Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Tagayun v. Americhoice of New Jersey, Inc.

Superior Court of New Jersey, Appellate Division

August 30, 2013

MYRNA B. TAGAYUN, M.D., Plaintiff-Appellant,


Argued August 27, 2013

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5348-12.

Myrna B. Tagayun, appellant, argued the cause pro se.

Francis X. Manning argued the cause for respondents (Stradley, Ronon, Stevens & Young, LLP, attorneys; L. John Vassalotti, III, on the brief).

Before Judges Harris and Fasciale.


Myrna B. Tagayun, M.D., appeals from a January 11, 2013 order compelling her to arbitration.[1] We affirm.

AmeriChoice is a Health Maintenance Organization (HMO) that maintains a network of physicians and other medical professionals who provide medical services to AmeriChoice's members.[2] In April 2003, Tagayun signed a Participating Provider Agreement (PPA). The PPA renews each year unless one party notifies the other in writing of its intent not to renew at least ninety days prior to the renewal date.

On May 1, 2012, Nielsen sent a letter to Tagayun informing her that AmeriChoice could not locate its copy of the PPA, and that Tagayun was required to execute a new one and return it to AmeriChoice by June 1, 2012, if she wanted to continue operating as a Participating Provider. By letter dated May 22, 2012, Mandell enclosed a copy of the purported original PPA and represented that Tagayun would not sign a new agreement.[3]

By letter dated June 6, 2012, Nielsen informed Tagayun that because AmeriChoice had not received an executed copy of the new agreement, it would not be renewing Tagayun as a Participating Provider effective September 4, 2012. By letter dated June 11, 2012, Tagayun demanded rescission of the notice of intent to terminate the PPA. On July 18, 2012, plaintiffs filed their complaint, alleging that defendants had sent Tagayun an improper notice of termination. In the same month, plaintiffs filed an order to show cause (OTSC) seeking a preliminary injunction to prevent AmeriChoice from terminating the PPA.

By letter dated August 1, 2012, Nielson informed Tagayun that AmeriChoice had rescinded the notice of intent to terminate the PPA. On August 10, 2012, the judge conducted a hearing on plaintiffs' OTSC. The judge stated that he would provide a five-day order vacating plaintiffs' OTSC "as defendant has rescinded its notice of intent to terminate" Tagayun. Shortly thereafter, plaintiffs objected to the order. On August 20, 2012, the judge conducted a telephonic conference regarding plaintiffs' objection. By order dated August 20, 2012, the judge denied plaintiffs' OTSC without prejudice and ordered defendants to file a response to the original complaint by September 10, 2012.

On or about September 7, 2012, AmeriChoice moved to stay and compel arbitration as to Tagayun's claims and dismiss Mandell's claims. By letter dated January 7, 2013, Nielsen informed Tagayun that AmeriChoice was exercising its right not to renew her PPA effective on her anniversary date of May 7, 2013.

On January 11, 2013, after briefing was complete, Judge Michelle Hollar-Gregory conducted oral argument and granted AmeriChoice's motion in full. The judge stated that she was going to "stay the matter and compel it to arbitration, based upon the fact that there is a contract that provides for an arbitration provision."[4] On the same date, the judge issued an order reflecting her ruling.

On January 14, 2013, plaintiffs filed an amended complaint.[5]On January 15, 2013, plaintiffs filed this appeal of the January 11 order. By letter dated February 6, 2013, we noted that the filing of the amended complaint and the existence of the two pending motions "ha[d] caused us to question whether the determination being appealed is final." By letter dated February 19, 2013, plaintiffs acknowledged that certain issues remained outstanding in the Law Division, despite arguing that they were "irrelevant" with respect to the present appeal.

On March 6, 2013, AmeriChoice moved for limited remand to the Law Division. On March 18, 2013, plaintiffs filed an opposition and a cross-motion for injunctive relief, requesting that this court stay the nonrenewal of the PPA scheduled to take effect May 7, 2013. By order dated April 17, 2013, we dismissed the appeal as to Mandell, finding his appeal interlocutory; concluded that Tagayun had properly taken an appeal as of right from the January 11 order; and dismissed AmeriChoice's motion for limited remand as unnecessary. In a separate order also dated April 17, we denied plaintiffs' cross-motion for injunctive relief.

