Panniel v. Dia

871 A.2d 156 (N.J. Super. Ct. Law Div. 2004)

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Nature of the Case

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Facts

P was struck by an ambulance driven by D and was owned by Hospital (D1). Coincidentally, P and D1 had separately insured their respective vehicles with New Jersey Manufacturers Insurance Company (I). P was transported to D1, where she was treated for chest and shoulder pain. The next day, P noticed a cut on the bottom of her right foot. After self-treatment was unsuccessful, P returned to the hospital and admitted with cellulites of the right foot and new-onset diabetes. P underwent surgery on her right foot to remove the contaminated tissue. All five toes of plaintiff's right foot were amputated in that procedure. By letter, I informed her that 'there is no PIP coverage available' because 'the documented injuries and treatment are not motor vehicle accident related.' P's counsel sent a demand for PIP arbitration and a week later filed a personal injury action on her behalf in the Superior Court against Ds. I hired the law firm of Lenox to defend it in the PIP dispute and also to defend Ds in the personal injury action. The arbitrator heard live testimony from both P and from her physician Dr. Williams, both of whom were examined and cross-examined by counsel. The Arbitrator also considered the defense expert reports from Dr. Scotti and Dr. Carabelli, as well as what he described as 'substantial' medical records and reports, including P's entire hospital record. The decision found that P was injured in an automobile accident on June 19, 2002, while insured by I. The decision further concluded that 'based on the credible medical evidence . . . the expenses related to the care of the right leg and foot and ultimate amputation are causally related to the automobile accident [and are] payable as medical expense benefits, and are subject to relevant fee schedule, copay and deductible.' Neither plaintiff nor I timely pursued an appeal of the arbitrator's decision. The arbitrator's resolution is now final. P then filed a motion for partial summary judgment seeking to preclude Ds in the tort action from relitigating the arbitrator's finding that P's amputation was proximately caused by the motor vehicle accident. P argues that I and Ds are in privity and were 'virtually' represented at the PIP arbitration by the very same attorney defending them in the tort action. P claims that I had ample opportunities and incentives to disprove causation at the arbitration, and that it would be wasteful and unfair for this court to require P to prove causation a second time.