JULIET DING v. USAA CASUALTY INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JULIET DING,

Plaintiff-Appellant,

v.

USAA CASUALTY INSURANCE COMPANY,

Defendant-Respondent.

_____________________________________

September 26, 2014

Submitted September 10, 2014 Decided

Before Judges Alvarez, Waugh, and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0280-12.

Grimes & Grimes, L.L.C., attorneys for appellant (Joseph P. Grimes, on the briefs).

Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for respondent (Barbara J. Davis, of counsel and on the brief).

PER CURIAM

Plaintiff Juliet Ding appeals the Law Division's March 22, 2013 order granting summary judgment to defendant USAA Casualty Insurance Company (USAA). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

Ding is a New Jersey resident who obtained private-passenger automobile insurance coverage through USAA. Her policy included single-limit uninsured and underinsured coverage (UIM) in the amount of $300,000. The policy also provided that either party could request the arbitration of claims under the policy, but that both parties had to consent to arbitration.

Ding was injured in a motor vehicle accident in Pennsylvania on June 17, 2006. In March 2008, she filed suit against the other driver in Pennsylvania. The attorneys handling the Pennsylvania litigation agreed to seek its resolution through alternative dispute resolution (ADR). In November 2009, Ding's Pennsylvania attorney notified USAA of the planned ADR proceeding and invited its participation. He wrote: "I thought you might want to participate in this hearing and resolve everything with one hearing." In December, USAA declined to participate.

Later in December, Ding's attorney again wrote to USAA, stating that it was the

last opportunity I will afford any representative of USAA to participate in the arbitration to make sure that your interests are protected. By participating, you would ensure that any Award incorporates any defenses that you might raise and you would not have to go through relitigating this once the initial arbitration has been completed.

The attorney concluded by asserting that he would assume that USAA's silence indicates "that you prefer to litigate again after we have completed any settlement per hearing." USAA again declined to participate.

Ding's attorney wrote a third time in January 2009, advising USAA that the damages were expected to be several hundred thousand dollars, that the other driver had only $100,000 in coverage, and that the driver's attorney had suggested that USAA "might find it advantageous to participate in the arbitration . . . to try to minimize the legal expenses for USAA and to have the whole matter resolved in one arbitration." He added that, absent USAA's participation in the Pennsylvania arbitration, Ding would seek arbitration against USAA in New Jersey.

The Pennsylvania arbitration resulted in a damages award of $200,000 to Ding and $1000 to her husband. Ding and the driver then settled the Pennsylvania litigation on the basis of the arbitration award and the driver's policy limit, and the action was dismissed.

Ding retained New Jersey counsel, who wrote to USAA in July 2011, requesting that USAA choose an arbitrator as contemplated by the policy. USAA declined to arbitrate, pointing to the fact that the policy required the consent of both parties.

In January 2012, Ding filed the present action. She sought (1) an order requiring USAA to appoint an arbitrator and (2) damages in the amount of $200,000, which was characterized as "the net balance due to [her] in excess of [the] $100,000" received from the driver. The complaint did not allege that USAA was bound by the arbitration award in Pennsylvania. That position would have been inconsistent with the claim for $200,000 in damages, inasmuch as the "net due" under the arbitration award would have been only $100,000 had it been binding on Ding and USAA.

Following discovery and non-binding arbitration in New Jersey, in which it was determined that Ding's injuries did not exceed the $100,000 coverage of the driver's policy, Ding moved for summary judgment. She argued that USAA was bound by the Pennsylvania arbitration award under principles enunciated in Zirger v. Gen. Accident Ins. Co., 144 N.J. 327 (1996).

The judge denied Ding's motion, finding that Zirger was not applicable. On the basis of that decision, the parties agreed to a voluntary dismissal of the complaint. This appeal followed.

II.

On appeal, Ding argues that the motion judge erred in refusing to apply the entire controversy doctrine and Zirger. USAA disagrees, arguing that neither is applicable to this case. Our review of the Law Division's decision in this case is plenary because "the legal conclusions undergirding the summary judgment motion itself" are reviewed "on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010).

The entire controversy doctrine is implemented by Rule 4:30A, which provides

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, except as otherwise provided by R. 4:64-5 (foreclosure actions) and R. 4:67-4(a) (leave required for counterclaims or cross-claims in summary actions).

In Alpha Beauty v. Winn-Dixie Stores, 425 N.J. Super. 94, 104 (App. Div. 2012), we explained the application of the doctrine as follows

The entire controversy doctrine compels at times, and encourages at others, the joinder of related claims so as "to eliminate delay, prevent harassment of a party and unnecessary clogging of the judicial system, avoid wasting the time and effort of the parties, and promote fundamental fairness." Cogdell v. Hospital Center at Orange, 116 N.J. 7, 15 (1989) (quoting Barres v. Holt, Rinehart and Winston, Inc., 74 N.J. 461, 465 (1977) (Schreiber, J., dissenting)). In light of these considerations, the doctrine imposes on a litigant the duty to present "all aspects of a controversy in one legal proceeding." The Malaker Corp. Stockholders Protective Comm. [v.] First Jersey Nat'l Bank, 163 N.J. Super. 463, 496 (App. Div. 1978), certif. denied, 79 N.J. 488 (1979). In determining what constitutes a single controversy, courts "look at the core set of facts that provides the link between distinct claims against the same or different parties." Hobart Bros. Co. v. Nat'l Union Fire Ins. Co., 354 N.J. Super. 229, 244 (App. Div. 2002).

