RAFAELAA. GUICHARDO v. NEW JERSEY PROPERTY-LIABILITY INSURANCE GUARANTY ASSOCIATION NJPLIGA
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4410-15T3
RAFAELA A. GUICHARDO,
Plaintiff-Appellant,
v.
NEW JERSEY PROPERTY-LIABILITY
INSURANCE GUARANTY ASSOCIATION
(NJPLIGA),
Defendant-Respondent.
______________________________________
Argued January 9, 2018 – Decided January 26, 2018
Before Judges Yannotti and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Morris County, Docket No.
L-3099-13.
Kathryn Kyle Forman argued the cause for
appellant (Piro, Zinna, Cifelli, Paris &
Genitempo, LLC, attorneys; Alan Genitempo, of
counsel; Kathryn Kyle Forman, on the brief).
Cynthia J. Borrelli argued the cause for
respondent (Bressler, Amery & Ross, PC,
attorneys; Cynthia J. Borrelli and Michael J.
Morris, on the brief).
PER CURIAM
Plaintiff Rafaela A. Guichardo appeals from an order entered
by the Law Division on April 26, 2016, which denied her motion to
vacate an arbitration award that found plaintiff was not entitled
to attorney's fees and costs. We affirm and hold defendant New
Jersey Property-Liability Insurance Guaranty Association (PLIGA)
is not subject to awards of counsel fees pursuant to Rule 4:42-
9(a)(6).
The following facts are taken from the record. On October
19, 1987, plaintiff was in an automobile accident and suffered
catastrophic injuries. Plaintiff was insured through a policy
underwritten by the New Jersey Automobile Full Insurance
Underwriting Association (JUA). At the time, New Jersey's
statutory "No-Fault" law provided that a private passenger
automobile insurer would be liable for the payment of all of an
injured insured claimant's reasonable and necessary medical
expenses resulting from a covered automobile accident. Therefore,
JUA became liable to pay all of plaintiff's medical expenses from
the October 19, 1987 accident.
In 1993, plaintiff successfully filed suit against JUA to
compel payment of rents, home modification costs, and home health
aide service costs incurred as a result of plaintiff's injuries
stemming from the accident. In 2003, plaintiff again filed suit
against JUA and the Unsatisfied Claim and Judgment Fund (UCJF).
2 A-4410-15T3
As a result of that suit, the JUA and UCJF were ordered to pay
physical medicine and rehabilitation costs in excess of the then-
current maximum allowable fee.
PLIGA became JUA's successor-in-interest and statutory
administrator, and pursuant to
N.J.S.A. 17:30A-2 fulfills JUA's
statutory obligations. In November 2013, plaintiff filed suit
against defendant seeking payment and/or reimbursement for: 1)
pharmacy expenses; 2) installation of an elevator or stair lift
in her home; 3) dental implants; 4) home health aide service; 5)
trigger point injection therapy; and 6) physician's bills. On
February 20, 2014, the motion judge issued an order compelling
PLIGA to pay all of plaintiff's claims.
Defendant moved for reconsideration, asserting the order
compelled PLIGA to pay medical providers at rates that were in
excess of the New Jersey Personal Injury Protection (PIP) Medical
Fee Schedules. The motion judge granted defendant's motion, and
compelled arbitration of plaintiff's claims pursuant to the
Alternative Procedure for Dispute Resolution Act (APDRA),
N.J.S.A.
2A:23A-1 to -30. The judge held plaintiff's medical expense claims
must be paid in accordance with the applicable fee schedules
promulgated by New Jersey Division of Banking and Insurance
(NJDOBI) and mandated by N.J.A.C. 11:3-29.1 to -29.6.
3 A-4410-15T3
Before arbitration, the parties settled all of the claims,
except for payment of attorney's fees and costs. Plaintiff
submitted her claim for attorney's fees and costs to the assigned
dispute resolution professional (DRP). Plaintiff sought
$44,419.95 in fees and $3,521.05 in costs. Defendant opposed the
request for fees. The DRP issued an award in favor of defendant,
denying plaintiff's claim for fees in its entirety.
Plaintiff filed an arbitral appeal in accordance with Rule
25 of the New Jersey No-Fault PIP Arbitration Rules, which was
denied. Plaintiff then filed a motion in the Law Division to
vacate the arbitration award and the order compelling arbitration,
and to reinstate her claims. On April 26, 2016, the motion judge
denied plaintiff's motion.
The motion judge found plaintiff's motion was untimely
because plaintiff filed it over a year and a half after entry of
the order compelling arbitration. The court also found no grounds
under the APDRA to vacate the arbitration determination.
Specifically, the motion judge found that the DRP did not
erroneously apply the law to warrant vacation of the arbitration
award pursuant to
N.J.S.A. 2A:23A-13(c)(5) because plaintiff had
settled her claims with PLIGA and thus was not a "successful
claimant" entitled to counsel fees under to Rule 4:42-9(a)(6).
This appeal followed.
