JEAN SMITH v. NEW JERSEY CURE INS. CO.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4996-05T54996-05T5

JEAN SMITH,

Plaintiff-Respondent,

v.

NEW JERSEY CURE INSURANCE CO.,

Defendant-Appellant.

_________________________________

 

Submitted: November 28, 2006 - Decided December 8, 2006

Before Judges Kestin and Weissbard.

On appeal from the Superior Court of new Jersey, Law Division, Civil Part, Atlantic County, L-2029-05.

Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for appellant (Walter F. Kawalec, III, on the brief).

Gerald F. Miksis, attorney for respondent.

PER CURIAM

Defendant, New Jersey Cure Insurance Company, appeals from orders entering judgment for $10,000 in favor of plaintiff and denying defendant's motion for reconsideration. We affirm.

The lawsuit emanated from plaintiff's claim for medical benefit payments pursuant to a motor vehicle insurance policy. The claim was arbitrated, and an award of $10,000 resulted. No timely demand for a trial de novo was filed. See R. 4:21A-6. Plaintiff moved for confirmation of the arbitration award and for entry of judgment in the amount of the award. Judge Perskie granted that motion for reasons expressed in a memorandum of decision appended to the order. Subsequently, he denied defendant's motion to reconsider, explaining in a memorandum of decision appended to that order that defendant had failed to demonstrate error on the trial court's part or a failure to consider evidence in ruling upon the earlier application.

We have reviewed the record in the light of the arguments advanced by the parties and prevailing legal standards, and are in substantial agreement with Judge Perskie's expressed reasons for the orders he entered. We discern nothing in the record that justifies defendant's failure to assert its rights earlier, either in the arbitration proceeding itself or by way of a timely demand for a trial de novo. No adequate showing has been made of the extraordinary circumstances that would justify an extension of the time periods provided by R. 4:21A-6. See Hartsfield v. Fantini, 149 N.J. 611, 616-17 (1997); Mazakas v. Wray, 205 N.J. Super. 367, 370-72 (App. Div. 1985).

The arbitration award took account of the $10,000 policy limit in respect of the $10,141.18 in medical expense claims. The time for defendant to assert that the actual medical expenses would be less when measured by the medical fee schedule applicable in matters of this type, was in the arbitration itself or in a trial thereafter pursuant to a timely demand for de novo consideration. Given defendant's failure to avail itself of these two opportunities, it cannot be heard to assert a right to a third chance under the "extraordinary circumstances" paradigm.

Affirmed.

 

 

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A-4996-05T5

December 8, 2006