguous, and it should be construed against the Fund. In this regard, Dent seeks to distinguish LaPollo because, in the context of a common-law claim by a minor against his employer for injuries sustained in a work-related accident, an action by minors authorized by N.J.S.A. 34:15-10 as an alternative to a workers' compensation proceeding, the Court held that "the fact that an exclusionary clause in an insurance policy is unambiguous does not make it necessarily enforceable." Id. at 616. However, that language was dictum, since the Court concluded that the exclusionary clause should be given effect. Id. at 617. Moreover, we find that the public policy concerns arising in the context of recovery of benefits by a child who has chosen not to pursue his workers' compensation remedies are inapplicable to the present matter.
Dent then presents his principal argument that he is entitled to interim benefits from the Fund, regardless of the plan's language, as the result of precedent established in connection with automobile insurance personal injury protection (PIP) benefits, that commenced with Solimano v. Consolidated Mutual Insurance Company, 146 N.J. Super. 393 (Law Div. 1977). In that case, following the plaintiff's injury in an automobile accident, Consolidated Mutual initially provided PIP benefits, but then discontinued them, claiming that the statutory collateral source offset available to an insurer pursuant to N.J.S.A. 39:6A-6 for benefits "collectible under workers' compensation insurance" obviated the need for it to pay PIP benefits. Id. at 395. Plaintiff thereupon filed suit against Consolidated Mutual to compel such payment.
The trial judge granted the relief sought by plaintiff. In doing so, the judge rejected Consolidated Mutual's position that plaintiff was required first to dispose of the possibility of collecting workers' compensation benefits. Id. at 396-97. He held that, until a right to a deduction for workers' compensation benefits was established, Consolidated Mutual remained the primary source of recovery for plaintiff. Id. at 397. He reasoned in language specific to the No Fault context in which the claim arose:
Clearly, an adoption of the PIP carrier's position would fly in the face of the policy behind the No-Fault Act. From its inception, the public policy surrounding the legislation has been "to provide appreciable reparation for all New Jersey accident victims promptly, fairly, and efficiently." See State of New Jersey Automobile Insurance Study Commission Report to the Governor and Legislature, Reparation Reform for New Jersey Motorists, xii (1971). This policy was implemented by the Legislature ...