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Should You Reject a New Jersey Arbitration Award and File a Demand for a Trial De Novo? What Are The Pros and Cons?

In the New Jersey Superior Court, personal injury lawsuits are subject to mandatory arbitration pursuant to Rule 4:21A-1. These suits would include automobile accidents and all other personal injury matters except professional malpractice and products liability lawsuits. Once an arbitration award is entered, a decision needs to be made whether to accept or reject the award. What are the consequences of this decision?

While it is mandatory to participate in the arbitration hearing, any party may reject the arbitration award by filing with the court a demand for a trial de novo within 30 days of the award and paying a filing fee of $200. If the award is rejected, the court will then schedule the case for a trial. Hence, while it is mandatory to participate in the arbitration, the award is not binding if either party rejects the award. Pursuant to Rule 4:21A-6, a trial is to be scheduled within 90 days of the rejection of the award.

However, under this rule, the party rejecting the award could be subject to an award of reasonable costs incurred by the other party under certain circumstances. The “rejecting” party may be liable to pay the reasonable costs, including attorney’s fees, incurred after rejection of the award by those parties not demanding a trial de novo.

No costs will be awarded if the party demanding the trial de novo obtains a verdict at least 20% more favorable than the award. Or, if the award entered no award for monetary damages, no costs will be awarded if the party demanding the trial de novo obtains a verdict of at least $250. Thus, the award of costs will depend upon the ultimate verdict, as compared to the arbitration award.

Costs to be awarded under this court rule, however, are relatively modest. Attorney’s fees to be awarded shall not exceed $750 in total, nor $250 per day. Compensation for witness costs, including expert witnesses, shall not exceed $500. And, if the court is satisfied that an award of reasonable costs will result in substantial economic hardship, it may deny an application for cost or award reduced costs.

Most cases will either settle within the 30 day time period following the award or one of the parties will file for a trial de novo. But, what happens if the case does not settle within that time period and no party files a demand for a trial de novo?

Within 50 days after the filing of the award, any party may move for confirmation of the arbitration award and entry of judgment thereon. The judgment of confirmation shall include prejudgment interest. If no party files for a trial de novo and no party moves to confirm the award within 50 days of the filing of the award, then the court would enter an order dismissing the action.

In practice, no party will move to confirm the award within the first 30 days because either the parties will be negotiating or considering a settlement or it would simply prompt the other party to reject the award and file a trial de novo request. However, it is important to realize that, if you are satisfied with the award, if you do not settle the case within 30 days of the arbitration award, there may be consequences.

After the 30 day time period, the other party can move to confirm the award and request the entry of a judgment. At that point, you may not be able to negotiate settlement terms, both monetary and nonmonetary, including obtaining a release or other nonmonetary terms. Also, you could be subject to the payment of prejudgment interest (if the other party requests it, it is mandatory for the court to award it), which would be added on top of the arbitration award that was entered. Last, it means that a judgment is entered against the defendant, which then requires a warrant to satisfy that judgment to reflect on the court’s docket that the judgment has been paid. If the case is being defended through an insurance company, the carrier must understand that the consequence of permitting the award to be confirmed could result in a judgment against its insured.

Thus, all of these factors must be taken into consideration when deciding whether to accept or reject an arbitration award within that 30 day time period following the arbitration hearing.

Whether Plaintiff Qualifies as an Insured Under UIM Endorsement Not Subject to Arbitration

Plaintiff Carole Zelig was injured in an automobile accident, while a passenger in a vehicle operated by a friend. She settled her personal injury claim against the tortfeasor and then filed an underinsured motorist (UIM) claim against the defendant Tower Group Companies, the carrier for a business partially owned by plaintiff. In Zelig v. Tower Group Companies, 2018 N.J. Super. Unpub. LEXIS 1217 (App. Div. May 25, 2018), the issue was whether the plaintiff qualified as an “insured” and should that determination be made by the court or by an arbitrator.