The doctrine applies to "'matters actually litigated'" as well as matters "'that might have been thus litigated and determined.'" Vision Mortg. Corp., Inc. v. Patricia J. Chiapperini, Inc., 307 N.J. Super. 48, 52 (App. Div. 1998) (quoting Mori v. Hartz Mountain Dev. Corp., 193 N.J. Super. 47, 56 (App. Div. 1983)), aff'd, 156 N.J. 580 (1999). As an equitable doctrine, the entire controversy doctrine will not act as a bar when, considering the totality of the circumstances, its application would undermine "'its objectives, namely, the promotion of conclusive determinations, party fairness, and judicial economy and efficiency.'" K-Land Corp. No. 28 v. Landis Sewerage Auth., 173 N.J. 59, 70 (2002) (emphasis omitted) (quoting Pressler, Current N.J. Court Rules, comments 1 & 2 on R. 4:30A (2002)).

Similar concerns were involved in the Supreme Court's decision in Zirger, supra, 144 N.J. at 343, in which the Court invalidated the standard arbitration clause in the insurer's UIM endorsement to the extent that it mandated an arbitration proceeding that duplicated the litigation of the underlying tort claim. The plaintiff in Zirgersustained injuries in an accident with a tortfeasor who carried only $15,000 in coverage. Zirger's personal automobile policy with General Accident provided UIM coverage of $1,000,000. The policy required arbitration of disputed questions of liability and damages. Id.at 330-31.

On notice to General Accident, Zirger's counsel in the underlying action against the tortfeasor decided to try his claim for damages to a jury, rather than settling for the $15,000 policy limit. General Accident neither objected to nor sought to intervene in the damages trial. The jury awarded $400,000 in damages. General Accident refused to pay Zirger the amount of the jury award reduced by a $15,000 recovery from the tortfeasor's insurer and insisted on arbitration under the policy. We held that General Accident's consent to Zirger's pursuit of a jury verdict did not constitute a waiver of its right to arbitration. Zirger appealed. Id.at 331-32.

The Supreme Court reversed, invalidating the arbitration clause to the extent that it required an arbitration that was duplicative of the damages trial. Id.at 343. It noted

The advantages of arbitration evaporate when arbitration is used not as a substitute for litigation, but as a supplement to litigation. Used in that manner, a procedure designed to expedite dispute resolution is transformed into a mechanism for delaying and obstructing final resolution of disputes.

[Ibid.]

Ding's argument is that the principles underlying the entire controversy doctrine and Zirger preclude USAA from relitigating the issue of the quantum of her personal injury damages resulting from the automobile accident. Based upon the facts of this case, we disagree.

First, in inviting USAA to participate in the Pennsylvania ADR proceeding, Ding's Pennsylvania attorney never suggested that USAA would be bound by the result. Even more significantly, he specifically acknowledged that USAA's failure to participate would result in further proceedings in New Jersey.

Second, the Pennsylvania action, unlike the underlying New Jersey litigation involved in Zirger, was not tried to conclusion. Instead, Ding and the Pennsylvania driver settled the litigation on the basis of the results of the ADR process.1 USAA was invited to join the ADR, but refused to do so. The USAA policy provides that both parties must consent to arbitration. There was no requirement that USAA consent to the ADR proceeding in Pennsylvania.

Finally, Ding's complaint in New Jersey sought to recover more than the difference between the $100,000 paid by the driver's insurer and the $200,000 damages established by the ADR process. Instead, Ding initially sought to recover the full amount of her UIM coverage, minus the Pennsylvania recovery. In other words, Ding originally sought to do what she now criticizes USAA for doing, to re-litigate the amount of damages in New Jersey in the hope that she would obtain a larger damages award than the ADR award in Pennsylvania.

Our review of the record and the applicable law convinces us that Judge Paul Innes correctly determined that USAA was not bound by the ADR proceedings in Pennsylvania and that Zirger is not applicable in this case. In addition, having balanced the equities, we see no basis to apply the entire controversy doctrine in this case. Given the facts we have outlined above, particularly the several representations by Pennsylvania counsel that USAA would be able to litigate the UIM claim in New Jersey if it did not join the Pennsylvania ADR, it would be extremely inequitable to do so.

Affirmed.

1 The parties disagree as to whether the Pennsylvania arbitration was "binding." Ding's Pennsylvania attorney makes that assertion in his certification, but without any documentary support. The letters to USAA from the Pennsylvania attorney suggest that the two attorneys in Pennsylvania voluntarily agreed to resolve the dispute through arbitration. It may be that those two parties agreed to be bound by the result. Nevertheless, USAA never agreed to the arbitration, which it had the right to refuse under the policy. We need not determine whether the result here would be different if the Pennsylvania action had been tried, as had the underlying action in Zirger. Nor need we reach the issue of whether Zirger has "extraterritorial" application, as argued by Ding.