Palisades Insurance Company v. Horizon Blue Cross Blue Shield of New Jersey, A-2830-19

CourtNew Jersey Superior Court – Appellate Division
Writing for the CourtMITTERHOFF, J.A.D.
Docket NumberA-2830-19
Decision Date27 July 2021



No. A-2830-19

Superior Court of New Jersey, Appellate Division

July 27, 2021

Argued May 26, 2021

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6136-19.

Glenn D. Curving argued the cause for appellant (Riker Danzig Scherer Hyland &Perretti, LLP, attorneys; Glenn D. Curving, of counsel; Anne M. Mohan and Alfonse R. Muglia, on the briefs).

Adam J. Petitt argued the cause for respondent (Stradley Ronon Stevens &Young, LLP, attorneys; Adam J. Petitt, of counsel; Robert J. Norcia, on the brief).

Before Judges Alvarez, Geiger, and Mitterhoff.



In this personal injury protection (PIP) reimbursement case, plaintiff Palisades Insurance Company appeals from a February 28, 2020 order granting defendant Horizon Blue Cross Blue Shield of New Jersey's motion for summary judgment and dismissing its complaint with prejudice. Having reviewed the record and considering the applicable law, we affirm.


Plaintiff is an insurance carrier that sells automobile insurance policies including mandatory PIP benefits, which provide payment to its insureds, or medical providers as assignees of its insureds, for treatments of injuries sustained in motor vehicle accidents. Defendant is a not-for-profit corporation providing health insurance benefits to its insureds. Pursuant to N.J.S.A. 39:6A-4.3(d), plaintiff allows its customers to designate their health insurer as primary for payment of medical expenses incurred as a result of an automobile accident.

Plaintiff's insureds M.B, M.T., T.L., and P.M opted to designate defendant to provide medical coverage on a primary basis. Each insured was involved in an automobile accident and received treatment. Despite the designation, each insured and/or their provider sought payment of their medical expenses from plaintiff. With regard to M.B, M.T., and T.L, plaintiff sent letters notifying defendant that its subscribers had submitted expenses related to injuries sustained during motor vehicle accidents, and that under the terms of their policies, defendant was the primary provider of medical benefits. Plaintiff requested confirmation that it would process the claims. After defendant failed to respond to the letters, plaintiff voluntarily paid the claims of M.T., T.L., and M.B.

In P.M.'s case, plaintiff commenced payment upon receipt of the claim. It subsequently realized that the insured had selected the health care as primary designation on their auto policy. P.M. requested confirmation from defendant that it would provide primary coverage for their automobile accident-related injuries. Defendant responded with a letter indicating that the insured's contract permitted only secondary coverage for PIP-eligible expenses. That prompted P.M.'s medical provider to send plaintiff a letter requesting that the insured's coverage designation be changed to PIP as primary. Plaintiff then provided primary coverage for the remaining expenses.

Plaintiff filed a complaint on August 28, 2019, and an amended complaint on September 5, 2019, requesting reimbursement under a theory of subrogation for the medical expenses it paid on behalf of its insureds. Defendant filed an answer on October 9, 2019, but did not respond to a number of ensuing discovery requests. On December 4, 2019, defendant moved for summary judgment and requested that sanctions be imposed against plaintiff's counsel, alleging the amended complaint was frivolous.

In support of its motion, defendant argued that before plaintiff filed this complaint, it had unsuccessfully sought reimbursement in at least ten other cases that presented identical legal questions. In each lawsuit, as here, plaintiff argued that: (1) the insureds elected to have their health insurer act as the primary provider of medical expenses related to automobile accidents, (2) the insureds were enrolled in a health benefits plan provided by defendant; and (3) plaintiff paid PIP benefits to health care providers, despite knowing their policies provided only secondary coverage. In each case, plaintiff argued it had a right to reimbursement under a theory of subrogation, and lost.

On the return date of the motion for summary judgment, defendant argued that the statutory and regulatory schemes which govern the payment of automobile accident-related expenses amongst PIP and health insurers, do not provide any right of recovery to PIP insurers that voluntarily pay claims they are not liable for. Plaintiff contended that the payments were not voluntary because they were made only after its requests for confirmation that the insureds held policies with defendant went unanswered. Because the coverage status of the insureds and whether defendant properly processed their claims remained in dispute, plaintiff argued summary judgment was improper. At the conclusion of the hearing, the judge granted defendant's motion and dismissed plaintiff's amended complaint with prejudice. Sanctions were not imposed. This appeal ensued.


"We review a grant of summary judgment de novo, applying the same standard as the trial court." Woytas v. Greenwood Tree Experts, Inc., 237 N.J. 501, 511 (2019) (citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). Rule 4:46-2(c) provides that a court should grant summary judgment when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."

Self-serving assertions that are unsupported by evidence do not give rise to a genuine issue of material fact. Miller v. Bank of Am. Home Loan Servicing, L.P., 439 N.J.Super. 540, 551 (App. Div. 2015) (quoting Heyert v. Taddese, 431 N.J.Super. 388, 414 (App. Div. 2013)). "Competent opposition requires 'competent evidential material' beyond mere 'speculation' and 'fanciful arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J.Super. 415, 426 (App. Div. 2009) (quoting Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J.Super. 556, 563 (App. Div. 2005)). We review the record "based on our consideration of the evidence in the light most favorable to the parties opposing summary judgment." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995).


Plaintiff argues the motion judge erred in concluding that subrogation does not exist as to PIP-to-health insurer reimbursement claims. It acknowledges that the New Jersey Automobile Reparations Reform Act (NoFault Act), N.J.S.A. 39:6A-1 to -35, does not expressly permit inter-company reimbursements amongst PIP and health insurers, but contends the insurance industry has developed a practice, which defendant refuses to honor, of voluntarily providing reimbursements when overpayments are made. Further, plaintiff alleges that the No-Fault Act simply does not contemplate a situation where a health insurer refuses to acknowledge or address a dispute. This puts PIP insurers between a rock and a hard place in that PIP providers are subject to penalties if prompt payments are not made. Accordingly, plaintiff suggests the No-Fault Act does not preclude health insurance-to-PIP reimbursement, and it should be permitted to proceed with its claim.


Prior to 1972, "insurers were free to file suit against other insurers to recover payments for medical expenses based on the common-law right of subrogation." State Farm Mut. Auto. Ins. Co. v. Licensed Beverage Ins. Exch., 146 N.J. 1, 6 (1996). That created, however, "an inefficient means of compensation since it required expensive and time-consuming litigation, and . . . would not compensate drivers whose own...

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