ATLANTIC AMBULANCE CORPORATION VS. JOHN G. CULLUMÂ ATLANTIC AMBULANCE CORPORATION VS. HALA HITTI(L-264-12 AND L-2097-12, MORRIS COUNTY AND STATEWIDE)(RECORD IMPOUNDED) , 451 N.J. Super. 247 ( 2017 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1622-16T2
ATLANTIC AMBULANCE CORPORATION,
Plaintiff-Respondent,
v. APPROVED FOR PUBLICATION
JOHN G. CULLUM and MARY CLARE June 29, 2017
CULLUM, APPELLATE DIVISION
Defendants-Appellants.
___________________________
ATLANTIC AMBULANCE CORPORATION,
Plaintiff-Respondent,
v.
HALA HITTI and ANTOINE HITTI,
Defendants-Appellants.
_____________________________________
Argued May 23, 2017 - Decided June 29, 2017
Before Judges Reisner, Koblitz and Mayer.
On appeal from an interlocutory order of the
Superior Court of New Jersey, Law Division,
Morris County, Docket Nos. L-264-12 and
L-2097-12.
Robert W. Mauriello, Jr., argued the cause for
appellants (Graham Curtin, P.A., attorneys;
Kelley J. Hastie and Mr. Mauriello, on the
briefs).
James W. Brown (Skadden, Arps, Slate, Meagher
& Flom) of the New York bar, admitted pro hac
vice, argued the cause for respondent (Schenck
Price Smith & King, LLP and Mr. Brown,
attorneys; Lauren E. Aguiar (Skadden, Arps,
Slate, Meagher & Flom) of the New York bar,
admitted pro hac vice, Mr. Brown and Peter A.
Marra, on the brief).
The opinion of the court was delivered by
MAYER, J.S.C. (temporarily assigned)
Appellants John G. Cullum and Mary Clare Cullum (Cullum) and
Hala Hitti and Antoine Hitti (Hitti)1 were granted leave to appeal
denial of their motion for class certification. We affirm in part
and remand in part.
In reaching this decision, we hold that ambulance service
providers are not subject to consumer fraud claims under the
"learned professional" exception because ambulance services are
comprehensively regulated by a State agency. We also hold that
the reasonableness of rates charged for ambulance services is a
policy matter to be addressed by the Legislature and agencies
within the Executive branch of government. We further determine
that consumers are not required to pay a defendant's bill for
allegedly overpriced services, in order to establish an
ascertainable loss under the Consumer Fraud Act.
1
Because Hitti and Cullum were defendants and counterclaimants,
for simplicity we refer to them as "appellants" although we usually
refer to parties by their status in the trial court.
2 A-1622-16T2
We briefly recite the relevant procedural history. Atlantic
Ambulance Corp. (Atlantic) filed complaints in the Special Civil
Part against Cullum and Hitti seeking payment for ambulance
services. Cullum and Hitti filed answers and counterclaims,
alleging that Atlantic overbilled for ambulance services in
violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 (CFA).
The counterclaims also asserted causes of action against Atlantic
for negligence, common law fraud, breach of contract and unjust
enrichment.2 Appellants also sought class certification on behalf
of themselves as class representatives and on behalf of all
proposed class members who were overcharged for ambulance services
during a six-year period. The Cullum and Hitti matters were
transferred from the Special Civil Part to the Law Division and
were consolidated. After five years of discovery, appellants
filed a motion seeking class certification.
The facts giving rise to appellants' overbilling claims
against Atlantic are undisputed. Cullum and Hitti initially
alleged that they did not receive services from Atlantic and,
therefore, the fees charged by Atlantic for services were improper
and/or excessive. However, during oral argument on the class
2
On appeal, appellants are pursuing their CFA and breach of
"quasi-contract" claims only.
3 A-1622-16T2
certification motion, counsel clarified that Cullum and Hitti
received services, but claimed the bills they received were
unconscionably high. The dispute focused on Atlantic's provision
of ALS services, which are divided into three categories: ALS
Assessment, ALS-1 and ALS-2. Different services are provided to
patients for each ALS category, ranging from a basic physical
examination and electrocardiogram readings to more complex medical
treatments.