Defendant Tower Group Companies (“Tower”) issued its policy to This and That Uniform, LLC, a company partially owned by plaintiff. The legal issue to be determined was whether under the terms of the UIM endorsement the plaintiff was an “insured” under the basic insuring clause in the endorsement. Both parties filed for a summary judgment and the trial court judge ruled that the issue should be resolved in arbitration with the arbitrator resolving this legal question.

On appeal, the defendant carrier argued that the judge should not have required the parties to arbitrate whether the plaintiff qualifies as an “insured” under the endorsement. Defendant had asserted that plaintiff was not an “insured” because she was not occupying a covered vehicle as described in the endorsement. Rather, it contended this issue was a legal question that should have been decided by the judge.

The Appellate Division declined to exercise original jurisdiction to decide this issue. However, the Court agreed with the defendant carrier that the judge should have made this determination. The endorsement stated that “disputes concerning coverage . . . may not be arbitrated.” Thus, the Appellate Division found this dispute concerned coverage and reversed and remanded back to the trial court judge to decide the issue. The Court held that this issue was not one that should have been referred to an arbitrator to decide.

Uber Arbitration Clause Accessed through Hyperlink to Contract with Driver Found Enforceable

Plaintiff Jaswinder Singh filed a lawsuit against Uber Technologies Inc. (“Uber”), claiming that Uber misclassified him and other similarly situated New Jersey Uber drivers as independent contractors, failed to pay overtime, and required drivers to pay for significant business expenses. Instead of filing an answer, Uber filed a motion to dismiss the complaint and compel arbitration based upon an arbitration clause found in the online contract document. The issue for the federal district court in the published decision of Singh v. Uber Technologies, Inc., 2017 U.S. Dist. LEXIS 12033 (D.N.J. Jan. 30, 2017) was whether that arbitration clause was enforceable.

To become an Uber driver, the plaintiff had to register with the Uber App to use its “uberX” platform, providing him an option to accept ride requests from prospective passengers and transport them for a fare. To do so, plaintiff was required to electronically accept the software agreement (the “Raiser Agreement”) that was submitted to him by Raiser, LLC, a wholly owned subsidiary of Uber that operates as its technology service provider.

After logging onto the Uber App, the plaintiff was given the opportunity to review the Raiser Agreement by clicking on a hyperlink. To advance past the first screen, the plaintiff had to confirm that he had reviewed and accepted the Raiser Agreement by clicking “YES, I AGREE.” After clicking on the “YES, I AGREE,” the plaintiff was asked a second time to confirm that he reviewed and agreed to the terms of the Agreement.

Plaintiff was given as much time as he found necessary to review this Agreement before accepting it. In fact, he did not click acceptance until about 3 months after it was made available for his review. After he accepted it, it was uploaded to his driver’s portal, where he could access the Agreement at his leisure either online or print out a hard copy.

On the first page of the Raiser Agreement, in bold, was a voluntary arbitration provision, which required that all disputes with the Company be resolved through arbitration but permitted the plaintiff to opt out of the arbitration provision. Unless the driver opted out, the clause obligated the driver to arbitrate all disputes arising out of the Raiser Agreement, including disputes as to breach of contract, wage and hour, and compensation.

Further, this provision made it clear that all such disputes would be resolved through binding arbitration and not by way of court or jury trial or by way of class action. However, arbitration was not mandatory, and the Agreement permitted the driver to opt out of arbitration by notifying the Company within 30 days by electronic mail, regular mail, or hand delivery.

Despite accepting the terms of the Agreement and failing to opt out, plaintiff argued that the arbitration provision was unenforceable. He claimed that he never received a copy, it violated the Federal Arbitration Act, the National Labor Relations Act, and that it was unconscionable.

The Court noted federal law presumptively favors the enforcement of arbitration agreements. However, it had to determine (1) whether the parties entered into a valid arbitration agreement and (2) whether the dispute falls within the scope of the arbitration agreement.

