Kimba Medical Supply v. Allstate Insurance Company of New Jersey, A-1443-11T2; Appellate Division; opinion by Sabatino, J.A.D.; decided and approved for publication July 5, 2013. Before Judges Parrillo, Sabatino and Fasciale. On appeal from the Law Division, Camden County, L-4482-11, and Chancery Division, Ocean County, C-138-11. [Sat below: Judge Orlando in Camden and Judge Peterson in Ocean.] DDS No. 23-2-0535 [45 pp.]

These two companion appeals arise out of cases involving contested automobile personal injury protection (PIP) benefits and raise a common jurisdictional question. The question concerns whether the trial court, under the New Jersey Alternative Procedure for Dispute Resolution Act (APDRA) and associated PIP regulations cross-referencing that statute, has the authority to remand unresolved factual questions to a dispute resolution professional (DRP) after that court has vacated or modified a DRP's decision.

The organization that contractually provides the state with DRPs who hear PIP matters, Forthright, insists that the trial court has no such power to remand any PIP cases. Consequently, Forthright does not want to proceed with the present cases a second time, despite remand orders from the trial court directing it to do so.

Held: Exercising its supervisory appellate function, the appellate panel concludes that §§ 13 and 14 of the APDRA must be construed to authorize remands to a dispute resolution professional in certain limited situations where a PIP arbitration award has been judicially vacated or modified.

The PIP statute declares that decisions of a DRP shall be binding. However, both the commissioner's own regulations and case law allow for a limited right of review of the DRP's rulings in the Superior Court. When alternative dispute resolution is applied to PIP disputes, it must be conducted pursuant to the APDRA.

The APDRA's mechanism for the limited review of decisions made by neutral DRPs (§ 13), which the commissioner has adopted for PIP arbitrations, is at the heart of the present appeals. Assuming that the APDRA's enumerated grounds for relief are not met, the decision of the DRP is final. To expedite the achievement of finality, the statute further proscribes further appeal or review after the trial court's review of the decision. However, appellate courts retain the discretion to exercise supervisory authority over such trial court rulings for reasons of public policy.

The core question presented here is whether, within the scheme of alternative dispute resolution for PIP matters patterned after the APDRA, a trial court possesses the inherent authority to refer certain PIP arbitration cases back to the DRP or alternative dispute resolution forum, in instances where additional fact-finding or other decision-making on unresolved material issues is necessary.

Forthright maintains that the trial court has no authority to compel it to reopen a PIP arbitration and make additional findings of fact. Forthright argues that the trial court instead must conduct a hearing and make those findings itself.

The appellate panel determines to exercise its prerogative of supervisory appellate review in these two cases for several reasons. First, the fundamental question of the trial court's authority to remand open questions to DRPs in PIP matters is a recurring issue that has yet to be resolved in a published opinion. There is therefore a need for procedural clarity. Second, the repeat players in the PIP system — claimants, insurers, DRPs, lawyers, and trial judges — all can benefit from precedential guidance as to whether, and if so, when, a PIP matter can be remanded from the trial court to a DRP. Third, the statutory scheme is somewhat vague and complicated with respect to the authority for remands.

Consequently, the appellate panel invokes the limited public policy exception and considers the substance of the jurisdictional issues raised on appeal.

The grounds for judicially setting aside an award generated in the dispute resolution process are plainly restrictive. The underlying problem is that in some instances — because of the limited breadth of an umpire's decision — an umpire might not have determined what ends up being the applicable facts that will enable a final resolution of the dispute on its merits. Section 13 has a "gap," by failing to set forth an explicit procedure to deal with situations, as here, where a DRP has not developed a suitable record on which a trial court can make an appropriate ruling.

Subsection 13(b) addresses the discrete context of a judge considering an application for vacation, modification or correction of an award. In that setting, the judge may need to conduct an evidential hearing in the trial court in order to decide whether to vacate or modify an umpire's award. By comparison, § 14 is triggered at a later point in the process, arising after a judicial determination already has been made to vacate an award. The language in § 14 is discretionary, affording the trial court the option of rehearing the case itself or sending it back to the umpire for a rehearing and determination of all or any of the issues.

In the discrete circumstances where open issues remain when an umpire's award is vacated and the factual record created by the umpire is incomplete, the appellate panel construes the statutory scheme to authorize the trial court, if it so elects, to remand the matter to the umpire for fact-finding.

The appellate panel affirms the trial judges' respective decisions to remand each of these two PIP cases to Forthright in the circumstances presented, so that open issues can be decided in that arbitral forum on an appropriate record. In addition, the panel affirms the trial judge's separate ruling determining the PIP coverage limits that apply to the insured in that particular case.

For National Arbitration Forum, Forthright — Arthur J. Timins (Shiriak & Timins). For Kimba Medical Supply — Sean T. Hagan. For Allstate — David J. Klinger (Gutterman, Markowitz & Klinger; Klinger and Frank W. Farrell on the brief). For Roy J. Pickell — Deborah J. Davison (Law Offices of Riaz A. Mian). For Travelers — Michael R. Eatroff (Methfessel & Werbel).