The amount billed to patients receiving ambulance services
depends on the category of the support rendered. For ALS services,
Atlantic charged the following: $1500 for an ALS Assessment, plus
a mileage fee; $1750 for ALS-1 services, plus a mileage fee; and
$2300 for ALS-2 services, plus a mileage fee. Appellants
challenged Atlantic's formulation of the billing rates for ALS
services. They claimed that Atlantic's fees for ALS services
should be itemized, specifying the amount charged for each service,
rather than bundled. Appellants alleged that Atlantic's uniform
flat rates were excessive and disproportionate to the
reimbursement rates assessed by insurance providers for similar
services.
In Cullum's case, he passed out at his gym and Atlantic was
called to provide ambulance services. Other than blood pressure
monitoring, Cullum denied receiving any medical services from
4 A-1622-16T2
Atlantic. Cullum's bill from Atlantic was $1750, plus a mileage
fee for transporting him to the hospital. Cullum's health
insurance provider paid a portion of Atlantic's bill, and he was
responsible for payment of the outstanding balance of $1459.20.
In Hitti's case, she fainted in her home and Atlantic
performed an ALS Assessment. Hitti declined transportation to the
hospital but was charged $14 for transport of one mile. Hitti's
bill was $1500, plus the mileage fee. Hitti's health insurance
provider declined to pay Atlantic's bill due to a purported billing
code error.
Appellants sought class certification on behalf of themselves
and approximately 36,000 individuals who were allegedly overbilled
by Atlantic.3 Appellants claimed that their cause of action
satisfied the requirements for class certification. See R. 4:32-
1(a); see also Muise v. GPU, Inc., 371 N.J. Super. 13, 30 (App.
Div. 2004) (the requirements are numerosity, commonality,
typicality and adequacy). Appellants also argued that they met
the requirements of Rule 4:32-1(b)(3) by raising "questions of law
3
In the six-year period, appellants contend there were
approximately 10,000 individuals who were charged a $14 mileage
fee despite not being transported to a hospital (the non-
transported individuals are identified as the "Hitti class") and
26,000 individuals who were transported to a hospital but were
charged an exorbitant bundled rate for ambulance services (these
individuals are identified as the "Cullum class").
5 A-1622-16T2
or fact common to the members of the class [that] predominate over
any questions affecting only individual members, and that a class
action is superior to other available methods for fair and
efficient adjudication of the controversy." R. 4:32-1(b)(3); see
also Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 106-07 (2007).
Appellants maintained their claims were common, typical and
adequate with respect to the claims of the proposed class members
because all were victims of Atlantic's unlawful billing practices
and unconscionable rates in violation of the CFA.4 Appellants
contended that Atlantic had a duty to charge a reasonable fee for
services and breached that duty. For the Hitti class, the issue
was Atlantic's $14 mileage fee for patients not transported to a
hospital.5 For the Cullum class, the issue was the reasonableness
of the fee charged by Atlantic for ALS-1 and ALS-2 services.
Appellants reasoned that the time, energy and cost to pursue
individual lawsuits against Atlantic would make it financially
unfeasible for aggrieved class members to pursue their claims in
the absence of class certification.
4
Atlantic did not dispute the numerosity prong for class
certification.
5
During this litigation, Atlantic conceded that it was improper
to charge a $14 mileage fee for individuals who were not
transported to a hospital.
6 A-1622-16T2
Atlantic countered that appellants' claims were not typical
because proof of their claims would not prove the claims of the
proposed class members. Atlantic highlighted the dissimilar aid
and assistance rendered to individuals who received ALS-1 services
and ALS-2 services, and noted that neither Cullum nor Hitti
received ALS-2 services. Atlantic claimed the reasonableness of
the fees charged for the services required individual adjudication
on a patient-by-patient basis and, therefore, was not amenable to
class certification. Further, Atlantic contended that neither
Cullum nor Hitti suffered damages under a breach of contract theory
or CFA violation claim because: (1) appellants denied receiving
any services from Atlantic, and (2) even if they conceded receipt
of services, appellants did not pay Atlantic's bill to establish
an ascertainable loss under the CFA.
In deciding the motion, the judge found that appellants'
claims were not common, not typical and not in alignment with the
claims of proposed class members because appellants did not receive
ALS-2 services and did not pay for Atlantic's services. The judge
ruled that appellants did not suffer an ascertainable loss under
the CFA because Cullum and Hitti failed to pay Atlantic's bill.
The judge expressly rejected appellants' argument that an
excessive bill from Atlantic was sufficient to prove an
ascertainable loss.
