WILLIAM JOHNSTON v. NEW JERSEY MANUFACTURERS INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1842-08T31842-08T3

WILLIAM JOHNSTON,

Plaintiff-Appellant,

v.

NEW JERSEY MANUFACTURERS

INSURANCE COMPANY,

Defendant-Respondent.

__________________________________________________

 

Submitted September 8, 2009 - Decided

Before Judges Messano and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7917-08.

Roberts & Moscaritolo, L.L.C, attorneys for appellant (S. Gregory Moscaritolo, on the brief).

Connell Foley LLP, attorneys for respondent (Brian G. Steller, of counsel; Gregory E. Peterson, on the brief).

PER CURIAM

Plaintiff William Johnston appeals from summary judgment entered in favor of defendant, New Jersey Manufacturer's Insurance Company (NJM). Plaintiff raises the following points for our consideration:

POINT I

THE COURT BELOW ERRED BY NOT MAKING [] FINDINGS OF FACT AND CONCLUSIONS OF LAW AS REQUIRED UNDER RULE 1:7-4.

POINT II

THE COURT'S DECISION SHOULD BE REVERSED BECAUSE IT FAILED TO APPLY THE CORRECT STANDARD OF REVIEW AND THE BROAD PUBLIC POLICY OF N.J.S.A. 39:6A-4 FOUND IN THE CASELAW.

POINT III

THE COURT'S DECISION SHOULD BE REVERSED UNDER THIS COURT'S NONDELEGABLE SPECIAL SUPERVISORY FUNCTION WHICH REQUIRES THE EXERCISE OF APPELLATE COURT REVIEW.

We have considered these arguments in light of the record and applicable legal standards. We conclude that the statutory bar to appellate review of the Law Division's order compels the dismissal of the appeal.

Plaintiff was injured in a single-car motor vehicle accident that occurred on September 4, 2006. The driver, Daniel Roselli, was insured by NJM. Plaintiff sought personal insurance protection (PIP) benefits, and filed a request for arbitration before a dispute resolution professional (DRP) appointed by the National Arbitration Forum.

The essential disputed issue was how the accident occurred. Plaintiff alleged that he was drinking in a bar and, as he walked to a friend's house, Roselli pulled alongside him in his car and agreed to provide plaintiff with a ride to a friend's house. Plaintiff had to urinate, so he asked Roselli to pull the car over, and he did. Plaintiff exited the car, but left the passenger door open to shield himself from being seen. He alleged that Roselli, for no apparent reason, sped off; the door struck plaintiff, knocked him to the ground, and he was injured.

However, in his deposition, plaintiff acknowledged that his recollection of the evening's events was hazy. For example, plaintiff could not remember the name of the street where the accident occurred. He admitted that he could not confirm or deny the statements that he gave to the responding police officer on the night of the accident.

Roselli, who also admitted drinking on the night in question, claimed that he and plaintiff had an altercation in the bar, and that Roselli's friend struck plaintiff, causing him some injuries. Roselli denied, however, ever giving plaintiff a ride or striking him with the car.

In addition to the deposition testimony of plaintiff and Roselli, the DRP considered the police report of the incident, plaintiff's medical records, pictures of plaintiff's physical condition shortly after the accident, photos of Roselli's vehicle, and the statement of an alleged witness to the event, Kathy Formica. Plaintiff told the police his version of the events and refused medical attention the evening of the accident, seeking medical treatment for his injuries for the first time on September 12, 2006. Those records reveal plaintiff told the emergency room personnel he was "hit by a car while walking[.]" Photos of the car showed that the front passenger-side window was taped and covered with plastic, though Roselli denied that the car was in this condition on September 4. Plaintiff had no idea whether the car was damaged when it struck him.

Formica supplied a statement to a private investigator more than two years after the accident. She claimed that she heard a "loud bang and the squealing of car tires." She looked out her bedroom window and saw Roselli, who she knew from the neighborhood, drive off, and heard plaintiff, who she also knew, state, "He hit me, the little bastard hit me." She and her husband tried to assist plaintiff and ultimately summoned the police.

The DRP concluded that plaintiff was "a pedestrian struck by a motor vehicle operated by [Roselli] and insured by NJM on [September 4, 2006]." However, she also concluded that plaintiff was a "stranger pedestrian" when struck by Roselli's vehicle. As a result, she determined that plaintiff's claim for PIP benefits should have been presented to the New Jersey Property Liability Insurance Guaranty Association (NJPLIGA) in its capacity as statutory successor to the Unsatisfied Claim and Judgment Fund (the UCJF). She denied plaintiff's claim for benefits under NJM's policy.

Plaintiff filed an order to show cause seeking modification of the arbitration award "to allow PIP benefits to [] plaintiff and confirm[] the award as modified[,]" and counsel fees. Plaintiff contended the DRP's decision not supported by substantial evidence, N.J.S.A. 2A:23A-13(b), and that she failed to adequately consider the evidence that he was not a "pedestrian" for purposes of PIP benefits. See N.J.S.A. 39:6A-2(h) (defining a "pedestrian" as "any person who is not occupying, entering into, or alighting from a vehicle") (emphasis added). Plaintiff contended that the award should be modified pursuant to N.J.S.A. 2A:23A-13(e)(4), which provides that a court may modify an arbitrator's award if "[t]he rights of the party applying for the modification were prejudiced by the umpire erroneously applying law to the issues and facts presented for alternative resolution."