On May 6, 2013, plaintiffs filed an application for emergent relief to prevent the nonrenewal of the PPA from taking effect the next day. On May 7, 2013, we granted plaintiffs' application, and on the same day, plaintiffs filed their emergent motion, seeking injunctive relief related to the nonrenewal, as well as reinstatement of Mandell's appeal. On May 10, 2013, we denied plaintiffs' emergent motion but entered an interim stay of the nonrenewal solely to allow Tagayun to seek review by the New Jersey Supreme Court. The order specified that the interim stay would remain in place unless and until the Court directed otherwise.

On May 13, 2013, plaintiffs sought the Court's review. By order dated May 21, 2013, the Court denied plaintiffs' emergent motion in full. On June 10, 2013, we issued an order, among other things, vacating the briefing schedule contained in the May 10, 2013 order and indicating that Tagayun must submit a corrected merits brief.

On appeal, Tagayun argues that (1) the court retains the authority to determine whether the contract's arbitration clause is enforceable, and (2) the clause's enforceability depends on whether the contract excludes all types of lawsuits.

"Orders compelling arbitration are deemed final for purposes of appeal." Hirsch v. Amper Fin. Servs., __ N.J. __, __ (2013) (slip op. at 15) (citing R. 2:2-3(a)). We review such orders de novo. Ibid. In reviewing these determinations, we remain "mindful of the strong preference to enforce arbitration agreements, both at the state and federal level." Ibid.; see, e.g., Hojnowski v. Vans Skate Park, 187 N.J. 323, 341-42 (2006).

Tagayun contends that the trial judge erred in compelling arbitration because arbitration clauses do not cover disputes prior to termination. We disagree.

The New Jersey Arbitration Act (NJAA), N.J.S.A. 2A:23B-1 to -32, provides, in part: "[a]n agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract." N.J.S.A. 2A:23B-6(a). See Martindale v. Sandvik, Inc., 173 N.J. 76, 84-85 (2002) (noting that the New Jersey Legislature codified its endorsement of arbitration agreements in the NJAA and discussing the strong preference for arbitration both at the state and federal level). Our preference for arbitration, however, "'is not without limits.'" Hirsch, supra, __ N.J. At __ (slip op. at 14) (quoting Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124, 132 (2001) (recognizing "arbitration as a favored method of resolving disputes")).

First, a court must "apply state contract-law principles . . . [to determine] whether a valid agreement to arbitrate exists." Ibid. (internal quotation marks omitted); see N.J.S.A. 2A:23B-6(b) ("The court shall decide whether an agreement to arbitrate exists . . . ."). Once a court has found "the existence of an arbitration clause, [it] then must evaluate whether the particular claims at issue fall within the clause's scope." Hirsch, supra, slip op. at 16. In establishing the clause's boundaries, the court must look to its language. Ibid. Ultimately, "[a]n agreement relating to arbitration should . . . be read liberally to find arbitrability if reasonably possible." NAACP of Camden Cnty. E. v. Foulke Mgmt. Corp., 421 N.J.Super. 404, 424 (App. Div. 2011) (internal quotation marks omitted), appeal dismissed, 213 N.J. 47 (2013).

Here, the "Dispute Resolution" portion of the PPA provides, in pertinent part:

All disputes arising between the parties shall, in the first instance, be resolved in accordance with procedures set forth and/or references herein or in the Provider Manual, or through negotiation between the parties. If the dispute involves a regulation or policy of a federal or state agency, the parties shall request an interpretive ruling from the appropriate agency. Disputes not otherwise resolved shall be submitted to arbitration. The arbitration proceeding shall take place in New Jersey, in accordance with the rules then prevailing of the American Health Lawyers Association Alternative Dispute Resolution Service.

[(Emphasis added).]

It is undisputed that the parties executed the PPA, which contains the aforementioned valid arbitration clause. See N.J.S.A. 2A:23B-6(b). In evaluating the clause's language, the clause's broad scope, specifying "[a]ll disputes arising between the parties, " encompasses Tagayun's claims. See Hirsch, supra, __ N.J. At __ (slip op. at 16). Therefore, the judge did not err in compelling arbitration where the arbitration at issue is "reasonably possible." NAACP of Camden Cnty. E., supra, 421 N.J.Super. at 424.

Tagayun further argues that the PPA is an adhesive contract, and that it "does not explicitly exclude or prohibit access to the courts." We disagree.

