ALLSTATE INSURANCE COMPANY v. SADDLEBROOK SURGICENTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2801-07T15049-06T4

ALLSTATE INSURANCE COMPANY,

Plaintiff-Respondent,

v.

SADDLEBROOK SURGICENTER,

Defendant-Appellant.

_____________________________________________

 

Argued November 17, 2008 - Decided

Before Judges Carchman and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6798-07.

Charles X. Gormally argued the cause for appellant (WolfBlock, L.L.P., attorneys; Mr. Gormally, of counsel and on the brief; Anthony M. Juliano and Sean A. Smith, on the brief).

Andrew L. Stern argued the cause for respondent (Sullivan and Graber, attorneys; Mr. Stern, of counsel and on the brief).

PER CURIAM

Defendant Saddlebrook Surgicenter appeals from the order of January 9, 2008, vacating the personal injury protection (PIP) arbitration award of July 6, 2007, and vacating the order of clarification/modification of September 11, 2007. We affirm.

On April 25, 2003, the Department of Health & Human Services (DOHHS) advised defendant that it was subject to licensure pursuant to N.J.S.A. 26:2H-1, that it must submit a license application, and that it must be licensed within ninety days of submission of the application. On February 3, 2005, the DOHHS advised defendant that it must become licensed by June 1, 2005. The DOHHS subsequently granted an extension to June 28, 2005.

The DOHHS visited defendant's facility on June 27, 2005, and found numerous deficiencies. As a result, on June 28, 2005, the DOHHS ordered defendant to cease and desist its operations.

Defendant rendered services to plaintiff's insured on June 28, 2005. Defendant sought to recover payment from plaintiff for those services. Plaintiff subsequently denied payment on the grounds that defendant performed services without a license, as required by N.J.S.A. 26:2H-12. Defendant filed a demand for PIP arbitration.

On July 6, 2007, the arbitrator awarded defendant $2,357.41 in medical expense benefits and $1,725 in attorney's fees and costs. The arbitrator reasoned that because the DOHHS was monitoring defendant's license application, defendant was eligible to recover PIP benefits even though it had no license at the time it rendered services to plaintiff's insured. The arbitrator subsequently denied plaintiff's request for a modification or clarification of the award.

Plaintiff filed a verified complaint, seeking to vacate the arbitration award. Judge Donohue vacated the arbitration award, finding that defendant was not entitled to payment of PIP benefits because it did not have a license. N.J.S.A. 26:2H-12. The judge also found that the arbitrator erroneously applied the law. N.J.S.A. 2A:23A-13f. See also Material Damage Adjustment Corp. v. Open MRI of Fairview, 352 N.J. Super. 216 (Law. Div. 2002); Liberty Mutual Ins. Co. v. Open MRI of Morris & Essex, 356 N.J. Super. 567 (Law Div. 2002).

Based upon our careful review of the record, we discern no public policy or other reason to disturb the judge's findings. We affirm substantially for the reasons set forth in the judge's written opinion, dated December 20, 2007.

Affirmed.

(continued)

(continued)

3

A-2801-07T1

December 4, 2008