7 A-1622-16T2
On appeal, Cullum and Hitti argue the judge erred in denying
class certification based upon his determination that they were
unable to prove an ascertainable loss to sustain a CFA claim. We
conclude that the judge's denial of class certification on that
basis was flawed because appellants were not required to have paid
Atlantic's bill to demonstrate an ascertainable loss.
The certainty implicit in the concept of an
"ascertainable" loss is that it is
quantifiable or measurable. Moreover, it need
not yet have been experienced as an out-of-
pocket loss to the plaintiff. An "estimate
of damages, calculated within a reasonable
degree of certainty" will suffice to
demonstrate an ascertainable loss.
[Thiedemann v. Mercedes-Benz USA, LLC, 183
N.J. 234, 248-49 (2005) (quoting Cox v. Sears
Roebuck & Co., 138 N.J. 2, 22-23 (1994)).]
In the seminal CFA case, Cox v. Sears Roebuck & Company, the
Supreme Court held that non-payment did not preclude the plaintiff
from establishing an ascertainable loss. Cox, supra, 138 N.J. at
22 ("[T]o demonstrate a loss, a victim must simply supply an
estimate of damages, calculated within a reasonable degree of
certainty. The victim is not required actually to spend the money
for the repairs before becoming entitled to press a claim.").
While we agree with denial of class certification on
appellants' CFA claim, we do so for reasons other than those
expressed by the motion judge. We affirm or reverse judgments and
8 A-1622-16T2
orders, not reasons. Isko v. Planning Bd. of Twp. of Livingston,
51 N.J. 162, 175 (1968); Walker v. Briarwood Condo Ass'n, 274 N.J.
Super. 422, 426 (App. Div. 1994). A correct result, even if
grounded on an erroneous basis in fact or in law, will not be
overturned on appeal. See GNOC, Corp. v. Dir., Div. of Taxation,
328 N.J. Super. 467, 474 (App. Div. 2000), aff'd, 167 N.J. 62(2001).
While we disagree with the motion judge's rationale, we agree
with Atlantic's alternative argument, that the CFA is inapplicable
to ambulance service providers under the "learned professional"
exception to the CFA.6
The "learned professional" exception was first recognized by
the Supreme Court in Macedo v. Dello Russo, 178 N.J. 340 (2004).
In Macedo, the Court noted that the CFA had not changed in the
nearly forty years since its enactment. Id. at 344. The Court
analyzed the cases involving professional services during that
forty-year span, and concluded "our jurisprudence continues to
identify learned professionals as beyond the reach of the [CFA]
so long as they are operating in their professional capacities.
The Legislature is presumed to be aware of that judicial view."
6
In light of this decision, we need not address the parties'
disputes concerning satisfaction of the requirements for class
certification on appellants' fraud claim.
9 A-1622-16T2
Id. at 345-46. The Macedo Court held that advertisements by
learned professionals, specifically physicians:
in respect of the rendering of professional
services are insulated from the CFA but
subject to comprehensive regulation by the
relevant regulatory bodies and to any common-
law remedies that otherwise may apply. We
consider ourselves bound by that Legislative
acquiescence. If we are incorrect in our
assumption, we would expect the legislature
to take action to amend the statute.
[Id. at 346.]
In the thirteen years since Macedo, the Legislature has not
amended the CFA to include learned professionals. Thus, our
jurisprudence continues to exempt professionals from the CFA. See
Manahawkin Convalescent v. O'Neill, 426 N.J. Super. 143, 155-56
(App. Div. 2012) (nursing homes insulated from CFA), aff'd, 217
N.J. 99 (2014);7 Plemmons v. Blue Chip Ins. Servs., Inc., 387 N.J.
Super. 551, 556 (App. Div. 2006) (insurance brokers, as semi-
professionals, insulated from CFA); Hampton Hosp. v. Bresan, 288
N.J. Super. 372, 383 (App. Div.) (hospitals insulated from CFA),
7
The Supreme Court did not decide whether the nursing home's
conduct was exempt from the CFA under the "learned professional"
exception as the Court concluded the nursing home did not commit
an "unlawful practice" under the CFA. In dicta, the Court
expressed "doubt" whether the "billing and collection function at
issue in [the Manahawkin Convalescent] case would qualify for the
learned professional exception." Manahawkin Convalescent, supra,
217 N.J. at 124. However, the Manahawkin Convalescent case
addressed who was responsible for payment of the nursing home's
bill, not the reasonableness of the billing rates.
