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Klemons v. GEICO

Superior Court of New Jersey, Appellate Division

July 22, 2013

IRA KLEMONS, DDS, PHD, PC a/s/o SUZANNE MASCOLA, Plaintiff-Appellant/ Cross-Respondent,
v.
GEICO, Defendant-Respondent, and NATIONAL ARBITRATION FORUM, Defendant-Respondent/ Cross-Appellant. KIMBA MEDICAL SUPPLY a/s/o PEGGY ELLIS-PHELPS, Plaintiff-Respondent,
v.
GEICO and NATIONAL ARBITRATION FORUM, Defendants-Appellants. KIMBA MEDICAL SUPPLY a/s/o PEGGY ELLIS-PHELPS, Plaintiff-Appellant,
v.
GEICO and NATIONAL ARBITRATION FORUM, Defendants-Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 22, 2012

On appeal from Superior Court of New Jersey, Law Division, Monmouth County (A-4038-10T3), Docket No. L-6058-10 and Ocean County (A-6125-10T3 and A-1719-11T3), Docket No. L-1601-11.

Sean T. Hagan argued the cause for appellant/cross-respondent Ira Klemons, DDS, PHD, PC (A-4038-10T3); respondent Kimba Medical Supply (A-6125-10T3); and appellant Kimba Medical Supply (A-1719-11T3).

Stanley G. Wojculewski argued the cause for respondent Geico (A-4038-10T3 and A-1719-11T3); and respondent Geico has not filed a brief in A-6125-10T3 (Law Office of Anthony P. Castellani, attorneys; Mr. Wojculewski, on the briefs).

Arthur J. Timins argued the cause for appellant National Arbitration Forum (A-6125-10T3); as respondent/cross-appellant in (A-4038-10T3); and as respondent in (A-1719-11T3) (Shiriak & Timins, attorneys; Mr. Timins, on the briefs).

Before Judges Graves, Espinosa and Guadagno.

PER CURIAM.

These back-to-back appeals, which are consolidated for purposes of opinion, concern two separate arbitration awards issued by a Dispute Resolution Professional (DRP) pursuant to the Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30. In each case, a GEICO insured assigned her right to receive payment of Personal Injury Protection (PIP) benefits to her medical provider. The medical providers, Kimba Medical Supply (Kimba) and Ira Klemons, D.D.S., Ph.D., P.C. (Klemons) (collectively, plaintiffs), filed demands for arbitration with the National Arbitration Forum (NAF).[1] In each case, GEICO asserted that the policy issued to its insured had PIP benefits of $15, 000, which had been exhausted. Following the arbitration award, plaintiffs filed summary actions pursuant to N.J.S.A. 2A:23A-13 to vacate the award. In each case, the trial court denied the motion to vacate the arbitration award.

Plaintiffs appeal from these orders. In their appeals, both Klemons and Kimba argue that the trial court and the DRP erred as a matter of law in finding that a signed coverage selection form is not required for coverage to be maintained at the previously selected level; and that the trial court erred as a matter of law in its application of the standard of review under N.J.S.A. 2A:23A-13 and in dismissing the complaint. In addition, Kimba argues that we should review this matter because the constitutionality of a statute is at issue and that, if the DRP's interpretation of law is correct, N.J.A.C. 11:3-15.4 and 11:3-15.7 are ultra vires to the enabling statutes and unconstitutional. For the reasons that follow, we dismiss these appeals.

In addition, plaintiffs named NAF as a defendant in each of these cases, but did not allege any cause of action against NAF. NAF served notice to each plaintiff to dismiss it as a defendant pursuant to Rule 1:4-8, and sought fees and expenses from the court upon the dismissal of the complaints. NAF appeals from the trial courts' decisions to deny its request for sanctions against plaintiffs pursuant to N.J.S.A. 2A:15-59.1(a)(1) and Rule 1:4-8. For the reasons that follow, we reverse the trial courts' decisions and remand for further proceedings.

I.

N.J.S.A. 2A:23A-18(b) states:

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 ...

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