Plaintiff argued that Uber did not provide to him a copy of the Raiser Agreement. He claimed that providing access to the Agreement is not the same as providing a copy of the document and, hence, he cannot be bound to arbitrate any disputes with Uber. The District Court rejected this argument.

The Court noted that in the “internet era,” agreements are often “maintained, delivered and signed in electronic form” with a separate document incorporated through a hyperlink. To determine if an agreement is enforceable, the court looks at whether users were provided with a “reasonably conspicuous notice of the existence of contract terms” and whether the user registered an “unambiguous manifestation of assent to these terms.” The court must then determine if the online agreement provided this “reasonable notice” so that the terms and conditions would apply.

If this condition is met, a party will be bound by the hyperlinked agreement, even if the party did not review the terms and conditions before agreeing to them. To hold otherwise would be contrary to the well settled principle that a party is bound by the terms of contract, even if the party fails to read the contract before he signs it.

The District Court found that the plaintiff was provided with reasonable notice of the existence of the terms and conditions of the hyperlinked Raiser Agreement. To gain access to the Uber App, the plaintiff was advised in capital lettering that he must review and agree to the Raiser Agreement. The hyperlink button was not buried but, rather, was prominently displayed below the instruction button.

Plaintiff did admit that he accessed the Uber program, which had a link to the contract, but he did not click on the link. Regardless, he unambiguously agreed to its terms and conditions twice by clicking on the “YES, I AGREE” buttons. By these actions, the Court ruled that the plaintiff had demonstrated his intent to be bound by this Agreement. Thus, the Court found that Uber’s notice as to the Raiser Agreement was sufficient and the plaintiff was bound by its terms and conditions, including the arbitration provision.

The Court rejected all of the other arguments made by plaintiff to bar its enforcement under the FAA, the NLRA, or on the basis of it being unconscionable. The Court found the agreement to arbitrate was valid and enforceable. Because no party moved for a stay, the Court granted the order to compel arbitration and dismissed the case.

Beware of Carelessly Drafted Employee Arbitration Agreements

Many employers today utilize employee arbitration agreements as a means of eliminating potential court litigation. In place of pursuing legal claims in a judicial forum, the arbitration agreement substitutes a private resolution mechanism, such as utilization of an arbitrator, to resolve employee legal grievances. Arbitration agreements are an effective way of keeping employee disputes outside of the public realm and, for many employers, there is a significant value in maintaining the privacy of such matters. Arbitration also in most instances is much less expensive than defending claims in a judicial forum. While arbitration agreements in the employment setting are enforceable here in New Jersey, they have to be drafted correctly, or otherwise, a court will not enforce them, as one New Jersey employer found out recently in a case that resulted in a significant appellate court decision addressing the specific requirements to make such agreements enforceable.

In Hernandez v. Fancy Heat Corporation, 2016 N.J. Super. Unpub. LEXIS 1805 (App. Div. August 1, 2016), the plaintiff brought suit claiming that she had been sexually harassed by a coworker. Four (4) days after allegedly reporting the harassment to one of her supervisors, the employee was terminated. The company claimed plaintiff was terminated for performance related reasons, but she asserted to the contrary that the termination happened in retaliation for her reporting the alleged sexual harassment.

The employee filed a complaint in New Jersey Superior Court alleging discrimination under the New Jersey Law Against Discrimination, retaliation, common-law negligence, and violation of the New Jersey Conscientious Employee Protection Act.  The employer sought to dismiss the case based on an arbitration provision included in the employment application that the plaintiff had executed prior to her hiring by the employer. The arbitration clause of the employment application specifically advised the plaintiff that all disputes related to her employment were to be addressed through final and binding arbitration before a neutral arbitrator. The arbitration clause likewise gave specific examples of the kinds of claims that the employee would need to pursue through arbitration, but nowhere in the arbitration clause did it mention that agreeing to arbitration meant that plaintiff would be giving up her right to a jury trial on such employment related claims.