10 A-1622-16T2
certif. denied, 144 N.J. 588 (1996); Vort v. Hollander, 257 N.J.
Super. 56, 62 (App. Div.) (attorneys insulated from CFA), certif.
denied, 130 N.J. 599 (1992). But see Suarez v. E. Int'l Coll.,
428 N.J. Super. 10, 39 (App. Div. 2012) (educational and vocational
training program governed by the CFA because the program was not
overseen by any regulatory body and there were no regulations
governing the school that would present "a patent and sharp"
conflict with the CFA), certif. denied, 213 N.J. 57 (2013).
In Neveroski v. Blair, 141 N.J. Super. 365 (App. Div. 1976),8
we held that real estate brokers were not subject to the CFA
because:
A real estate broker is in a far different
category from the purveyors of products or
services or other activities. He is in a semi-
professional status subject to testing,
licensing, regulations and penalties through
other legislative provisions. Although not
on the same plane as other professionals such
as lawyers, physicians, dentists, accountants
or engineers, the nature of his activity is
recognized as something beyond the ordinary
commercial seller of goods or services -- an
activity beyond the pale of the act under
consideration.
Certainly no one would argue that a member of
any of the learned professions is subject to
the provisions of the Consumer Fraud Act
8
In 1976, the Legislature amended the CFA to include real estate,
thereby abrogating the court's holding in Neveroski. See N.J.S.A.
56:8-2. The Neveroski decision remains instructive as it supports
the CFA's exclusion of learned professionals absent express
legislative authority.
11 A-1622-16T2
despite the fact that he renders "services"
to the public. And although the literal
language may be construed to include
professional services, it would be ludicrous
to construe the legislation with that broad a
sweep in view of the fact that the nature of
the services does not fall into the category
of consumerism.
Similarly, in the absence of clear and
explicit language in the statute, a broker who
negotiates the sale of real estate and thereby
renders "services" is nevertheless outside the
scope of persons sought to be covered by the
Act.
[Id. at 379-80 (citations omitted).]
We review the relevant statutory and regulatory provisions
to determine whether ambulance service providers are learned
professionals exempt from consumer fraud claims. By statute, the
Department of Health (Department) is charged with overseeing the
provision of health care services to the public, and ensuring that
the services provided are "at a reasonable cost." N.J.S.A. 26:2H-
1. The definition of health care services specifically includes
ambulance services. N.J.S.A. 26:2H-2(b). The Department
regulates ambulance service providers in accordance with N.J.S.A.
26:2H-1 to -26 and N.J.S.A. 26:2K-7 to -20.
Pursuant to its statutory authority, the Department
promulgated regulations governing "Mobility Assistance Vehicle and
Basic Life Support Ambulance Services," N.J.A.C. 8:40-1.1 to -7.4,
and "Advanced Life Support Services; Mobile Intensive Care
12 A-1622-16T2
Programs, Specialty Care Transport Services and Air Medical
Services," N.J.A.C. 8:41-1.1 to -12.5. These regulations "define
the operational requirements" of non-volunteer mobility assistance
vehicles, basic life support ambulance services, mobile intensive
care programs and specialty care transport services in the State.
N.J.A.C. 8:40-1.2; N.J.A.C. 8:41-1.2. The Department's
regulations establish stringent licensure requirements for
ambulance service providers. N.J.A.C. 8:40-2.1 to -2.3; N.J.A.C.
8:41-2.1 to -2.3. Additionally, the Department has the right to
take enforcement action against ambulance service providers.
N.J.S.A. 26:2H-13; N.J.S.A. 26:2H-14; N.J.A.C. 8:40-7.2; N.J.A.C.
8:41-12.3.
Whether labeled "professionals" or "semi-professionals," we
find that ambulance service providers are excluded from liability
under the CFA for services rendered consistent with their
professional license because they are regulated by the Department.
The undisputed goal of the CFA is to protect consumers. Hampton
Hosp., supra, 288 N.J. Super. at 378 (citing Martin v. Am.
Appliance, 174 N.J. Super. 382, 384 (App. Div. 1980)). In Hampton
Hospital, we noted that because hospitals are regulated by the
Department, there was "no purpose to a requirement that hospital
services be within the purview of the Consumer Fraud Act when
those same services fall within the purview of the Department of
13 A-1622-16T2
Health." Id. at 383. Here, the Department adopted extensive
regulations governing ambulance services, and is authorized to
take measures against ambulance service providers for violation
of its regulations, including revocation of licensure. N.J.S.A.
