GEICO CASUALTY COMPANY v. SHAWN L. HAWKINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6243-11T3

GEICO CASUALTY COMPANY,

Plaintiff-Respondent,

v.

SHAWN L. HAWKINS,

Defendant-Appellant.

______________________________

Argued April 17, 2013 Decided May 16, 2013

Before Judges Axelrad, Sapp-Peterson and Happas.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5681-11.

David W. Burns argued the cause for appellant (LaCovara & Burns, attorneys; Mr. Burns, on the brief).

Elizabeth C. Chierici argued the cause for respondent (Chierici, Chierici & Smith, attorneys; Ms. Chierici, on the brief).

PER CURIAM

This is an appeal of a trial judge's order granting reconsideration and vacating an award issued by an arbitrator pursuant to the Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30. We are satisfied N.J.S.A. 2A:23A-18(b), which states that once a trial court has entered judgment "[t]here shall be no further appeal or review[,]" requires dismissal of this appeal.

Because we are convinced dismissal is compelled, we briefly summarize the factual background. Defendant, Shawn Hawkins, presented a claim for personal injury protection (PIP) benefits, N.J.S.A. 39:6A-4, to plaintiff, GEICO Casualty Company (GEICO), under an automobile policy GEICO issued to his wife. Following an investigation, GEICO concluded defendant was ineligible for coverage because he sustained injuries while operating a stolen vehicle from which he fled on foot while being pursued by police. He was struck by another motorist but was able to get up and run to some shrubs before being apprehended. He was later charged with receiving stolen property, N.J.S.A. 2C:20-7; possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); and resisting arrest, N.J.S.A. 2C:29-2a.

Defendant filed for arbitration. The parties agreed the arbitrator would determine the applicability of N.J.S.A. 39:6A-7a to the circumstances surrounding defendant's injuries. N.J.S.A. 39:6A-7a permits insurers "to exclude a person from benefits . . . if that person's conduct contributed to his personal injuries or . . . while committing a high misdemeanor or felony or seeking to avoid lawful apprehension, to the circumstances surrounding defendant's injuries." The GEICO policy issued to defendant's wife contained an exclusion provision mirroring this statutory language. The arbitrator found that the exclusion did not apply because defendant was not actually operating a motor vehicle at the time he sustained his injuries.

GEICO thereafter moved before the Law Division to vacate the award. The judge denied the motion, but upon reconsideration concluded the arbitrator had mistakenly applied the law to the facts. Concluding he owed no deference to the arbitrator's interpretation of the law, the judge vacated the award. In doing so, he reasoned the arbitrator incorrectly interpreted our decision in Serio v. Allstate Insurance Company, 210 N.J. Super. 167 (App. Div. 1986), and stated that if the Legislature had intended to limit the interpretation of "apprehension" under N.J.S.A. 39:6A-7a to

high speed chases[,] they would've put that in there. The fact that they don't, to me, means -- the proper statutory construction means that it applies to all aspects . . . that fall under the exclusion. . . . I don't think the exclusion requires that that be done while operating a motor vehicle.

Defendant subsequently sought reconsideration of this decision, which the judge denied. The present appeal followed.

On appeal defendant raises the following points for our consideration:

POINT I

THE MOTION JUDGE ERRED ON RECONSIDERATION BY CHANGING THE STANDARD OF REVIEW OF THE DRP'S DECISION TO ONE THAT WAS NOT PROVIDED FOR UNDER THE NEW JERSEY ALTERNATIVE PROCEDURE FOR DISPUTE RESOLUTION ACT, IMPROPERLY SUBSTITUTING ITS PERSONAL INTEPRETATION OF LAW AS THE STANDARD WHEN THERE HAD BEEN NO FINDING OF A "MISTAKE OF LAW" BY THE DRP.

POINT II

THE MOTION COURT ERRED IN CHOOSING TO ADOPT A BROADER AND MORE EXPANSIVE INTERPRETATION OF THE EXCLUSIONARY CLAUSE OF N.J.S.A. 39:6A-7A WHEN A MORE NARROW READING OF THE SCOPE OF AND RATIONALE FOR THE EXCLUSIONARY CLAUSE WAS BOTH REASONABLE AND REQUIRED UNDER THE LAW.

POINT III

THE MOTION COURT ERRED IN CHOOSING TO ADOPT A BROADER AND MORE EXPANSIVE INTERPRETATION OF THE EXCLUSIONARY CLAUSE OF N.J.S.A. 39:6A-7A IN DISREGARD OF THE APPELLATE DIVISION'S FINDING ON THE LEGISLATIVE PURPOSE FOR THAT EXCLUSION WHEN A MORE NARROW READING OF THE APPELLATE DIVISION'S DECISION WAS BOTH REASONABLE AND REQUIRED UNDER THE LAW.

