Opinion
DOCKET NO. A-4017-11T4
12-21-2012
STEPHEN J. DELPOME and MARCIA ANNE DELPOME, Plaintiffs-Appellants, v. TRAVELERS INSURANCE COMPANY, Defendant-Respondent.
Cory Anne Cassidy argued the cause for appellants (Riposta, Lawyers LLC, attorneys; Ms. Cassidy, of counsel and on the brief). Kalman Miller argued the cause for respondent (Law Offices of Karen C. Dodson, attorneys; Mr. Miller, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ostrer and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10020-11.
Cory Anne Cassidy argued the cause for appellants (Riposta, Lawyers LLC, attorneys; Ms. Cassidy, of counsel and on the brief).
Kalman Miller argued the cause for respondent (Law Offices of Karen C. Dodson, attorneys; Mr. Miller, of counsel and on the brief). PER CURIAM
Plaintiffs appeal from a March 2, 2012 Order granting defendant's motion to compel arbitration of their claim for personal injury protection (PIP) benefits under an automobile insurance policy issued by defendant. On appeal, plaintiffs argue that the trial judge improperly granted defendant's motion to compel arbitration because they had already filed a complaint for PIP benefits in Superior Court. We disagree and affirm. We derive the following facts from the record. Stephen J. Delpome (plaintiff) was injured in 2007 when his motor vehicle was struck from behind by another car. Plaintiff sustained cervical spine injuries in the accident, and received treatment and epidural steroid injections. First Trenton Indemnity Company (incorrectly named Travelers Insurance Company) (defendant), had issued an automobile insurance policy to plaintiff that was in effect on the date of the accident and, pursuant to the policy, authorized and paid for the treatment and injections.
Delpome and his wife are both plaintiffs in the instant matter, but for the purposes of this opinion, we refer to them singly as "plaintiff."
Plaintiff alleged that the epidural injections only provided temporary relief, and that he required an additional surgical procedure. Defendant declined to authorize payment for the surgery. Accordingly, plaintiff instituted an action for first-party PIP benefits in the Law Division.
Plaintiff also filed a separate action for personal injuries, which was pending at the time of this appeal.
--------
Defendant filed its answer, and moved to compel arbitration pursuant to N.J.S.A. 39:6A-5.1 and N.J.A.C. 11:3-5.2. In opposition to the motion, plaintiff argued that his decision to pursue his remedy in Superior Court cannot be "unmade" by the defendant. The trial judge entered an order granting defendant's motion to compel arbitration. Plaintiff now appeals from that order.
The right to arbitration generally arises from the terms of the insurance contract between the parties. Plaintiff's insurance policy with defendant states: "[a]ll disputes, including those that have not been resolved in the Internal Appeal Procedure, may be submitted through the Personal Injury Protection Dispute Resolution process . . . ." Plaintiff argues that "the language in the subject policy is vague and ambiguous because it omits specific reference to which parties are entitled to avail themselves of the arbitration process."
The interpretation of an insurance contract is a question of law, which appellate courts "decide independent of the trial court's conclusions." Simonetti v. Selective Ins. Co., 372 N.J. Super. 421, 428 (App. Div. 2004). Also, because the decision to compel arbitration was based solely on an issue of law, our review is de novo. Cole v. Jersey City Med. Ctr., 425 N.J. Super. 48, 56 (App. Div.), certif. granted, 212 N.J. 198 (2012).
The language of an insurance policy should be interpreted "by giving its words 'their plain, ordinary meaning.'" Arthur Andersen v. Federal Ins. Co., 416 N.J. Super. 334, 345 (App. Div. 2010) (quoting Zacarias v. Allstate Ins. Co., 168 N.J. 590, 595 (2001)). The policy should be "enforced as written" where the "express language" is "clear and unambiguous." Arthur Andersen, supra, 416 N.J. Super. at 346. Alternatively, where the terms are ambiguous, courts should "interpret the contract in accordance with the 'reasonable expectations' of the insured." Ibid. (quoting Shotmeyer v. New Jersey Realty Title Ins. Co., 195 N.J. 72, 82 (2008)).
