BRENDA PASONO v. LIBERTY MUTUAL INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

BRENDA PASONO,

Plaintiff-Appellant,

v.

LIBERTY MUTUAL INSURANCE

COMPANY,

Defendant-Respondent.

___________________________

February 28, 2014

Submitted February 5, 2014 Decided

Before Judges Simonelli, Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6008-12.

Levinson Axelrod, P.A., attorneys for appellant (Matthew P. Pietrowski, on the brief).

Viscomi & Lyons, attorneys for respondent (William L. Bracaglia, on the brief).

PER CURIAM

Plaintiff Brenda Pasono appeals from the January 11, 2013 Law Division order, which dismissed her complaint without prejudice pursuant to the doctrine of forum non conveniens. We reverse.

On July 28, 2009, plaintiff, then a New York resident, suffered serious injuries as the result of a motor vehicle accident in New Jersey. She had personal injury protection (PIP) coverage under a New York insurance policy issued by defendant Liberty Mutual Insurance Company (Liberty Mutual).

Plaintiff received medical treatment in New Jersy. Liberty Mutual paid some, but not all, of her medical bills pursuant to the New Jersey Medical Fee Schedule. Plaintiff submitted a PIP claim for the unpaid medical bills. Liberty Mutual issued a denial of claim, which gave plaintiff alone the right to further pursue the claim through one of three options: (1) requesting dispute resolution with the New York State Insurance Department; (2) arbitrating the matter in New York; or (3) filing a lawsuit. Unlike the first two options, the third option was not restricted to New York. In addition, both the policy1 and New York law2 give plaintiff alone the right to demand arbitration.

Plaintiff filed a demand for arbitration in New Jersey. Liberty Mutual requested dismissal, arguing the arbitrator lacked subject matter jurisdiction because the policy was issued in New York and required arbitration there. The arbitrator found he lacked subject matter jurisdiction and denied an award. The arbitrator specified he made no determination on the merits of plaintiff's claim.

Plaintiff moved to New Jersey and filed a complaint in our Superior Court. Liberty Mutual filed a motion to dismiss in lieu of filing an answer, arguing the matter must be arbitrated in New York. The motion judge found that plaintiff alone had the right compel arbitration in New York, and New Jersey lacked jurisdiction because plaintiff had to "sue in New York" if she did not chose to arbitrate there. The judge ultimately determined, sua sponte, that even if New Jersey had jurisdiction, the matter must be dismissed pursuant to the doctrine of forum non conveniens because it involved the interpretation of New York's PIP statute.

The judge was correct that plaintiff alone had the right to choose arbitration in New York, but incorrect that she must sue in New York if she chose not to arbitrate. The policy contains no such restriction, and the judge cited no authority supporting that determination. Because plaintiff never chose arbitration in New York, she had the right to file a lawsuit in the jurisdiction of her choice. In addition, the judge erred in sua sponte dismissing the complaint based on the doctrine of forum non conveniens without affording plaintiff an opportunity to address that issue.

That having been said, we conclude that New Jersey has jurisdiction over this matter because plaintiff resides here, the accident and all of her medical treatment occurred here, and Liberty Mutual has offices in New Jersey and is subject to process here. See Blakey v. Cont'l Airlines, Inc., 164 N.J. 38, 67-68 (2000) (setting forth New Jersey's personal jurisdiction test based on a minimum contacts analysis); see also Wilson v. Paradise Vill. Beach Resort & Spa, 395 N.J. Super. 520, 528 (App. Div. 2007) (discussing requirements for obtainment of general in personam jurisdiction in New Jersey).

We also conclude the judge erred in dismissing the complaint based on the doctrine of forum non conveniens. The doctrine of forum non conveniens "is equitable in nature and, therefore, decisions concerning its application are ordinarily left to the sound discretion of the trial court." Kurzke v. Nissan Motor Corp. in U.S.A., 164 N.J. 159, 165 (2000) (citations omitted). An "appellate court should not substitute its judgment for that of the trial judge unless there is a showing of clear abuse of that discretion." Ibid. When a court granting a forum non conveniens dismissal "misconceives the applicable law, however, de novo review is required because the [trial court's] exercise of the legal discretion lacks a foundation and becomes an arbitrary act[.]" Paradise Enter.'s Ltd. v. Sapir, 356 N.J. Super. 96, 102 (App. Div. 2002) (alteration in original) (citations and internal quotation marks omitted), certif. denied, 175 N.J. 549 (2003) (internal quotation marks and citation omitted).

