MICHAEL J. FERRIOLA VS. THE CINCINNATI INSURANCE COMPANY (L-0009-17, SALEM 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NOT FOR PUBLICATION WITHOUT THE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-1992-17T3
MICHAEL J. FERRIOLA,
Plaintiff-Appellant,
v.
THE CINCINNATI INSURANCE
COMPANY,
Defendant-Respondent.
______________________________
Argued January 7, 2019 – Decided January 23, 2019
Before Judges Messano and Fasciale.
On appeal from Superior Court of New Jersey, Law
Division, Salem County, Docket No. L-0009-17.
Andrew S. Viola argued the cause for appellant
(Albano & Viola, LLC, attorneys; Michael P. Albano,
on the briefs).
Walter F. Kawalec, III argued the cause for respondent
(Marshall Dennehey Warner Coleman & Goggin,
attorneys; Walter F. Kawalec, III, and Walter J.
Klekotka, on the brief).
PER CURIAM
In this underinsured motorist (UIM) arbitration case, plaintiff appeals
from the November 29, 2017 order denying his motion to vacate a replacement
UIM arbitration award. The same order granted defendant's motion to confirm
the award. Plaintiff argues primarily that the judge erred in entering the order
by not considering the entire lost wage claim and workers' compensation lien.
We disagree and affirm.
Plaintiff sustained injuries from a car accident while working as a
driver/serviceman for Industrial Age Contractors, Inc. IFA Insurance Company
insured the tortfeasor, who rear-ended plaintiff's vehicle, up to $15,000.
Defendant is the UIM carrier for plaintiff's employer. After IFA paid its policy
limits, the parties proceeded to UIM arbitration.
In December 2016, the arbitration panel awarded plaintiff $175,000.
Plaintiff sought to vacate the award arguing that the arbitrators failed to explain
the basis of the award, and did not consider plaintiff's workers' compensation
lien, Medicare lien, lost wages, or pain and suffering claim. The judge saw no
reason to vacate the award under N.J.S.A. 2A:23B-23, but remanded for
clarification, pursuant to N.J.S.A. 2A:23B-20(d)(3) (permitting such a
procedure).
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The arbitrators reconvened and issued the replacement award. The
arbitrators awarded $115,000 for pain and suffering, $39,600 for a net wage loss,
$115,000 for past reimbursable medical benefits, and $28,542.49 for future
medical benefits. The arbitrators explained in detail the basis for the award,
which totaled $298,142.49.
The arbitrators unanimously concluded that plaintiff carried his burden of
proof demonstrating the accident caused "a right shoulder injury resulting in
need for surgery on April 15, 2013; aggravation of underlying spinal condition
leading to epidural injections; [and] concussion-related symptomology." But
the arbitrators also unanimously concluded that plaintiff "failed to carry [his]
proof with respect to any other accident-related injury specifically including but
not limited to a traumatic brain injury and post-concussion syndrome leading to
cognitive deficits in balance, processing or concentration." After considering
the proofs, the arbitrators stated that they "confidently provide[d] an [a]ward
which [they] believe[d] fully considered all parties' evidence against the parties'
respective burdens of proof."
Plaintiff moved to vacate the replacement arbitration award, arguing that
the arbitrators did not adequately consider plaintiff's workers' compensation
lien. Plaintiff also argued that the arbitrators failed to adequately explain their
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lost wages allocation. Plaintiff asserted that, similar to the first award, the
arbitrators did not make findings of facts or conclusions of law or properly
explain the reason for the award – but that the arbitrators simply "threw out
numbers."
The judge found that the arbitrators adequately explained the basis for the
replacement award. In confirming the replacement award and denying plaintiff's
motion to vacate under N.J.S.A. 2A:23B-23, the judge stated that after the first
award, he was concerned as to whether the arbitrators considered the workers'
compensation lien. But, after they rendered the replacement award, he was
satisfied that the arbitrators considered the workers' compensation lien:
And now[,] they've explained they did, and that the
reason that there is a difference between the much
higher worker's compensation number and the number
that they found is because they found that certain
injuries that are really provoking and causing the more
significant numbers weren't injuries that were proven to
be caused by this accident.
