CITIZENS UNITED RECIPROCAL EXCHANGE VS. GARDEN STATE ANESTHESIA, PA(L-2364-15, BERGEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-5720-14T4
CITIZENS UNITED RECIPROCAL
EXCHANGE,
Plaintiff-Appellant,
v.
GARDEN STATE ANESTHESIA, PA,
CLIFTON SURGERY CENTER,
NORTHERN NJ ORTHO SPECIALISTS,
PATIENT CARE ASSOCIATES, TODD
KOPPEL, MD, RARITAN ANESTHESIA
ASSOCIATES, and ALLIED SURGICAL
GROUP,
Defendants-Respondents.
_____________________________________
Submitted April 25, 2017 – Decided October 13, 2017
Before Judges Espinosa and Suter.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-2364-15.
Eric S. Poe, attorney for appellant (Sonya
Lopez Bright, on the brief).
DeGrado Halkovich, LLC, attorneys for
respondent Garden State Anesthesia, PA (Howard
I. Gordon, on the brief).
Joseph M. Ariyan, LLC, attorneys for
respondent Clifton Surgery Center (Robert M.
Savino, of counsel and on the brief).
Shaw Kreizer, PA, attorneys for respondents
Northern NJ Ortho Specialists, Patient Care
Associates, and Raritan Anesthesia (Judd B.
Shaw, on brief).
Massood Law Group, LLC, attorneys for
respondent Todd Koppel, MD (Kimberly A. Kopp,
on the brief).
Callagy Law, PC, attorneys for respondent
Allied Surgical Group (Lynne Goldman, on the
brief).
The opinion of the court was delivered by
SUTER, J.A.D.
Citizens United Reciprocal Exchange (CURE) appeals orders
dated July 7, 2015, that required it to pay additional attorney's
fees to respondents following its unsuccessful litigation to
vacate personal injury protection (PIP) arbitration awards that
were entered in favor of respondents. We reverse the additional
award of attorney's fees and remand that issue to the trial court
for findings of fact and conclusions of law as required by Rule
1:7-4(a).
In 2009, William Gilmartin claimed to have sustained personal
injuries while in a motor vehicle insured by CURE. He obtained
medical treatment and services from Garden State Anesthesia, PA;
Clifton Surgery Center; Northern NJ Ortho Specialists; Patient
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Care Associates; Todd Koppel, M.D.; Raritan Anesthesia Associates;
and Allied Surgical Group (respondents). CURE denied payment to
respondents under the personal injury protection (PIP) coverage
of the policy. Each respondent demanded PIP arbitration and the
cases were consolidated. The dispute resolution professional
entered an award in favor of respondents.
In March 2015, CURE filed an order to show cause and verified
complaint in the Superior Court against respondents requesting an
order vacating the arbitration awards. It claimed the awards
constituted prejudicial error by "erroneously applying law to the
issues and facts presented for alternative dispute resolution."
On May 15, 2015, the trial court affirmed six of the seven awards,
vacating and remanding only a portion of one of the awards.1 The
trial court awarded respondents attorney's fees under Rule 4:42-
9(a)(6).2 Additionally, the court ordered that within fifteen
days, respondents "shall submit . . . a certification of services
that details the attorney's fees incurred solely as a result of
this appeal."
1
The award to Northern NJ Ortho was affirmed on the issue of
medical necessity but reversed and remanded regarding certain
billing codes.
2
No fees were awarded to Northern NJ Ortho Specialists.
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Each respondent submitted a request for attorney's fees with
supporting certifications. CURE filed opposition. In orders
dated July 7, 2015, the court awarded additional attorney's fees
and costs incurred for the appeals in the full amount respondents
requested.3 The court did not explain the legal authority for
these awards nor did it review the factors required under Rule of
Professional Conduct (RPC) 1.5.
On appeal, CURE challenges only the portions of the July 7,
2015 orders that awarded additional attorney fees. CURE alleges
the court erred by not "stat[ing] its findings of fact and
conclusions of law on the record or in written memorandum" as
required by Rule 1:7-4(a). Respondents contend we do not have
jurisdiction to review the fee issue. Alternatively, they contend
that if the matter is properly before us, we should defer to the
trial court's award by finding there was no abuse of discretion
or conduct our own de novo review.
The additional attorney fee award falls squarely within our
jurisdiction. In Allstate Ins. Co. v. Sabato, 380 N.J. Super.
463, 473 (App. Div. 2005), we considered whether we had the ability
to review an award of attorney's fees following a PIP arbitration.
We held that "[t]he award of attorney's fees, whether encompassing
3
The only exception was Clifton Surgery Center which was not
awarded costs.
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bookkeeping records, reasonableness, or the type of fee agreed to,
is governed by our Court rules, specifically the Rules of
Professional Conduct, RPC 1.5, and Rules of General Application,
R. 1:21-6 and R. 1:21-7. Thus, fees come within the exclusive
supervisory powers of the Court." Ibid.
Generally, the assessment of attorney's fees is left to the
sound discretion of the trial court and is reviewed under an abuse
of discretion standard. Packard-Bamberger & Co., Inc. v. Collier,
167 N.J. 427, 443-44 (2001); Rendine v. Pantzer, 141 N.J. 292, 317
(1995). A court has abused its discretion "if the discretionary
act was not premised upon consideration of all relevant factors,
was based upon consideration of irrelevant or inappropriate
factors, or amounts to a clear error in judgment." Masone v.
Levine, 382 N.J. Super. 181, 193 (App. Div. 2005).
Here, the trial court did not explain the reason for awarding
fees or for the amount awarded. The Rules provide a trial judge
"shall, by an opinion or memorandum decision, either written or
oral, find the facts and state [his or her] conclusions of law
thereon in all actions tried without a jury . . . ." R. 1:7-4(a).
"The rule requires specific findings of fact and conclusions of
law . . . ." Pressler & Verniero, Current N.J. Court Rules,
comment 1 on R. 1:7-4 (2016). "Meaningful appellate review is
inhibited unless the judge sets forth the reasons for his or her
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opinion." Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div.
2008) (quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div.
1990)). It is incumbent on the trial court to "analyze the
[relevant] factors in determining an award of reasonable counsel
fees and then must state its reasons on the record for awarding a
particular fee." R.M. v. Supreme Court of N.J., 190 N.J. 1, 12
(2007) (alteration in original) (quoting Furst v. Einstein Moomjy,
Inc., 182 N.J. 1, 21 (2004)).
We agree with CURE that the trial court did not explain the
award of additional attorney's fees. We are constrained to reverse
the fee awards and to remand the case to the trial court to make
findings of fact and conclusions of law consistent with Rule 1:7-
4(a), regarding the requests for additional attorney's fees. No
other provisions of the July 7 orders are affected by our reversal
or remand.
Reversed and remanded. We do not retain jurisdiction.
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