26:2H-13; N.J.S.A. 26:2H-14; N.J.A.C. 8:40-7.2; N.J.A.C. 8:41-
12.3.
Based upon the Department's rigorous regulation of ambulance
services, the learned professional exception to the CFA precludes
appellants' consumer fraud claim. To hold otherwise would present
a situation "with a real possibility of conflicting
determinations, rulings and regulations affecting the identical
subject matter." Daaleman v. Elizabethtown Gas Co., 77 N.J. 267,
272 (1978). Since we determine that ambulance service providers
are excepted from the CFA, denial of appellants' motion for class
certification on the consumer fraud claim was the correct result.
Our determination that the CFA is inapplicable to Atlantic
does not completely dispose of this matter. Appellants also sought
class certification on their breach of contract claim against
Atlantic. There are two distinct breach of contract claims in
this case. One claim on behalf of the Cullum class is that
Atlantic charged unreasonable rates for ambulance services. 9 And
9
In opposition to class certification on this breach of contract
claim, Atlantic argued it is necessary to bundle rates for
14 A-1622-16T2
the other claim on behalf of the Hitti class is that Atlantic
improperly charged a $14 mileage fee.
With respect to the breach of contract claim on behalf of the
Cullum class, we determine that denial of class certification was
proper, but for reasons other than those articulated by the motion
judge.
The health care regulations and statutes enacted by the
State's Legislative and Executive branches establish that adequate
and affordable health care services are of utmost importance. In
passing the Health Care Facilities Planning Act, N.J.S.A. 26:2H-1
to -26 (Act), the Legislature proclaimed a strong public policy
to establish, promote and ensure adequate health care services in
this State. The Act explicitly declares that it is "the public
policy of this State that . . . related health care services of
the highest quality, of demonstrated need, efficiently provided
and properly utilized at a reasonable cost are of vital concern
to the public health." N.J.S.A. 26:2H-1.
ambulance services, to cover the cost of providing trained and
licensed professionals, in fully equipped specialty vehicles, to
respond to medical emergencies. The uniform rates charged by
Atlantic for ambulance services also contemplate charity care
subsidies and other financial considerations required to render
ambulance services to patients who lack health care coverage or
cannot afford health care services. See N.J.A.C. 8:33-4.10.
15 A-1622-16T2
The Act further requires the Department to establish a State
Health Planning Board (SHPB). N.J.S.A. 26:2H-5.7. The SHPB
reviews applications for certificates of need and makes
recommendations to the Department's Commissioner regarding the
issuance of those certificates.10 N.J.S.A. 26:2H-5.8(b). Under
the Act, "no new health care service shall be instituted . . .
except on application for and receipt of a certificate of need
. . . ." N.J.S.A. 26:2H-7.11 To obtain a certificate of need, the
Act provides:
No certificate of need shall be issued unless
the action proposed in the application for
such certificate is necessary to provide
required health care in the area to be served,
can be economically accomplished and
maintained, will not have an adverse economic
or financial impact on the delivery of health
care services in the region or Statewide, and
will contribute to the orderly development of
adequate and effective health care services.
[N.J.S.A. 26:2H-8.]
10
"'Certificate of need' means the formal written approval of the
New Jersey Department of Health and Human Services to construct
or expand a health care facility or to institute a new health care
service, in accordance with the requirements set forth at N.J.A.C.
8:33." N.J.A.C. 8:41-1.3.
11
As used in this section of the Act, the term "health care
service" includes "any service which is the subject of a health
planning regulation adopted by the Department . . . ." N.J.S.A.
26:2H-7.
16 A-1622-16T2
The Department issued a certificate of need to Atlantic to
provide ambulance services. Prior to issuing a certificate of
need, the Department and SHPB were required to consider whether
the Atlantic's services could "be financially accomplished and
licensed in accordance with applicable licensure regulations,"
would "not have an adverse impact on access to health care services
in the region or State-wide," and would "contribute to the orderly
development of adequate and effective health care services."
N.J.A.C. 8:33-4.9. If Atlantic did not meet the statutory and
regulatory requirements for issuance of a certificate of need, the
Department would have denied the application.
