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DOCKET NO. A-5326-04T35326-04T3







Submitted December 14, 2005 - Decided

Before Judges Weissbard and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-3255-03.

The Ferrara Law Firm, attorneys for appellant (Michael A. Ferrara, Jr. and Niki A. Trunk, on the brief).

Susan L. Moreinis, attorney for respondent.


Plaintiff Patricia Massi appeals from the Law Division's February 23, 2005 order dismissing her complaint for personal injury protection (PIP) benefits against defendant Rutgers Casualty Insurance Company, and the court's subsequent April 29, 2005 order denying reconsideration. We reverse.

The facts and procedural history are not in dispute. Plaintiff was injured in an automobile accident on March 11, 1998. She treated with, among others, Cherry Hill Medical Associates, which is owned and operated by Philip Getson, D.O., who provided plaintiff with both medical treatment and physical therapy services.

Plaintiff was insured by Rutgers for PIP benefits. Accordingly, by letter of December 11, 2000, plaintiff's attorney submitted a claim for those benefits to Rutgers. Included in that claim was a bill from Cherry Hill Medical Associates "(physician)" for services from March 11, 1998 through November 2, 1999, totaling $3235. The statement was for medical services performed by Dr. Getson, not for physical therapy services. Rutgers denied the claim.

Plaintiff subsequently demanded arbitration with the American Arbitration Association (AAA) on June 20, 2002. The demand for arbitration included a claim against Cherry Hill Medical Associates for $3710. Plaintiff was successful at the arbitration proceeding. The arbitrator made the following finding: "I have reviewed Dr. Getson's reports and bills in reference to his alleged outstanding amount due Cherry Hill Medical Associates of $3,710.00. I find the balance of Getson's medical treatment was medically necessary and order payment consistent with the medical fee schedule."

The demand for arbitration did not include the outstanding amount of $12,805 from Cherry Hill Medical Associates for physical therapy. According to a certification of plaintiff's counsel, that bill was not included as part of the original arbitration demand because a representative of Dr. Getson's office failed to tell him about it. Subsequently, another representative from Dr. Getson's office told counsel that the first representative had "confused Dr. Getson's bill with the bill due for physical therapy." Simply put, counsel did not include the $12,183.50 in the demand for arbitration because he did not know about it. When he found out about it, and made the claim, Rutgers denied it.

After plaintiff filed suit demanding payment on November 14, 2003, the parties went to arbitration pursuant to Rule 4:21A-1. At the arbitration proceeding, Rutgers did not raise the entire controversy doctrine as a defense, although it was listed as an affirmative defense in defendant's answer to the complaint. On August 26, 2004, the arbitrator found for plaintiff.

Following the arbitrator's award, defendant, on September 3, 2004, demanded a trial de novo. The parties appeared for trial before the Law Division on February 7, 2005. On that date, Rutgers orally moved to dismiss the complaint based on the entire controversy doctrine. The trial judge granted the motion and dismissed the complaint.

The entire controversy doctrine developed as part of the common law, and is now codified in Rule 4:30A, which states:

Non-joinder of claims required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims to the extent required by the entire controversy doctrine . . . .

The doctrine promotes complete and final determinations, prevents disjointed litigation, and provides fair judicial process. Bonaventure Int'l., Inc. v. Borough of Spring Lake, 350 N.J. Super. 420, 440 (App. Div. 2002). It is an equitable concept; and, "the polestar of the application of the rule is judicial fairness." Oliver v. Ambrose, 152 N.J. 383, 395 (1998); DiTrolio v. Antiles, 142 N.J. 253, 272 (1995)). Accordingly, the application of the entire controversy doctrine is "left to judicial discretion based on the factual circumstances of individual cases." Brennan v. Orban, 145 N.J. 282, 291 (1996).

The entire controversy doctrine is an affirmative defense. R. 4:5-4. It must be pleaded, Pressler, Current N.J. Court Rules, comment 14 on R. 4:5-4 (2006), and timely raised. Brown v. Brown, 208 N.J. Super. 372, 384 (App. Div. 1986). "[A] party's conduct may estop him from relying on an affirmative defense." Ibid.; see also Aikens v. Schmidt, 329 N.J. Super. 335, 340-41 (App. Div. 2000); Kopin v. Orange Prods., Inc., 297 N.J. Super. 353, 375-76 (App. Div.), certif. denied, 149 N.J. 409 (1997).

Against these standards governing application of the entire controversy doctrine, we conclude that the trial court abused its discretion by dismissing plaintiff's claim. While defendant raised the entire controversy doctrine as an affirmative defense, it sat on its hands and took no action to secure relief under that defense until the trial date. Nor did defendant comply with the requirements of the New Jersey Court Rules that call for a party seeking affirmative relief to serve and file its papers in support of that relief not later than twenty-eight days before the return date. R. 4:6-2; R. 4:46-1. Here, not only did defendant disregard the time limitations, but it did not file any papers in support of its motion.

We recognize that the facts in this case are not as compelling as those in Kopin, supra, where the defendant did not raise the entire controversy doctrine in its answer, 297 N.J. Super. at 375-76, or those in Aikens, supra, where the defendant raised the entire controversy doctrine after the plaintiffs had rested their case, 329 N.J. Super. at 340. Nevertheless, it would be simply inequitable under the facts of this case to permit defendant to raise the entire controversy doctrine on the date of trial. By that time, plaintiff had already assumed the burdens of the second litigation, which no doubt required some time and expense on behalf of both plaintiff and her attorney. Notably, defendant has provided no valid reason for not seeking relief before the trial date.

As noted earlier, "the polestar of the application of the rule is judicial fairness." DiTrolio, supra, 142 N.J. at 272. The failure to include that bill in the first proceeding was not the fault of plaintiff; it was the result of incorrect information from the medical provider. No evidence has been presented by Rutgers of actual prejudice should the case proceed to trial. Under these circumstances, it would be unfair to invoke the entire controversy doctrine to preclude plaintiff's claim.

Reversed and remanded for further proceedings consistent with this opinion.





December 21, 2005