LIBERTY MUTUAL INSURANCE COMPANY v. ASSOCIATED SURGEONS OF NORTHERN NEW JERSEY, P.A.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3981-08T13981-08T1

LIBERTY MUTUAL INSURANCE COMPANY,

Plaintiff-Appellant/

Cross-Respondent,

v.

ASSOCIATED SURGEONS OF NORTHERN

NEW JERSEY, P.A., DAVID DVIR and

JAY TENDLER,

Defendants-Respondents/

Cross-Appellants,

and

BORIS PRAKHINA,

Defendant.

______________________________________________________

Argued May 5, 2010 - Decided June 3, 2010

Before Judges Axelrad, Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8820-06.

Clifford J. Giantonio argued the cause for appellant/cross-respondent (Law Offices of Baumann, Lynes & Viscomi, attorneys; Mr. Giantonio, on the brief).

Thomas A. Gentile argued the cause for respondents/cross-appellants (Lampf, Lipkind, Prupis & Petigrow, attorneys; Mr. Gentile and Neil L. Prupis, on the brief).

PER CURIAM

In this appeal, which was calendared back-to-back with a similar matter also decided today, we consider whether we have jurisdiction to review an order confirming arbitration awards that were issued in accordance with the procedures set forth in the Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30. We conclude N.J.S.A. 2A:23A-18(b), which mandates that there be "no further appeal or review" after the trial court enters judgment in APDRA matters, bars our review of the confirmatory judgment. We also decline to exercise our supervisory jurisdiction.

Plaintiff Liberty Mutual Insurance Company commenced this action to challenge arbitration awards that had already been rendered and others that had yet to be decided, alleging defendants were operating an ambulatory surgical facility without a license and also making self-referrals in violation of the Codey Law, N.J.S.A. 45:9-22.5. Unlike the companion case decided today, the complaint left no doubt that Liberty Mutual sought the vacating of the awards that had been rendered pursuant to N.J.S.A. 2A:23A-13, stating, in one paragraph, that Liberty Mutual "appeals those [arbitration] decisions." Liberty Mutual also sought a stay of all other similar arbitrations that had not been decided that raised the same licensing and Codey Law issues which the judge granted.

We are limited by N.J.S.A. 2A:23A-18(b) to ensuring that the trial judge has confined his actions to those permitted by APDRA. See Liberty Mutual, supra, __ N.J. Super. at __; Fort Lee Surgical Ctr. v. Proformance Ins. Co., 412 N.J. Super. 99, 104 (App. Div. 2010); Riverside Chiropractic Group v. Mercury Ins. Co., 404 N.J. Super. 228, 240 (App. Div. 2008); N.J. Citizens Underwriting Reciprocal Exch. v. Kieran Collins, D.C., LLC, 399 N.J. Super. 40, 50 (App. Div.), certif. denied, 196 N.J. 344 (2008); Morel v. State Farm Ins. Co., 396 N.J. Super. 472, 476 (App. Div. 2007). That limitation applies regardless of whether we believe the trial judge's confirmation or vacation of the arbitrator's award was erroneous. Fort Lee, supra, 412 N.J. Super. at 104. Once satisfied the trial judge has acted within the scope of N.J.S.A. 2A:23A-13, we will not further review his or her judgment.

In his written decision, the trial judge reviewed the parties' factual contentions, explained the bases of the arbitrator's awards regarding Liberty Mutual's licensing and Codey Law contentions, and ultimately confirmed the awards. We do not dispute that the judge's decision was somewhat conclusory, and are mindful of our admonition in Fort Lee that the mere invocation of N.J.S.A. 2A:23A-13 is not alone sufficient to ward off our supervisory jurisdiction. Ibid. But we discern from the judge's reference to N.J.S.A. 2A:23A-13, which delineates the extent to which a trial court may intervene, and his discussion of the issues throughout the course of the eleven-page written decision, that the judge found no prejudicial error in the arbitrator's disposition of the licensing and Codey Law issues. We are, thus, compelled to dismiss Liberty Mutual's appeal regardless of our view of the merits.

Defendants Associated Surgeons of Northern New Jersey, P.A., David Dvir and Jay Tendler (defendants) sought in the trial court an award of counsel fees. We have previously held there is appellate jurisdiction to review counsel fee awards notwithstanding the legislative bar on appellate review in APDRA matters. Allstate Ins. Co. v. Sabato, 380 N.J. Super. 463, 473 (App. Div. 2005). As a result, we are free to review the issues raised in the cross-appeal on their merits.

In his initial decision confirming the awards, the trial judge cursorily denied defendants' request for counsel fees. In response to defendants' motion for reconsideration, the judge provided a comprehensive written decision that explained why he exercised his discretion to deny an award of fees to defendants. We affirm that determination substantially for the reasons set forth in the judge's written decision of March 9, 2009.

 
We dismiss Liberty Mutual's appeal and affirm the order that is the subject of defendants' cross-appeal.

Liberty Mutual Ins. Co. v. Garden State Surgical Ctr., __ N.J. Super. __ (App. Div. 2010).

At the outset of the action, the trial judge stayed the undecided arbitrations pending his decision. In his decision, the judge indicated that all arbitrations were released from the prior stay, but, in subsequently denying cross-motions for reconsideration, the judge ordered that his judgment be stayed pending appeal. Now that we have dismissed the appeal, the stay pending appeal is vacated.

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