From our review of the statutes and regulations governing
health care in this State, we discern an unequivocal legislative
policy to ensure adequate and effective health care services for
all residents. The regulations governing certificates of need
take into consideration many factors including, specifically,
financial impacts and concerns. N.J.A.C. 8:33-4.9 and -4.10.
Applicants seeking a certificate of need for health care services
are required to provide services to persons who are financially
"unable to obtain care." N.J.A.C. 8:33-4.10.12
12
Atlantic accepts discounted payment for ambulance services
depending upon the situation. For example, Atlantic reduces its
fee by as much as forty percent for services provided to uninsured
patients. Atlantic also has arrangements with third-party
17 A-1622-16T2
Keeping in mind New Jersey's strong policies governing health
care services, we consider the breach of contract claim on behalf
of the Cullum class. Health care costs are a significant issue
in the United States. Providing affordable health care services
is a policy issue to be addressed by the Legislature and the
Executive Branch agencies to which it has delegated the authority
to carry out its policies. See DiCarlo v. St. Mary's Hosp., 530
F.3d 255, 259 (3d Cir. 2008).13
We find persuasive the decision of the Third Circuit Court
of Appeals, which affirmed a trial court decision dismissing
billing claims against a hospital:
In the District Court, DiCarlo's primary
argument was that the practice of charging
uninsured patients significantly higher rates
than insured patients and patients covered
under Medicare, Medicaid, or the New Jersey
Charity Care Program, for the same services
and supplies, is wrongful and discriminatory.
The District Court granted the defendants'
motion for judgment on the pleadings and
dismissed DiCarlo's complaint with prejudice.
insurance companies to accept less than the billed amount for its
ambulance services.
13
Appellants contend that Atlantic is precluded from arguing
courts cannot determine reasonable rates for health care services
because no cross-appeal was filed. We disagree. Rule 2:3-4
requires the filing of a cross-appeal where "respondent seeks to
expand the substantive relief granted in the order, and not just
provide further support for sustaining the order." Pressler &
Verniero, Current N.J. Court Rules, comment 2 on R. 2:3-4 (2017).
See State v. Eldakroury, 439 N.J. Super. 304, 307 n. 2 (App. Div.),
certif. denied, 222 N.J. 16 (2015).
18 A-1622-16T2
The District Court discussed the policy
concerns about the rising cost of healthcare
at length and found that the courts are ill-
equipped to determine what reasonable hospital
costs are, or to make a policy determination
on behalf of the legislative branch.
[DiCarlo v. St. Mary's Hosp., supra, 530 F.3d
at 259.]
Thus, we agree that denial of class certification for the
breach of contract claim on behalf of the Cullum class, challenging
the reasonableness of fees charged by Atlantic, was proper.
We next review denial of class certification for the breach
of contract claim on behalf of the Hitti class. Individuals
requiring ambulance services do not "contract" with Atlantic. Nor
can they negotiate with Atlantic regarding its services. The
relationship between Atlantic and its patients is based upon
implied contract or quasi-contract. See Wanaque Bor. Sewerage
Auth. v. Twp. of West Milford, 144 N.J. 564, 574 (1996) (contracts
implied-in-fact for services are inferred from the parties'
conduct or from the surrounding circumstances).
Turning to the quasi-contract claim, patients not brought to
a hospital, identified as the Hitti class, were charged for one
mile of travel. Atlantic now admits that patients in the Hitti
class were not transported to a hospital and, therefore, the $14
fee was improper. However, Atlantic did not refund or credit the
$14 amount to those individuals. Consideration of the refund
19 A-1622-16T2
issue for the Hitti class would not violate the policy concerns
associated with the Cullum class because it is limited to a charge
Atlantic admits was billed in error and does not implicate
Atlantic's rate-setting decisions for ambulance services.
Because the judge did not consider whether the Hitti class
could pursue class certification to recoup Atlantic's improperly
charged $14 mileage fee under a breach of quasi-contract theory,
we remand that issue to the trial court. The judge should
determine whether the breach of quasi-contract claim against
Atlantic, limited to recovery of the $14 mileage fee, is suitable
for class certification.
In sum, we affirm denial of class certification on appellants'
Consumer Fraud Act claim. We also affirm denial of class
certification on the breach of contract claim as to the Cullum
class. We remand the matter to the trial court to review class
certification on the breach of quasi-contract claim as to the
Hitti class.
Affirmed in part and remanded in part. We do not retain
jurisdiction.
20 A-1622-16T2