"It . . . is well settled that 'there is a strong preference for judicial
confirmation of arbitration awards.'" Minkowitz v. Israeli, 433 N.J. Super. 111,
135 (App. Div. 2013) (quoting Linden Bd. of Educ. v. Linden Educ. Ass'n, 202
N.J. 268, 276 (2010)). Courts will grant arbitration awards "considerable
deference." Borough of E. Rutherford v. E. Rutherford PBA Local 275, 213
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N.J. 190, 201 (2013). It is the party seeking to vacate an arbitration award that
"bears the burden of demonstrating 'fraud, corruption, or similar wrongdoing on
the part of the arbitrator[.]'" Minkowitz, 433 N.J. Super. at 136 (quoting Tretina
Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349, 358 (1994)).
Therefore, "[j]udicial review of an arbitration award is very limited." Bound
Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017) (quoting Linden Bd. of
Educ., 202 N.J. at 276). Because the decision to vacate an arbitration award is
a matter of law, we review a denial of a motion to vacate an arbitration award
de novo. Manger v. Manger, 417 N.J. Super. 370, 376 (App. Div. 2010).
On appeal, plaintiff maintains that we should vacate the replacement
award because it does not include the entire lost wage claim. N.J.S.A. 2A:23B -
23(a) provides six reasons to vacate an arbitration award:
(1) the award was procured by corruption, fraud, or
other undue means;
(2) the court finds evident partiality by an arbitrator;
corruption by an arbitrator; or misconduct by an
arbitrator prejudicing the rights of a party to the
arbitration proceeding;
(3) an arbitrator refused to postpone the hearing upon
showing of sufficient cause for postponement, refused
to consider evidence material to the controversy, or
otherwise conducted the hearing contrary to section 15
of this act, so as to substantially prejudice the rights of
a party to the arbitration proceeding;
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(4) an arbitrator exceeded the arbitrator’s powers;
(5) there was no agreement to arbitrate, unless the
person participated in the arbitration proceeding
without raising the objection pursuant to subsection c.
of section 15 of this act not later than the beginning of
the arbitration hearing; or
(6) the arbitration was conducted without proper notice
of the initiation of an arbitration as required in section
9 of this act so as to substantially prejudice the rights
of a party to the arbitration proceeding.
Under N.J.S.A. 2A:23B-23(d), "[i]f the court denies an application to vacate an
award, it shall confirm the award unless an application to modify or correct the
award is pending." As the judge noted, plaintiff failed to satisfy any of these six
conditions. We reach the same conclusion.
We cannot second-guess the arbitrators' findings on causation or the
alleged seriousness of plaintiff's purported injuries. The arbitrators determined
what injuries were caused by the accident and entered an appropriate award.
The arbitrators considered all the evidence and adequately explained the
reasoning for the replacement award.
Importantly, in arriving at the replacement award, the arbitrators viewed
surveillance videos of plaintiff from April, May, and September 2016. The
surveillance of plaintiff cast substantial doubt on whether the injuries were as
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serious as he had contended. The videos show that plaintiff was without any of
the physical ailments that he expressed during his deposition and at the
arbitration proceeding. In light of all the evidence, the arbitrators explained that
they unanimously concluded that plaintiff failed to prove the more serious
accident-related injuries, specifically, a traumatic brain injury and post-
concussion syndrome. The arbitrators further explained that they "parcel[ed]
out [the] portions of the claims [they] collectively attributed to the accident -
related injuries." Thus, the net wage loss amount that they awarded reflects the
injuries that the arbitrators found plaintiff proved.
We reject any contention that the judge failed to consider the workers'
compensation lien, which exceeded $700,000. Rather, the judge discussed the
lien at length on the record. The judge explained that the workers' compensation
lien suggests that the North Carolina Industrial Commission 1 awarded benefits
based on all of plaintiff's alleged accident-related injuries, while the arbitrators
expressly concluded that plaintiff failed to prove traumatic brain injuries and
post-concussion syndrome. And the judge acknowledged that the arbitrators
considered "surveillance films that basically refute what it is . . . plaintiff is
1
The North Carolina Industrial Commission is charged with awarding workers'
compensation. See N.C. Gen. Stat. § 97-83.
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claiming he can't do." He concluded that the arbitrators "get to decide . . . the
boardable expenses [that] relate[] to this specific accident."
We conclude, as did the judge, that there is no basis to vacate the award
under N.J.S.A. 2A:23B-23(a). In light of our "very limited" review, we
therefore decline to disturb the replacement arbitration award. Ciripompa, 228
N.J. at 11.
Affirmed.
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