In Martindale, supra, 173 N.J. at 81-82, the plaintiff signed an arbitration agreement as part of her employment application, which provided, in pertinent part: "ALL DISPUTES RELATING TO MY EMPLOYMENT WITH SANDVIK OR TERMINATION THEREOF SHALL BE DECIDED BY AN ARBITRATOR THROUGH THE LABOR RELATIONS SECTION OF THE AMERICAN ARBITRATION ASSOCIATION." (Emphasis added). The plaintiff alleged Law Against Discrimination (LAD), N.J.S.A. 10:51-1 to -42, violations. Id. at 82. In distinguishing the arbitration clause in Garfinkel, supra, the Court stated:

Unlike the arbitration provisions contained in Garfinkel and Alamo [Rent A Car, Inc. v. Galarza, 306 N.J.Super. 384, 389 (App. Div. 1997)], the arbitration provision here does not contain any limiting references. Its wording provided plaintiff with sufficient notice at the time she signed the agreement that all claims relating to employment with and termination from Sandvik would be resolved through arbitration.

[Id. at 96.]

Thereafter, the Court held that compelling arbitration was proper. Ibid.

During oral argument on January 11, 2013, Tagayun testified:

COURT: [D]oes th[e PPA] have an arbitration provision that you agreed to?
. . . .
COURT: [Y]ou have to tell me now, because you're representing yourself. Your husband can't represent you.
TAGAYUN: It has an arbitration clause.
COURT: Okay. So, you agreed to arbitration. . . when you signed the contract, you agreed to having the disputes go to arbitration, correct?
TAGAYUN: I guess. But I . . . was never asked directly.
COURT: But you read the contract and signed it, correct?
TAGAYUN: Yes. . . .

[(Emphasis added).]

Here, Tagayun's adhesion contract argument lacks merit. As discussed supra, a valid arbitration clause exists in an executed contract between the parties. Tagayun conceded during oral argument that she read the contract, and that it contained an arbitration clause. The arbitration clause explicitly referred to "all disputes" arising between the parties, which the Court in Martindale, supra, 173 N.J. at 97, found to be enforceable. Thus, the judge did not err in compelling arbitration.

Last, Tagayun requests that this court enter an order (1) staying the nonrenewal of the PPA pending further litigation and appeals; and (2) compelling AmeriChoice to compensate her for medical services rendered.

"[I]t is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). There exists an "overarching requirement that matters be explored first and fully before a trial court." Ibid. Moreover, a trial court must consider the following factors when determining whether to grant a preliminary injunction:

(1) whether an injunction is "necessary to prevent irreparable harm"; (2) whether "the legal right underlying [the applicant's] claim is unsettled"; (3) whether the applicant has made "a preliminary showing of a reasonable probability of ultimate success on the merits"; and (4) "the relative hardship to the parties in granting or denying [injunctive] relief."

[Rinaldo v. RLR Inv., LLC, 387 N.J.Super. 387, 395 (App. Div. 2006) (quoting Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982)).]

Tagayun's second request pertains to defendants' letter dated January 7, 2013, wherein defendants informed Tagayun that they were not going to renew the PPA. Mandell eluded to the letter during oral argument on January 11, 2013, but did not raise it in plaintiffs' motion. Plaintiffs raised the nonrenewal issue for the first time in a motion before this court seeking injunctive relief filed March 18, 2013. By way of order dated April 17, 2013, we denied plaintiffs' motion for injunctive relief. We decline to reconsider this issue.

Tagayun failed to raise the third request below. We do not welcome the opportunity to do so now. See Robinson, supra, 200 N.J. at 20. In addition, Tagayun has failed to demonstrate the factors necessary for injunctive relief. See Rinaldo, supra, 387 N.J.Super. at 395. Furthermore, in certain situations, coverage of care continues after the PPA terminates. The PPA's "Continuation of Services" provides:

Upon termination of this Agreement for any reason, other than Health Plan's insolvency, Provider shall continue to furnish Covered Services to Members and Health Plan shall continue to compensate Provider in accordance with the provisions of this Agreement:
. . . .
(b) If Provider is a health care professional, for any Member under Provider's care who, at the time of termination of this Agreement, is a registered bed patient at a hospital or other institution, coverage shall continue until such Member's discharge therefrom.
. . . .

[(Emphasis added).]

Therefore, Tagayun's argument that her patients will be without coverage shortly after the PPA ends is inaccurate.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.