ANNAMARIE ALMOND, deceased by and through the Administrator of her Estate, Mandala Brown, Plaintiff,
ANGEL L. MARTINEZ, ESTATE OF ANGEL L. MARTINEZ, and R&J CAB SERVICE, INC., Defendants, and ALLSTATE NEW JERSEY INSURANCE COMPANY, Defendant/Third-Party Plaintiff-Respondent,
R&J CAB SERVICE, INC. and OCEAN RISK RETENTION GROUP, INC., Third-Party Defendants-Appellants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 6, 2013
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4354-07.
John M. Bashwiner argued the cause for appellants (Bashwiner and Deer, LLC, attorneys; Mr. Bashwiner, of counsel; Joseph A. Deer, on the brief).
David J. Dickinson argued the cause for respondent (McDermott & McGee, LLP, attorneys; Mr. Dickinson, on the brief).
Before Judges Grall, Simonelli and Koblitz.
This appeal is from a judgment confirming an arbitrator's award in favor of defendant/third-party plaintiff Allstate New Jersey Insurance Company and against third-party defendant Ocean Risk Retention Group, Inc. (ORRG). The judgment awards Allstate $258, 991, which includes pre-judgment interest, plus post-judgment interest. It awards Allstate's counsel $12, 211.50 for fees and costs, including those of the arbitrator, the Honorable John W. Bissell, (Ret.). This case was calendared with ORRG's appeal in American International Insurance Co. of Delaware v. 4M Interprise, Inc., ___ N.J.Super. ___ (App. Div. 2013), also decided today.
This third-party coverage dispute was raised in an action commenced by the Estate of Annamarie Almond, a pedestrian who died as a consequence of injuries caused by a taxi owned by defendant R&J Cab Service and insured by ORRG under a liability insurance policy on a motor vehicle. Allstate insured Almond under a policy of automobile liability insurance, which did not provide pedestrian personal injury protection (pedestrian-PIP) benefits for injuries caused by a taxi. Allstate, however, paid pedestrian-PIP benefits in excess of $200, 000 before learning that the vehicle causing the injury was a taxi. Consequently, Allstate sought reimbursement from ORRG. Pursuant to N.J.S.A. 17:28-1.3, ORRG's policy of liability insurance on a motor vehicle other than an automobile issued to the taxi's owner, was required to include pedestrian-PIP coverage for a person injured by an insured taxi. American Int'l Ins. Co. of Del., supra, slip op. at 4-5.
The Estate settled its claims, and Allstate and ORRG agreed to arbitrate in the National Arbitration Forum's (NAF) Code program. The parties' arbitration agreement is detailed. They agreed to modify "Code Rules by replacing the Rules with the NAF's No-Fault program rules." The agreement further provided: "The parties retain the right to file an appeal to the Superior Court for summary review as follows." The parties articulated their retained right to file an appeal to the Superior Court for summary review by reciting, without reference, N.J.S.A. 2A:23A-13, which is a provision of the New Jersey Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -19.
The only differences between the agreement and N.J.S.A. 2A:23A-13 are the letters labeling the subsections, the substitutions of arbitrator for umpire, the alteration of a single cross reference in N.J.S.A. 2A:23A-13(a) to No-Fault Rule 41 and a sentence in the final paragraph addressing confidentiality.
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 [No-Fault Rule 41;] unless the parties shall extend the time in writing. The award of the arbitrator 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 arbitrator 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 paragraph (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 ...