4 A-4410-15T3
On appeal, plaintiff argues the motion judge erred in
affirming the DRP's decision because the settlement of her claims
demonstrate she was a successful claimant entitled to fees pursuant
to Rule 4:42-9(a)(6). Plaintiff also argues PLIGA is not
statutorily barred from paying counsel fees and costs. Plaintiff
asserts the law-of-the-case doctrine applies, and that the prior
award of counsel fees to her in the actions against the JUA mandate
PLIGA pay her counsel fees.
N.J.S.A. 2A:23A-18(b) provides that once a trial judge
reviews an arbitration award under the APDRA "[t]here shall be no
further appeal or review . . . ." APDRA therefore precludes
further review of decisions "confirming, modifying[,] or
correcting an award."
N.J.S.A. 2A:23A-18(b). However, the Supreme
Court has stated, "when parties proceed under the APDRA, there may
be other limited circumstances where public policy would require
appellate court review." Mt. Hope Dev. Assocs. v. Mt. Hope
Waterpower Project, L.P.,
154 N.J. 141, 152 (1998). Such limited
circumstances include the review of attorney fee awards. See
Allstate Ins. Co. v. Sabato,
380 N.J. Super. 463, 472 (App. Div.
2005).
Generally, Rule 4:42-9(a)(6) permits counsel fee awards "[i]n
an action upon a liability or indemnity policy of insurance, in
favor of a successful claimant." Thus, "[t]he purport of [Rule
5 A-4410-15T3
4:42-9(a)(6)] is to allow a litigant to recover fees where he or
she has obtained a favorable adjudication on the merits on a
coverage question as a result of the expenditure of such fees."
Transamerica Ins. Co. v. Nat'l Roofing, Inc.,
108 N.J. 59, 63
(1987).
Here, plaintiff argues that she is entitled to an award of
fees under Rule 4:42-9(a)(6) because she is allegedly a "successful
claimant" on a liability or indemnity policy of insurance.
Defendant argues, however, that it did not dispute its obligation
to pay for plaintiff's medical expenses, and it prevailed on its
contention that the PIP medical fee schedules applied and plaintiff
had to present documentation to support her claims. We need not
determine whether plaintiff was a "successful claimant" under the
rule because plaintiff's claim against PLIGA is statutorily
barred. PLIGA is only permitted to pay "covered claims" and
N.J.S.A. 17:30A-5(d) expressly provides that the term "covered
claim" does not include counsel fees for prosecuting an action
against the Association, and counsel fees and other claim expenses
incurred prior to the date of insolvency.
The Supreme Court has explained:
The Legislature enacted the [PLIGA] Act to
"provide a mechanism for the payment of
covered claims under certain insurance
policies, to avoid excessive delay in payment,
[and] to minimize financial loss to claimants
6 A-4410-15T3
or policyholders because of the insolvency of
an insurer . . . ."
N.J.S.A. 17:30A-
2[(a)]. . . . The Legislature also created
"a private, nonprofit, unincorporated"
Association to implement the Act, N.J.S.A.
17:30A-6, and further required that "[a]ll
insurers defined as member insurers . . .
shall be and remain members of the association
as a condition of their authority to transact
insurance in this State." Ibid.
The Association is "obligated to the extent
of the covered claims against an insolvent
insurer . . . ."
N.J.S.A. 17:30A-8a(1). . . .
The Act defines "covered claim" to mean "an
unpaid claim, including one of unearned
premiums, which arises out of and is within
the coverage, and not in excess of the
applicable limits of an insurance policy to
which this act applies, issued by an insurer,
if such insurer becomes an insolvent insurer
. . . ." N.J.S.A. 17:30A-5[(d)].
[Thomsen v. Mercer-Charles,
187 N.J. 197, 204-
05 (2006) (alterations in original).]
In ARCNET Architects, Inc. v. New Jersey Property-Liability
Insurance Guaranty Association,
377 N.J. Super. 102, 104 (App.
Div. 2005), we noted that:
In 2004, the Legislature amended the New
Jersey Property-Liability Insurance Guaranty
Association Act (Act),
N.J.S.A. 17:30A-1 to
-20, to exclude specifically from the
definition of covered claims "counsel fees and
other claim expenses incurred prior to the
date of [an insurance company's] insolvency."
L. 2004, c. 175, § 2. This amendment, approved
on December 22, 2004, also provided that it
"shall take effect immediately and shall apply
to covered claims resulting from insolvencies
occurring on or after that date." Id. at §
9. The amendment thus settled, at least
7 A-4410-15T3
prospectively, an ongoing dispute as to
whether . . . [PLIGA] should pay counsel fees
and claim expenses incurred by an insurer
before its insolvency.
We held the exclusion of counsel fee awards from the
definition of covered claims also included pre-insolvency counsel
fees and claim expenses incurred before the amendment's effective
date. Id. at 106. We reasoned:
PLIGA's responsibility to pay claims under an
insolvent insurer's policy is limited to the
payment of "covered claims." It is not "a
panacea for all problems caused by insurance
company insolvencies." It was not designed
"as a form of reinsurance for every insurer
who becomes insolvent." The Act "requires
[PLIGA] to stand in the shoes of its insolvent
member insurance companies only in proceedings
involving 'covered claims.'"
[Ibid. (citations omitted) (alterations in
original).]