However, "[a] 'genuine ambiguity' arises only 'where the phrasing of the policy is so confusing that the average policyholder cannot make out the boundaries of coverage.'" Arthur Andersen LLP, supra, 416 N.J. Super. at 346 (quoting Progressive Cas. Ins. Co. v. Hurley, 166 N.J. 260, 273-74 (2001)). Further, even in cases where ambiguities exist, "courts cannot 'write for the insured a better policy of insurance than the one purchased.'" Flomerfelt v. Cardiello, 202 N.J. 432, 441 (2010) (quoting Walker Rogge, Inc. v. Chelsea Title & Guar. Co., 116 N.J. 517, 529 (1989)); see also Shotmeyer, supra, 195 N.J. at 82-83.
The language in the policy at issue is unambiguous: all disputes may be submitted to arbitration. It is specious to suggest that because the policy omits any language specifying who may invoke arbitration, the policyholder has the sole right to elect arbitration.
Not only does the policy of insurance provide for arbitration of PIP disputes, but also, of course, the right to proceed to arbitration arises from statute, as well. N.J.S.A. 39:6A-5.1 provides:
Any dispute regarding the recovery of medical expense benefits or other benefits provided under personal injury protection coverage . . . may be submitted to dispute resolution on the initiative of any party to the dispute, as hereinafter provided.Accordingly, defendant had the statutory right to compel arbitration of plaintiff's claim for PIP benefits associated with the diagnosis and treatment of injuries to his cervical spine allegedly caused by the 2007 accident. Allstate Ins. Co. v. Sabato, 380 N.J. Super. 463, 470 (App. Div. 2005) (A PIP "dispute may proceed to court only if neither side chooses alternative dispute resolution."); Coal. for Quality Health Care v. N.J. Dep't. of Banking & Ins., 348 N.J. Super. 272, 310 (App. Div.), certif. denied, 174 N.J. 194 (2002).
We therefore agree with the trial judge that, "[s]imply because the plaintiff [chose] to exercise the litigation option doesn't mean that the arbitration option cannot be subsequently chosen, especially in light of the preference that the Courts have for alternative dispute resolution." See also Coal. for Quality Health Care, supra, 348 N.J. Super. at 317 (detailing the legislative policy encouraging arbitration of PIP disputes); State Farm Ins. Co. v. Sabato, 337 N.J. Super. 393, 396-97 (App. Div. 2001); Rodriguez v. General Acc. Inc. Co., 325 N.J. Super. 163 (Ch. Div. 1999) (holding that, even where the plaintiff first chose to litigate his PIP claim, he could nonetheless change his mind and request binding arbitration).
Plaintiff also argues that the trial judge's decision must be reversed because it may lead to conflicting results at arbitration of the PIP claim and trial of the claim against the tortfeasor, undercutting judicial economy. We disagree.
The doctrine of collateral estoppel "bars relitigation of any issue [that] was actually determined in a prior action, generally between the same parties, involving a different claim or cause of action." Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 337 (1996) (citation omitted). "The guiding principle is [whether] the party to be bound had a 'full and fair opportunity to litigate the issue' in the earlier proceeding." Habick v. Liberty Mutual Fire Insurance Co., 320 N.J. Super. 244, 257 (App. Div.), certif. denied, 161 N.J. 149 (1999) (quoting Restatement (Second) of Judgments § 29 (1982)). Thus, where a PIP dispute has been previously decided through arbitration, a party may be collaterally estopped from retrying an issue necessary to the claim that was determined against that party in the prior proceeding. See, e.g., Lopez v. Patel, 407 N.J. Super. 79, 86 (App. Div. 2009); Habick, supra, 320 N.J. Super. 244. Case law suggests that strict application of the doctrine in this setting depends on whether the interests of the tortfeasor in subsequent litigation were adequately represented in that arbitration. See Zirger, supra, 144 N.J. at 338-39; Parks v. Colonial Penn Ins. Co., 98 N.J. 42 (1984).
In any event, while an arbitration result may affect a litigant's right to litigate a given issue, the doctrine of collateral estoppel will generally minimize the prospect of conflicting results and thus promote judicial economy. Certain fairness issues, such as inability to obtain a crucial medical report, see Barker v. Brinegar, 34 6 N.J. Super. 558, 569 (App. Div. 2002), or the denial of a full and fair adjudication of the issues of causation or damages, see Pace v. Kuchinsky, 347 N.J. Super. 202, 217-18 (App. Div. 2002), may nonetheless preclude application of a collateral estoppel bar. Regardless, the issue of collateral estoppel is not ripe for resolution here.
The remainder of plaintiff's arguments are without merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELLATE DIVISION