NJM moved for summary judgment. Without further explanation, plaintiff has advised us that the matter was heard "in chambers without any record." NJM, in its brief, explains that on the return date of the order to show cause and summary judgment motion, the judge told the parties that "they could request a hearing upon receipt of his decision." It notes plaintiff never sought such a hearing. In any event, the judge issued the order under review along with a one page rider explaining his decision. He determined "the DRP properly applied the law to this case in determining the status of the plaintiff[.]" The judge further noted the DRP made a factual finding regarding "plaintiff's relationship to the motor vehicle[,]" i.e., that "plaintiff did not have a substantial nexus to the motor vehicle." The judge entered summary judgment in NJM's favor, and dismissed plaintiff's complaint.

In Points One and Two, plaintiff argues that the motion judge failed to adequately state his factual findings and conclusions, Rule 1:7-4, and failed to apply the correct standard of review under the Alternative Procedure for Dispute Resolution Act, N.J.S.A. 2A:23A-1 to -19 (APDRA). In this regard, plaintiff contends the judge failed to "make an independent determination of the facts[,]" and failed to determine there was "substantial evidence" supporting the DRP's factual findings. N.J.S.A. 2A:23A-13(b). In Point Three, plaintiff argues that although the APDRA generally prohibits appeal of the trial court's decision, we should nevertheless exercise our supervisory powers and entertain his appeal in this case.

NJM contends that the appeal should be dismissed because pursuant to the APDRA, we lack jurisdiction to consider the matter. Alternatively, it contends that even if we entertain the appeal, plaintiff has failed to demonstrate any error in the factual determinations or legal conclusions reached by the DRP and the motion judge.

As we recently noted, "The APDRA sets strict limits on the appeal of an arbitration award." Riverside Chiropractic Group v. Mercury Ins. Co., 404 N.J. Super. 228, 235 (App. Div. 2008). N.J.S.A. 2A:23A-18(b) specifically provides, "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." Our Supreme Court has upheld the validity of this "proscription against appellate review[.]" Riverside Chiropractic, supra, 404 N.J. Super. at 235 (citing Mt. Hope Dev. Assocs. v. Mt. Hope Waterpower Project, L.P., 154 N.J. 141, 147 (1998)). We have, however, recognized a limited number of situations, where appellate review is appropriate, all of which implicate our supervisory responsibility to insure that application of the statute in a particular case does not violate important public policy concerns. Riverside Chiropractic, supra, 404 N.J. Super. at 239-40.

The APDRA provides:

In considering an application for vacation, modification or correction, a decision of the umpire 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[.]

[N.J.S.A. 2A:23A-13(b) (emphasis added).]

Plaintiff never asserted any of the reasons set forth in subsection (c) (1) - (4) as grounds for modifying the award. Thus, contrary to plaintiff's assertion that the judge was required to "make an independent determination of the facts" in this case, the judge was obligated to adopt the factual findings of the DRP, assuming they were supported by "substantial evidence." Although the judge's written statement of facts is short, we think it clear that he implicitly reached the conclusion that the DRP's factual findings were adequately supported. Plaintiff points to various evidence that would lead to a contrary conclusion, i.e., that he was not a pedestrian as defined under the PIP statute. However, the existence of evidence to support a contrary factual conclusion does not mean that modification of the award was warranted.

In short, this is not a case like Morel v. State Farm Ins. Co., 396 N.J. Super. 472 (App. Div. 2007). There we held that "the [APDRA's] denial of a right to appeal . . . is based on the assumption that the trial judge will decide the case by applying the principles dictated by the Legislature." Id. at 476. In Morel, we reversed and remanded because the Law Division judge "fail[ed] to carry out that legislative direction" by entering an order without any explanation of the reasons for confirming the award. Ibid.

As we have already noted, the judge in this case determined that there was sufficient evidence to support the factual findings made by the DRP. As a result, he was statutorily obligated to treat those facts as having been conclusively determined. Plaintiff cannot point to any legal mistake that the DRP or the judge made based upon those factual findings. Instead, he cites to the case law and broad public policies that support an expansive reading of the PIP statute. However, that precedent and those policies are only pertinent if the statute applies to the facts as found. Thus, the claim that the DRP "erroneously appl[ied] law to the issues and facts presented for [] resolution[,]" N.J.S.A. 2A:23A-13(e)(4), simply had no merit and this conclusion is implicit in the judge's statement of reasons.

Lastly, we reject the argument made in Point III that based upon our supervisory powers, we should exercise our jurisdiction in spite of the APDRA's statutory bar. "[P]laintiff's claims do not rise to the level of public policy that warrants appellate review." Riverside Chiropractic, supra, 404 N.J. Super. at 240.

 
The appeal is dismissed.

Plaintiff and Roselli were apparently deposed as part of discovery in plaintiff's underlying bodily injury suit. That case was ultimately settled.

Those subsections permit the arbitration award to be vacated if the court finds that the rights of a "party were prejudiced by:

(1) [c]orruption, fraud or misconduct in procuring the award; (2) [p]artiality of an umpire appointed as a neutral; (3) [i]n making the award, the umpire's exceeding their power or so imperfectly executing that power that a final and definite award was not made; (4) [f]ailure to follow the procedures set forth in this act[.]" N.J.S.A. 2A:23A-13(c)(1)-(4).

(continued)

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A-1842-08T3

September 11, 2009