CRANIO ASSOCIATES, ETC. VS. STATE FARM INDEMNITY COMPANYÂ (L-2967-16, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4422-15T1
CRANIO ASSOCIATES
a/s/o ADOLFO GARCIA,
Plaintiff-Appellant,
v.
STATE FARM INDEMNITY
COMPANY,
Defendant-Respondent.
________________________________________________________________
Submitted June 6, 2017 – Decided July 14, 2017
Before Judges Reisner and Rothstadt.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-2967-16.
Julie Lefkowitz, attorney for appellant.
Gregory P. Helfrich & Associates, attorneys
for respondent (Joseph J. Trefurt, on the
brief).
PER CURIAM
Plaintiff, Cranio Associates, a medical provider, appeals
from the Law Division's June 3, 2016 order dismissing its complaint
for frivolous litigation sanctions, R. 1:4-8, against defendant,
State Farm Indemnity Company, in its capacity as the personal
injury protection (PIP) carrier for plaintiff's patient.
Plaintiff claimed it was underpaid by defendant for medical
treatment that plaintiff provided to defendant's insured and
therefore pursued a PIP arbitration for additional payments. The
dispute resolution professional (DRP) who considered the matter
determined that because the limits of the patient's PIP coverage
under defendant's policy had been exhausted, he could not consider
a claim for additional sums.
According to plaintiff, it was entitled to sanctions because
defendant waited until the day before the scheduled arbitration
to advise plaintiff and the DRP that the limits of the insured's
PIP coverage had been exhausted. Plaintiff sought sanctions from
the DRP, who rejected the claim because he was without authority
to consider it, and then from the court, by filing its complaint
in the Law Division. Judge Charles E. Powers dismissed plaintiff's
complaint, finding no legal basis to award sanctions under Rule
1:4-8. On appeal, plaintiff asserts defendant's "knowing defense
of a PIP arbitration" while the "policy was exhausted" qualifies
as "a frivolous defense, for the purpose of harassment or delay,"
entitling plaintiff to recover sanctions under Rule 1:4-8.
Moreover, because defendant did not contest plaintiff's claim
other than by asserting the exhaustion of its policy's limits,
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plaintiff was a successful claimant thereby entitled to an award
of fees and other relief. We disagree and affirm substantially
for the reasons expressed by Judge Powers in the comprehensive
rider attached to his June 3, 2016 order.
Generally, we review "[a] trial judge's decision to [not]
award attorney's fees pursuant to Rule 1:4-8," under an abuse of
discretion standard. McDaniel v. Lee, 419 N.J. Super. 482, 498
(App. Div. 2011); see also United Hearts, L.L.C. v. Zahabian, 407
N.J. Super. 379, 390 (App. Div.), certif. denied, 200 N.J. 367
(2009). "Reversal is warranted when '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.'" Ferolito v. Park Hill
Ass'n, 408 N.J. Super. 401, 407 (App. Div.) (quoting Masone v.
Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)), certif. denied,
200 N.J. 502 (2009); see also Flagg v. Essex Cty. Prosecutor, 171
N.J. 561, 571 (2002).
We conclude from our review that the judge properly exercised
his discretion and dismissed plaintiff's complaint. We find
plaintiff's arguments to the contrary to be without sufficient
merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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