GARDEN STATE PAIN MANAGEMENT P.A. v. COUNTRY-WIDE INSURANCE COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0650-07T20650-07T2

GARDEN STATE PAIN MANAGEMENT,

P.A., as subrogee of ABAD AHMED,

Plaintiff-Respondent,

v.

COUNTRY-WIDE INSURANCE

COMPANY,

Defendant-Appellant.

________________________________

 

Argued May 7, 2008 - Decided

Before Judges Wefing and Koblitz.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, No. L-2252-07.

Michael J. Monaghan argued the cause for

appellant (Mr. Monaghan, attorney and of

counsel; Elizabeth A. Monaghan, on the brief).

Walter L. Faust argued the cause for

respondent.

PER CURIAM

Abad Ahmed was injured in an automobile accident in New Jersey on March 21, 2003, while driving a car belonging to his uncle, Rahman Mujibur. Mujibur was a New York resident who insured the vehicle through Country-Wide Insurance Co. under a policy issued in New York. Country-Wide is not licensed to issue insurance in New Jersey, and it conducted no business in New Jersey. Its certificate of authority to conduct insurance business in New Jersey was withdrawn at its request, effective February 21, 2003, one month before the accident.

Following the accident, Ahmed was taken by ambulance to St. Joseph's Hospital in Paterson, where he provided a New Jersey address. He had X-rays and received medical treatment from Sall Myers Medical Association for his injuries. Ahmed applied to Country-Wide for no-fault benefits. He submitted an affidavit that he was not eligible for no-fault insurance under any other policy and listed his address as his uncle's address in Long Island City.

At first, Country-Wide took the position that Ahmed was not an eligible insured under his uncle's policy, and it sent denials on that basis to the hospital, the radiologist and Sall/Myers in June 2003.

In July 2003, however, Country-Wide issued checks to St. Joseph's, the radiologist and the Sall/Myers group for their services. The record does not disclose what led Country-Wide to this change of position. Country-Wide also received reports dated July 1, 2003, from a chiropractor, an orthopedist and a neurologist, all stating that Ahmed did not need any further treatment.

Ahmed, however, contended he continued to experience pain and related difficulties, and he came under the care of Garden State Pain Management for the injuries he received in the accident. Garden State sent requests to Country-Wide in September and October 2003 seeking pre-approval for pain management treatment. When it received no response, it proceeded to render treatment to Ahmed, who had assigned his rights under his uncle's policy to Garden State. Garden State submitted a claim for benefits which Country-Wide denied in November 2003 on the basis of the earlier reports which had indicated Ahmed had no need for any further treatment. Country-Wide made no mention in its denials to Garden State of any dispute about Ahmed's status as an eligible insured under his uncle's policy.

In December 2003 Garden State filed a demand for arbitration with the American Arbitration Association. The arbitrator held a hearing in February 2005 and in March 2007 issued a written opinion dismissing the arbitration without prejudice on the basis that there was no subject-matter jurisdiction in New Jersey over Country-Wide. The arbitrator gave no explanation as to how he came to that conclusion. Shortly thereafter, Garden State filed its complaint and order to show cause, appealing from that determination, contending that the arbitrator had made an error of law. Country-Wide opposed the order to show cause, contending that the arbitrator correctly decided there was no jurisdiction and, further, that Ahmed was a resident of New Jersey, not a resident of his uncle's household, and thus not entitled to no-fault benefits under his uncle's policy. During the course of the arbitration proceedings, Country-Wide deposed Ahmed. That deposition revealed that Ahmed had applied for United States citizenship in 1997 and had listed himself as a New Jersey resident. In 2002, he applied for a United States passport and gave his address as 323 Totowa Avenue in Paterson. At St. Joseph's Hospital, he gave the Paterson address. He was employed in New Jersey, and his wife lived in Paterson.

Following argument, the trial court issued an order referring the matter to arbitration before the National Arbitration Forum (NAF). It concluded that Country-Wide, having failed to respond to Garden State's requests for approval prior to proceeding to treat Ahmed, was precluded from defending the arbitration on the basis that Ahmed was not a resident of his uncle's household. The trial court directed that the only issues to be decided in the arbitration were the medical necessity of the treatments Garden State provided and the level of reimbursement, if any.

Country-Wide then moved for reconsideration. The trial court granted reconsideration to the extent that it directed that Country-Wide could raise any defense in the arbitration except that of jurisdiction, the court having concluded that NAF had subject-matter jurisdiction. Country-Wide has appealed.

Country-Wide argues that the trial court did not have in personam jurisdiction over it and that there was no basis to exercise long-arm jurisdiction over it. Respondent contends that Country-Wide's appeal is barred by N.J.S.A. 2A:23A-18.

We turn first to the question whether, as Garden State asserts, this appeal is barred by N.J.S.A. 2A:23A-18. If Garden State is correct, there would be no need to proceed further. The statute provides in pertinent part:

a. Whenever a court shall vacate, modify or correct an award as provided for in this act [it shall] thereupon enter an award based on that determination . . . .

b. 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 analysis begins, as it must, with the language of the statute. Higgins v. Pascack Valley Hosp., 158 N.J. 404, 418 (1999). Subsection (a) of the statute refers to a court vacating, modifying or correcting an award. It is only subsection (b) of the statute which places restrictions upon a party's right to appeal. Subsection (b) precludes an appeal of an order "confirming, modifying or correcting an award." There is no mention in subsection (b) of a court vacating a decree.

Here, although the trial court's order and opinion do not use the word "vacate," it is apparent that the trial court vacated the arbitrator's decision. We cannot consider that the Legislature was not aware of the clear distinction between these two statutory subsections. State v. Drury, 190 N.J. 197, 215 (2007) (where legislature has carefully employed a term in one place in a statute and excluded it in another, a court should not imply the omitted term); Higgins v. Pascack Valley Hosp., supra, 158 N.J. at 419 (When the legislature has carefully employed a term in one place in a statute and excluded it in another, it should not be implied where excluded; the omission, being "too obvious to ignore," is deemed purposeful). The Legislature, having omitted the term "vacate" in subsection F(b) of the statute, did not bar an appeal from a trial court order vacating an arbitral decree. We are satisfied that we have the power to entertain this appeal.

Our conclusion in this respect does not afford Country-Wide all the relief it seeks, however. Because the arbitrator did not provide an explanation for his ruling, the arguments of the parties have not been entirely consistent or focused. They have shifted between in personam jurisdiction, subject matter jurisdiction, and minimum contacts, without completely distinguishing between these entirely separable concepts.

From the transcripts of the two oral arguments before the trial court, we conclude that Country-Wide does not assert that New Jersey may not exercise long-arm jurisdiction over it. Indeed, it argued to the trial court that it was entitled to have the court conduct a plenary hearing to decide whether Ahmed was attempting to perpetrate a fraud as to his residency, rather than submitting that question to the dispute resolution professional. Country-Wide did, however, submit that issue to the first arbitrator and engaged in discovery to further its claim on that issue. Having acceded to that procedure initially, we can perceive no basis upon which it should be allowed to take a different tack at this point.

We do not have occasion to address whether Ahmed does qualify as an eligible insured under his uncle's policy for that has not been the focus of the parties' arguments before us. We only go so far as to agree with the trial court that the effect of New York Insurance Law 5103(e) is to entitle plaintiff to proceed to PIP arbitration on its claims for reimbursement. In the course of that arbitration, Country-Wide may assert all of its substantive defenses other than subject-matter jurisdiction.

The orders under review are affirmed.

(continued)

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A-0650-07T2

July 18, 2008