We concluded the counsel fees incurred by plaintiff's counsel
in ARCNET were not payable by PLIGA because:
The Act's primary purpose is to "minimize
financial loss to claimants or policyholders
because of the insolvency of an insurer."
N.J.S.A. 17:30A-2[(a)]. . . . "[O]nly the
claims of insureds and innocent victims of
incidents for which insurance coverage was
purchased are entitled to recover against the
statutorily created fund. Those whose claims
arise from separate contracts or dealings with
an insolvent insurer are merely creditors
whose redress lies elsewhere."
[Id. at 109 (citations omitted) (alterations
in original).]
8 A-4410-15T3
In New Jersey Guaranty Association on Behalf of Midland
Insurance Company v. Ciani,
242 N.J. Super. 164 (App. Div. 1990),
we held
N.J.S.A. 17:30A-5(d) barred counsel fees incurred by an
insured for prosecuting its claim for coverage against PLIGA. Id.
at 169. We concluded
[t]he authority granted by [Rule] 4:42-9(a)(6)
to award counsel fees in policy coverage suits
is a discretionary authority, submitted to the
court's sound judgment. We hold that, in view
of the important legislative purpose of
limiting [PLIGA's] liabilities as part of the
statutory scheme for relief from insurer
insolvency, it is a mistaken exercise of
judgment for a court to award counsel fees in
policy coverage suits to be paid by [PLIGA].
[Id. at 169.]
Plaintiff argues "[a]lthough the statutory definition of
covered claims excludes 'counsel fees,' the statute contains no
provision to bar or prohibit [PLIGA] from paying a claimant's
counsel fees when a claimant is entitled to fees under [Rule]
4:42-9(a)(6)." We disagree.
The "paramount [judicial] goal when
interpreting a statute" is to determine and
fulfill the legislative intent. DiProspero
v. Penn,
183 N.J. 477, 492 (2005). To achieve
that goal, we first look to the statutory
language, State v. Pena,
178 N.J. 297, 307
(2004), and interpret the language in
accordance with its plain meaning if it is
"'clear and unambiguous on its face and admits
of only one interpretation.'" State v.
Thomas,
166 N.J. 560, 567 (2001) (quoting
State v. Butler,
89 N.J. 220, 226 (1982)). If
9 A-4410-15T3
the statute's language "is susceptible to
different interpretations, the court
considers extrinsic factors, such as the
statute's purpose, legislative history, and
statutory context to ascertain the
legislature's intent.'" Aponte-Correa v.
Allstate Ins. Co.,
162 N.J. 318, 323 (2000)
(quoting Twp. of Pennsauken v. Schad,
160 N.J.
156, 170 (1999)); see also DiProspero, . . .
183 N.J. at 492-93; State v. Pena, . . . 178
N.J. at 307-08.
[Thomsen, 187 N.J. at 206 (alteration in
original).]
The legislative intent of the statute governing PLIGA is to
insulate it from counsel fees in fulfilling its role administering
claims against insolvent insurers. By enacting
N.J.S.A. 17:30A-
5(d) the Legislature expressly excluded PLIGA from liability for
counsel fees for the prosecution of suits for claims against it,
assessments or charges for failure of an insolvent insurer (and
presumably PLIGA as successor) to have expeditiously settled
claims, and counsel fees and expenses incurred prior to the date
of insolvency. Therefore, plaintiff's claim for attorney's fees
and costs is statutorily barred.
Lastly, plaintiff argues the law-of-the-case doctrine applies
and mandates an award of counsel fees. She notes that orders
entered in October 1994 and January 2003, against Hanover AMGRO,
Inc., the JUA and the UCJF required those defendants to reimburse
her for counsel fees and costs in obtaining those orders. She
10 A-4410-15T3
also notes that the trial court's order of May 17, 2014 awarded
plaintiff counsel fees and costs for this litigation. However,
the court granted reconsideration and entered an order dated July
29, 2014, which stated that if plaintiff successfully obtains an
award in PIP arbitration, the award should include reasonable
attorney's fees and costs associated with this litigation.
Therefore, plaintiff argues the prior orders should be treated as
"the law of the case and [we] should thereby find that [plaintiff]
is entitled to the counsel fees and costs . . . ."
"The [law-of-the-case] doctrine is not an absolute rule as
'the court is never irrevocably bound by its prior interlocutory
ruling[.]'" Jacoby v. Jacoby,
427 N.J. Super. 109, 117 (App. Div.
2012) (alteration in original) (quoting Daniel v. N.J. Dep't of
Transp.,
239 N.J. Super. 563, 581 (App. Div. 1998). The orders
entered in 1994 and 2003 against Hanover AMGRO, the JUA, and UCJF
were entered in a separate action, and PLIGA was not a party to
that case. Moreover, the court's orders of May 17, 2014, and July
29, 2014, were interlocutory and subject to further review and
consideration by the court.
We do not interpret the motion judge's order compelling
arbitration as a ruling that plaintiff was entitled to attorney's
fees against PLIGA. Even if this were the law-of-the-case, the
order and the two preceding it are not binding upon us.
11 A-4410-15T3
Affirmed.
12 A-4410-15T3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
