In New Jersey, disputes involving personal injury protection (“PIP) benefits are handled through arbitration via the Forthright Solutions Forum (“Forthright”). Once a Forthright arbitration award is received, a party may file a request for modification/clarification of the award (similar to a request for reconsideration in Superior Court) to be decided by the Forthright arbitrator who rendered the award or file an appeal to a Forthright Appellate Panel of three arbitrators. Additionally, a party may also seek relief from the New Jersey Superior Court by way of Order to Show Cause and Verified Complaint.
Pursuant to N.J.S.A. § 2A:23A-13(a), the deadline for appealing a Forthright PIP award to the Superior Court is 45 days from the date the award is delivered. However, if the Forthright award is an “award modified,” the deadline to appeal to the Superior Court is reduced to 30 days from the delivery of then award, pursuant to N.J.S.A. § 2A:23A-12(d). In 2016, the Appellate Division in CURE v. Northern NJ Ortho Specialists, 445 N.J. Super. 371 (App. Div. 2016), found that when a party to a Forthright PIP arbitration requests modification/clarification of the arbitration award, any appeal to the Superior Court by way of Order to Show Cause and Verified Complaint must be filed within 30 days – not 45 days- of the receipt of the modification/clarification order, regardless of whether the request for modification/clarification is granted or denied.
Notably, the CURE v. Northern NJ Ortho ruling did not address the deadline for filing an appeal to Superior Court in the event an appeal to a Forthright Appellate Panel of three arbitrators was previously filed. On August 3, 2018, the Appellate Division shed light on the deadline for filing an Order to Show Cause and Verified Complaint in the Superior Court following an appeal to a Forthright Appellate Panel. In a decision approved for publication, Personal Service Insurance Company v. Relievus a/s/o Rachel Sackie, _____ N.J. Super. _______ (App. Div. 2018), the court held that the deadline for appealing a Forthright Appellate Panel award, in which the initial arbitrator’s award was affirmed, is 45 days from service of the Appellate Panel’s decision.
In PSIC v. Relievus, an arbitration award was rendered in Relievus’s favor on April 29, 2016. PSIC appealed that arbitrator’s award to a Forthright Appellate Panel of three arbitrators, which affirmed the underlying award. PSIC then filed an Order to Show Cause and Verified Complaint in the Superior Court, 43 days after the Forthright Appellate Panel award affirming the underlying award was issued, seeking to vacate the arbitration award. Relievus argued that PSIC was time barred because they appealed to the Superior Court 159 days after the original Forthright award was issued and therefore well outside of 45 day timeframe prescribed in N.J.S.A. § 2A:23A-13(a). Conversely, PSIC, took the position that the 45-day period to seek trial court review was tolled due to the pendency of the appeal filed to the Forthright Appellate Panel. The trial court agreed with Relievus and found that that PSIC’s Order to Show Cause was untimely and that parties to a Forthright PIP arbitration cannot first exhaust Forthright remedies before applying to the Superior Court - that PSIC “does not get two opportunities” to appeal and must instead choose to appeal with Forthright or with the Superior Court.
The Appellate Division in PSIC v. Relievus reversed the trial court’s decision and found that N.J.S.A. § 2A:23A-13(a) when read with N.J.A.C. 11:3-5.6(g) permits any party to a Forthright arbitration to first exhaust its’ Forthright appeal options before applying to the Superior Court if it so chooses. PSIC v. Relievus further held that a party has 45 days to file an Order to Show Cause in the Superior Court when appealing a Forthright Appellate Panel award in which the underlying Forthright arbitration award was affirmed. It should be noted that the PSIC v. Relievus opinion did not discuss the “award modified” language of N.J.S.A. § 2A:23A-12(d), or the prior ruling in CURE v. Northern NJ Ortho regarding the implication of an “award modified” when applied to a Forthright Appellate Panel award. Consequently, the possibility exists that the 45 day deadline to file an Order to Show Cause may not apply in the instance of a Forthright Appellate Panel award that modified or vacated the underlying Forthright award.
Takeaways:
- A party may exhaust all Forthright appeal options, including a request for modification/clarification and/or an appeal to a Forthright Appellate panel of three arbitrators, before seeking relief in the Superior Court.
- If a Forthright award is being appealed to the Superior Court following a modification/ clarification order, a party must do so within 30 days of receipt of the modification/clarification order, regardless of the result of the application as per CURE v. Northern NJ Ortho Specialists, 445 N.J. Super. 371 (App. Div. 2016); N.J.S.A. § 2A:23A-12(d).
- If a Forthright award is being appealed to the Superior Court following an appeal to a Forthright Appellate Panel, in which the underlying arbitration award was affirmed, a party must do so within 45 days of receipt of the Forthright Appellate Panel award pursuant to the holding in Personal Service Insurance Company v. Relievus a/s/o Rachel Sackie, _____ N.J. Super. _______ (App. Div. 2018); N.J.S.A. § 2A:23A-13(a).
- Personal Service Insurance Company v. Relievus a/s/o Rachel Sackie, _____ N.J. Super. _______ (App. Div. 2018) does not address whether the 30 day or 45 day deadline applies to Forthright Appellate Panel awards that vacate or modify the underlying arbitration award. Therefore, when filing an Order to Show Cause seeking relief from a Forthright Appellate Panel award that vacates and/or modifies the underlying Forthright award, it would be prudent to file the Superior Court action within 30 days of the receipt of the Forthright Appellate Panel award as per the “award modified” deadlines in N.J.S.A. § 2A:23A-12(d).
