07-2-3754 Cranio Assoc. v. State Farm Indem. Co., N.J. Super App. Div. (per curiam) (3 pp.) Plaintiff medical provider appealed the dismissal of its complaint for frivolous litigation sanctions. Plaintiff asserted that it was underpaid for medical treatment provide to the insured and pursued a PIP arbitration for additional payments. The arbitrator found that the limits of the patient’s PIP coverage had been exhausted and that he could not consider the claim for additional funds. Plaintiff asserted it was entitled to sanctions because defendant waited until the day before the scheduled arbitration to advise plaintiff and the arbitrator that the limits of the insured’s PIP coverage had been exhausted. The trial judge found no legal basis to award sanctions. Plaintiff contended that defendant’s knowing defense of a PIP arbitration while the policy was exhausted qualified as a frivolous defense for the purpose of harassment or delay. The court disagreed and found that the trial judge properly exercised his discretion.

07-3-3784 E. Nursing Serv. I, Inc. v. Amedisys, Inc. N.J. Super. (Caposela, A.J.S.C.) (18 pp.) Plaintiffs sought to vacate the dismissal of their action with prejudice after they located missing documents. Defendants filed a frivolous litigation motion seeking dismissal of plaintiff’s complaint alleging wrongful violation of restrictive covenants, disclosure of propriety information, unfair competition and tortious interference with contractual relations. Plaintiff’s action was based on a restrictive covenant allegedly signed by former employee but plaintiff produced no document signed by the employee despite numerous discovery demands. Plaintiff did later attached the previously misplaced document to its motion to vacate the order dismissing its complaint. The court found that the deficiency in producing the restrictive covenant was not a garden-variety R. 4:23 discovery issue. Plaintiff admitted lacking the single memorializing document that served as the basis for its claim. The rules gave parties 28 days to cure fatal deficiencies in the pleadings but plaintiff failed to locate the document for well over two years beyond the filing of the complaint. Plaintiff additionally failed to reply in a responsive manner to numerous discovery requests over a period of years and remained noncompliant with its discovery obligations. The court also found that a partial attorney fee sanction was necessary as court orders had not deterred plaintiff form ignoring its discovery obligations. [Filed Jul 12, 2017]

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