July 18, 2013
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 finds that the rights of that party were prejudiced by:
(1) Corruption, fraud or misconduct in procuring the award;
(2) Partiality of an arbitrator appointed as a neutral;
(3)In making the award, the arbitrator's exceeding their power or so imperfectly executing that power that a final and definite award was not made;
(4) Failure to follow the procedures set forth in this act, unless the party applying to vacate the award continued with the proceeding with notice of the defect and without objection; or
(5)The arbitrator's committing prejudicial error by erroneously applying law to the issues and facts presented for alternative resolution.
d. The award shall be vacated on the application of a party who neither participated in the proceeding nor was served with a notice of intention to have alternative resolution if the court finds that:
(1) The rights of that party were prejudiced by one of the grounds specified in subsection c. of this section; or
(2) A valid agreement to have alternative resolution was not made; or
(3) The agreement to have alternative resolution had not been complied with; or
(4) The claim was barred by any provision of this act.
e. The court shall modify the award if:
(1) There was a miscalculation of figures or a mistake in the description of any person, thing or property referred to in the award;
(2) The arbitrator has made an award based on a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted;
(3) The award is imperfect in a matter of form, not affecting the merits of the controversy; or
(4)The rights of the party applying for the modification were prejudiced by the arbitrator erroneously applying law to the issues and facts presented for alternative resolution.
f. Whenever it appears to the court to which application is made, pursuant to this section, either to vacate or modify the award because the arbitrator committed prejudicial error in applying applicable law to the issues and facts presented for alternative resolution, the court shall, after vacating or modifying the erroneous determination of the arbitrator, appropriately set forth the applicable law and arrive at an appropriate determination under the applicable facts determined by the arbitrator. The court shall then confirm the award as modified. [However the court's determination shall not be published and will be kept in complete confidence between the parties.]
[N.J.S.A. 2A:23A-13 (emphasis added to indicate all alterations made in the parties' agreement other than in the lettering of the subsections).]
This portion of the parties' agreement defining the right to an appeal to the Superior Court that they retained does not mention a right of further review in the Appellate Division of the Superior Court. Moreover, the right of judicial review by this court is not retained elsewhere in the agreement incorporating the APDRA's right of judicial review, which precludes review by this court. N.J.S.A. 2A:23A-18(b).
Pursuant to N.J.S.A. 2A:23A-18(b): "Upon the granting of an order confirming, modifying or correcting an award, a judgment or decree shall be entered by the court in conformity therewith and be enforced as any other judgment or decree. There shall be no further appeal or review of the judgment or decree." This court has held that "when Alternative Dispute Resolution is applied to PIP disputes, it must be conducted pursuant to the APDRA." Riverside Chiropractic Grp. v. Mercury Ins. Co., 404 N.J.Super. 228, 235 (App. Div. 2008); accord Coalition for Quality Health Care v. N.J. Dept. of Banking & Ins., 348 N.J.Super. 272, 312 (App. Div.), certif. denied, 174 N.J. 194 (2002).
Although parties generally have the right to appeal from a final order or judgment of the Law and Chancery Divisions of the Superior Court, the APDRA's proscription against appellate review has been held valid because "[t]he general rule . . . is that a party may, by express agreement or stipulation before trial or judgment, waive his right to appeal . . . ."
[Riverside Chiropractic Grp., supra, 404 N.J.Super. at 235 (quoting Mt. Hope Dev. Assocs. v. Mt. Hope Waterpower Project, 154 N.J. 141, 147 (1998))].
In the event of a violation of such an agreement or stipulation, dismissal of the appeal is an appropriate remedy. Id. at 235-36; cf. Kimba Med. Supply v. Allstate Ins. Co. of N.J., ___ N.J.Super. ___, ___ (App. Div. 2013) (slip op. at 27-30) (invoking the limited public policy exception for appellate court review of PIP claims conducted pursuant to the APDRA).
Pursuant to N.J.S.A. 2A:23A-2, for the provisions of the APDRA to be applicable, it "shall be sufficient that the parties signify their intention to resolve their dispute by reference in the agreement to 'The New Jersey Alternative Procedure for Dispute Resolution Act.'" Here, the parties did not expressly refer to the APDRA, but they signified their intention to waive a right to appellate court review in conformity with the APDRA by defining the right to appeal they retained with a recitation of a provision of the APDRA providing a right to appeal to the trial court only.
Read in the context of this detailed agreement, there is no ambiguity in this waiver. It defines the right of appeal retained and does not refer to any appeal other than the review by the trial court provided in the APDRA. Accordingly, dismissal of this appeal without further discussion would be appropriate.
Nevertheless, we briefly address the merits. ORRG presents the following issues on this appeal:
I. THE DECISION OF THE ARBITRATOR SHOULD BE VACATED AND REVERSED BECAUSE ORRG WAS CHARTERED UNDER THE FEDERAL LIABILITY RISK RETENTION ACT OF 1986, 15 U.S.C.[S. §§] 3901-3906, ORRG IS EXEMPT FROM STATE LAWS, RULES, REGULATIONS OR ORDERS AND, THEREFORE, IS EXEMPT FROM THE REQUIREMENTS OF N.J.S.A. 17:28-1.3.
II. THE DECISION OF THE ARBITRATOR SHOULD BE VACATED AS ORRG WAS NOT PERMITTED A FULL AND FAIR OPPORTUNITY TO PRESENT ITS CASE.
III.THE ARBITRATOR MADE REVERSIBLE ERRORS ON THE ISSUES OF LIABILITY AND DAMAGES THAT REQUIRE THE ARBITRATION AWARD TO BE VACATED.
The arguments presented in Point I are addressed in American International Insurance Co. of Delaware, supra, slip op. at 7-19. Substantially for the reasons stated there, we reject the arguments ORRG offers in support of Point I.
After considering the arguments presented in Points II and III in light of the record, we have concluded that they have insufficient merit to warrant any discussion beyond that provided by Judge Fernandez-Vina. See R. 2:11-3(e)(1)(E).