On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Passaic County, L-377-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically June 13, 2012 -
Before Judges Rodriguez and Reisner.
Intervenor Forthright appeals from a May 9, 2011 trial court order remanding an arbitration award to the arbitration forum for further proceedings, and an August 10, 2011 order denying Forthright's application to vacate the May 9 order.*fn1 We affirm.
This is what happened. Kevin Freeman was injured in an auto accident. He assigned his PIP claim to his treatment providers, Dr. Amrish Patel, Saddle Brook Surgicenter, and Ambulatory Anesthesia Group (collectively, plaintiffs), which sought arbitration when they could not resolve their claims with the insurer, Liberty Mutual Insurance Company. The dispute resolution professional (arbitrator) rendered a decision adverse to plaintiffs, without considering a document packet, dated March 3, 2009 that plaintiffs' attorney had submitted. Even though plaintiffs' counsel offered to submit hard copies at the arbitration hearing, the arbitrator would not consider them because he believed they had not been electronically filed according to the rules of the National Arbitration Forum (NAF). While acknowledging that the missing documents could be "crucial" to the decision of the case, the arbitrator refused to consider them and instead rendered a decision that plaintiffs had failed to prove that the accident caused the injuries for which Freeman had received medical treatment.
On plaintiffs' application to the Law Division to vacate the award, both sides agreed that the documents had in fact been uploaded to the NAF system; the arbitrator simply could not locate them in the system. Both sides agreed that the arbitrator had decided the case adversely to plaintiff on an incomplete record, and both sides agreed that the proper remedy was for the Law Division judge to remand the case to the arbitrator for reconsideration, including consideration of the March 3 document package. Not surprisingly, the judge granted that application, pursuant to N.J.S.A. 2A:23A-13c and -14.
Thereafter, Forthright filed a motion to intervene and set aside the May 9 order, arguing that the Law Division could not remand the matter to the arbitrator. The argument before Judge Ralph DeLuccia focused on N.J.S.A. 2A:23A-13 and -14. Section 13 permits an application to vacate, modify or correct an arbitration award and sets forth the grounds on which such an application may be granted. It provides in pertinent part:
a. A party to an alternative resolution proceeding shall commence a summary application in the Superior Court for its vacation, modification or correction within 45 days after the award is delivered to the applicant, or within 30 days after receipt of an award modified pursuant to subsection
d. of section 12 of this act, unless the parties shall extend the time in writing. The award of the umpire shall become final unless the action is commenced as required by this subsection.
b. In considering an application for vacation, modification or correction, a decision of the umpire on the facts shall be final if there is substantial evidence to support that decision; provided, however, that when the application to the court is to vacate the award pursuant to paragraphs (1),
(2), (3), or (4) of subsection c., the court shall make an independent determination of any facts relevant thereto de novo, upon such record as may exist or as it may determine in a summary expedited proceeding as provided for by rules adopted by the Supreme Court for the purpose of acting on such applications.
c. The award shall be vacated on the application of a party who either participated in the alternative resolution proceeding or was served with a notice of intention to have alternative resolution if the court ...