POINT IV

THE MOTION COURT ERRED BY FAILING TO FIND THAT THE PIP CARRIER HAD NOT SATISFIED ITS OBLIGATION TO PROVE THE REQUIRED ELEMENT OF "KNOWING WRONGDOING" ON THE PART OF THE DEFENDANT AS PART OF PLAINTIFF'S AFFIRMATIVE DEFENSE AND IMPROPERLY RELIEVED THE PIP CARRIER OF ITS BURDEN OF PROVING THAT DEFENDANT SHAWN HAWKINS FELL WITHIN THE SCOPE OF THE EXCLUSIONARY CLAUSE.

POINT V

COUNSEL FOR DEFENDANT SHAWN HAWKINS IS ENTITLED TO ADDITIONAL COSTS AND FEES INCURRED IN REFERENCE TO THE APPEAL OF THIS MATTER.

As we previously stated, dismissal is warranted. We therefore decline to address the points raised.

PIP disputes are resolved pursuant to the New Jersey Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30. The APDRA provides a streamlined and limited process for a party seeking to challenge an arbitration award. Proceedings under the APDRA are "summary in nature" and "allow[] parties by agreement to have resolution of factual and legal issues in accordance with informal proceedings and limited judicial review in an expedited manner." N.J.S.A. 2A:23A-19. The fundamental policy underlying the APDRA is "'finality and limited judicial involvement.'" Mt. Hope Dev. Assocs. v. Mt. Hope Waterpower Project, L.P., 154 N.J. 141, 149 (1998) (quoting Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349, 361 (1994)).

N.J.S.A. 2A:23A-13(c) sets forth the limited grounds for vacating an award if the court finds that the rights of a party have been prejudiced, which include "[t]he umpire's committing prejudicial error by erroneously applying law to the issues and facts presented for alternative resolution."

Here, although not specifically uttering the language "prejudicial error" when explaining his reasons for vacating the award, the trial judge determined that the arbitrator improperly expanded the ruling in Serio, resulting in an error in law. The judge told defense counsel that he assumed counsel would argue otherwise, namely, "that there's no prejudicial error." Moreover, in the later hearing to reconsider his earlier order reconsidering the denial of plaintiff's motion to vacate the award, the judge explained that in the earlier proceeding, he acknowledged he was required to vacate the award if he "found the [arbitrator] committed prejudicial error by erroneously applying the law to the issues and facts presented for alternative resolution." The judge reiterated that he "found . . . the [arbitrator] improperly interpreted the holding in Serio . . . [a]nd, therefore, the [c]ourt granted plaintiff's motion for reconsideration."

As a reviewing court, our role is to initially determine solely whether the Law Division judge acted within the parameters of the APDRA. Fort Lee Surgery Ctr., Inc. v. Proformance Ins. Co., 412 N.J. Super. 99, 103-04 (App. Div. 2010). Where we are convinced the judge has acted within that statutory framework, "we are bound by N.J.S.A. 2A:23A-18(b) to dismiss the appeal." Ibid. "[W]hen the trial judge adheres to the statutory grounds in reversing, modifying[,] or correcting an arbitration award, [the court has] no jurisdiction to tamper with the judge's decision or do anything other than recognize that the judge has acted within his jurisdiction." N.J. Citizens Underwriting Reciprocal Exch. v. Kieran Collins, D.C., LLC, 399 N.J. Super. 40, 48 (App. Div.), certif. denied, 196 N.J. 344 (2008). Stated differently, where a judge has provided a rational explanation for how an arbitrator committed prejudicial error, N.J.S.A. 2A:23A-18 requires dismissal of an appeal of that determination regardless of whether we, as a reviewing court, are of the view the trial judge exercised that jurisdiction imperfectly. Fort Lee Surgery Ctr., supra, 412 N.J. Super. at 104.

We are satisfied the judge rationally explained how the arbitrator committed prejudicial error by adopting what he construed as an expansive interpretation of our holding in Serio. "Because the judge navigated within APDRA's parameters, we have no appellate jurisdiction to review that decision . . . ." Ibid. Nor are we convinced the circumstances under review here present "'rare circumstances' grounded in public policy that might compel [our] limited appellate review." Mt. Hope Dev. Assoc., supra, 154 N.J. at 152 (quoting Tretina Printing, supra, 135 N.J. at 364-65).

D