"Ordinarily, a plaintiff's choice of forum will be honored by a court that has jurisdiction over a case. Indeed, there is a strong presumption in favor of retaining jurisdiction where the plaintiff is a resident who has chosen his [or her] home forum." Yousef v. Gen. Dynamics Corp., 205 N.J. 543, 557 (2011) (alteration in original) (citations and internal quotation marks omitted). Indeed,

a plaintiff's choice of forum is not dispositive, because ultimately it is for the court to decide whether the ends of justice will be furthered by trying a case in one forum or another. Nevertheless, a court should not dismiss a case on the ground of forum nonconveniens unless the choice of forum is 'demonstrably inappropriate.'"

[Id. at 557 (citations and internal quotations marks omitted).]

Moreover, "plaintiff's choice may not be defeated upon a mere balance of conveniences. Consequently, a plaintiff's choice of forum ordinarily will not be disturbed except upon a clear showing of real hardship or some other compelling reason." D'Agostino v. Johnson & Johnson, Inc., 115 N.J. 491, 494 (1989) (citations and internal quotation marks omitted).

In exercising its discretion in granting dismissal for forum non conveniens, the court is guided by: (1) preferential consideration to plaintiff's chosen forum; (2) the adequacy of the chosen forum, and that defendant be "amenable to process" there; and (3) the private- and public-interest factors set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 67 S. Ct. 839, 843 91 L. Ed. 1055, 1062-63 (1947). Yousef, supra, 205 N.J. at 557-58. The private-interest factors are:

[1] the relative ease of access to sources of proof; [2] the availability of compulsory process; [3] the cost of obtaining attendance of witnesses; [4] the ability to view an accident scene, if that would be beneficial to the factfinder; [5] the enforceability of the judgment; and [6] all other practical problems that make trial of a case easy, expeditious and inexpensive.

[Id. at 558 (citations and internal quotation marks omitted).]

The public-interest factors are:

[1] consideration of trial delays that may occur because of backlogs in a jurisdiction; [2] whether jurors should be compelled to hear a case that has no or little relationship to their community; [3] the benefit to a community of having localized controversies decided at home; and [4] whether the law governing the case will be the law of the forum where the case is tried.

[Ibid. (citations and internal quotation marks omitted).]

A court should not dismiss based on forum non conveniens unless the choice of forum is "'demonstrably inappropriate.'" Id. at 557 (citing Kurzke, supra, 164 N.J. at 171-72). In addition, "[a]s a general rule, a motion for dismissal due to forum non conveniens should not be heard unless the movant has made a good faith effort to obtain discovery and can provide the court with a record verifying that discovery is unreasonably inadequate for litigating in the forum chosen by the plaintiff." Kurzke, supra, 164 N.J. at 168.

Here, the judge did not find, nor does the record establish, any of the Gulf Oil factors or that plaintiff's choice of forum was "demonstrably inappropriate." See Chubb Custom Ins. Co. v. Prudential Ins. Co. of Am., 394 N.J. Super. 71, 81-82 (2007) (reversing trial court's forum non conveniens dismissal as abuse of discretion because balance of factors did not favor defendant, discovery had not begun, and New Jersey-resident plaintiffs were entitled to deference in choice of forum), aff d, 195 N.J. 231 (2008). To the contrary, the factors weigh in favor of litigating this case in New Jersey: plaintiff resides and chose to litigate here; the proofs, witnesses and accident scene are here; Liberty Mutual is subject to compulsory process here; the judgment can be enforced here; and a trial here would be easy, expeditious and inexpensive. Yousef, supra, 205 N.J. at 558. The only potential Gulf Oil factor in Liberty Mutual's favor is public-interest factor four -- that New York law will govern this case. However, a New Jersey court can apply foreign law in a PIP suit. State Farm Mut. Auto. Ins. Co. v. Estate of Simmons, 84 N.J. 28, 40-44 (1980). There is no evidence that the relevant New York law is repugnant to New Jersey's public policy. Sapir, supra, 356 N.J. Super. at 108.

1 With respect to arbitration, the policy provides: "In the event any person making a claim for first-party benefits and [Liberty Mutual] do not agree regarding any matter relating to the claim, such person shall have the option of submitting such disagreement to arbitration pursuant to procedures promulgated or approved by the [New York] Superintendent of Insurance." (Emphasis added).

2 N.Y. Ins. Law 5106(b) (Consol. 2013) provides: "Every insurer shall provide a claimant with the option of submitting any dispute involving the insurer's liability . . . to arbitration pursuant to simplified procedures to be promulgated or approved by the [New York Superintendent of Insurance."] (Emphasis added).