PEDRO J. SALINAS, Plaintiff-Appellant,
NEW JERSEY RE-INSURANCE COMPANY, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 28, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3674-10.
Mildred Vallerini Spiller argued the cause for appellant (Rinaldo and Rinaldo, attorneys; Matthew T. Rinaldo, on the brief).
Thomas A. Morrone argued the cause for respondent (Chasan Leyner & Lamparello, PC, attorneys; Mr. Morrone, of counsel; Samar Siyam, on the brief).
Before Judges Parrillo and Fasciale.
In this underinsured motorist coverage (UIM) declaratory judgment lawsuit, plaintiff appeals from a March 30, 2012 order denying his motion to compel UIM arbitration, and a June 26, 2012 judgment of no cause of action. The question is whether plaintiff waived his contractual right to proceed to UIM arbitration. We reverse, remand, and direct that the parties proceed to UIM arbitration.
In September 2005, plaintiff sustained injuries in an automobile accident. The tortfeasor maintained liability insurance in the amount of $35, 000, and plaintiff had $100, 000 in UIM insurance coverage with defendant. Plaintiff settled with the tortfeasor for $20, 000, issued a Longworth letter, and then demanded that defendant engage in UIM arbitration, which defendant ignored. In July 2010, plaintiff filed this complaint seeking to compel defendant to select a UIM arbitrator, proceed to UIM arbitration, and pay counsel fees. In October 2010, defendant filed its answer to the complaint.
Defendant's counsel acknowledged that he then forwarded to plaintiff's counsel his "form letter demanding discovery . . . tailored towards arbitration." The parties did not produce defendant's form arbitration-discovery letter on appeal. At trial, plaintiff's counsel summarized the contents of the letter by stating that defendant demanded
a list of all witnesses to be produced at . . . the [UIM] hearing, documentation [to establish] property damage, . . . medical records, . . . a statement under oath, which is the equivalent of a deposition. . . . And then [defendant] asked for a medical examination. And they ask[ed] for answers to interrogatories.
At trial, plaintiff's counsel referenced another defense discovery demand letter pertaining to the UIM insurance policy. The parties did not produce that letter on appeal.
Plaintiff's counsel maintains that the parties conducted discovery related to defendant's arbitration-related discovery demands. Plaintiff's counsel asserted that he complied with the demanded discovery because it was demanded for UIM arbitration. Plaintiff's counsel, therefore, responded to defendant's arbitration discovery demands, and when it became clear that defendant would not submit to UIM arbitration, he resorted to motion practice.
In January 2012, plaintiff filed a motion to compel defendant to proceed to UIM arbitration. Defendant opposed the motion contending that plaintiff waived his contractual right to proceed to UIM arbitration. In March 2012, a judge conducted oral argument and denied the motion without issuing a statement of reasons or conclusions of law. In April 2012, we denied ...