The trial court enforced the arbitration clause, finding that the application’s provision encompassed the claims that plaintiff was seeking to pursue in court. This decision was appealed by the plaintiff, and the New Jersey Appellate Division reversed the trial court’s decision. In reversing the dismissal of plaintiff’s complaint, the Appellate Division ruled that, in order for an arbitration provision to be enforceable, it must specifically alert an employee that agreeing to arbitration means that they are giving up the constitutional right to have legal claims decided in a court of law with the possibility of a jury trial.  This is because, in the Appellate Division’s view, not every employee understands what potential rights are being waived when agreeing to arbitrate employment related claims. Thus, while the Appellate Division ultimately noted that no particular words are required to necessarily make an arbitration agreement enforceable, at a minimum, the agreement must explain that it is a substitute for the right to have the employee’s claim decided in a court of law. Without such an explanation, the arbitration clause will not be enforced.

In light of the Hernandez decision, it is wise for every employer to review all arbitration provisions that may exist in employment applications, employee handbooks, employment agreements or other related type documents to ensure that, at a minimum, the arbitration provision specifically notifies employees that they are giving up their right to have their legal claims decided in a court of law. Such notification should be drafted in a clear and unambiguous fashion so, if ever there is a need to enforce the arbitration right, there will be no reason for the court to deprive the employer of its substitute forum for resolution of the employee’s claim.

Arbitration Clause in Invoice for Medical Records from Medical Provider to Patient’s Attorney Found Unenforceable by New Jersey Court

Medical Records Online, Inc. (MRO) is a third party medical records processor of requests for medical records from hospitals and physicians, including Kennedy Memorial Hospitals (“Kennedy”). Plaintiff, Bernetich, Hatzell & Pascu, LLC (BH&P), is a personal injury law firm who sought to obtain records from Kennedy on behalf of a prospective client. MRO’s invoice for such records contained an arbitration clause if BH&P disputed the invoice. In Bernetich, Hatzell & Pascu, LLC v. Med. Records Online, Inc., 445 N.J. Super. 173 (App. Div. 2016), BH&P filed a class action, alleging that MRO overcharged BH&P and other requested providers. MRO responded by filing a motion to compel arbitration. The issue in this case was whether that arbitration clause was enforceable under New Jersey law.

BH&P had sent Kennedy Hospitals a medical records request on behalf of their prospective client, J.H., who authorized BH&P to obtain his medical records. In response, MRO sent BH&P an invoice for $204.19. MRO required prepayment before it would release the records. The invoice contained an arbitration clause that provided if BH&P disputed the invoice, it had to arbitrate its dispute.

MRO retrieved 271 pages of records. Its fees consisted of a $10 search and retrieval fee, $1.19 for postage and $193 per page fees. The fees were calculated at the rate of $1.00 per page for pages one through 100 and 25 cents a page for additional pages.

After paying the invoice, BH&P filed a class action suit, claiming that MRO overcharged it and other records requesters. In the suit, BH&P asserted that patients and their authorized agents are legally entitled to their medical records and that health care providers may only charge a cost-based fee.  BH&P claimed that MRO’s per page fee was unrelated and far exceeded its actual costs in retrieving electronically stored medical records and transferring them onto a disk. It claimed that these practices violated the New Jersey Consumer Fraud Act, among other claims. MRO, in response, filed a motion to compel arbitration or, in the alternative, to dismiss for failure to state a claim.

The trial court denied MRO’s motion to compel arbitration based upon the Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430 (2014) case, holding that the invoice was a consumer contract that did not put BH&P on notice that by paying the invoice, it was waiving its right to litigate.

On appeal to the New Jersey Appellate Division, MRO contended that the arbitration provision was enforceable, that this invoice was not a consumer contract, and that BH&P waived any objection by paying the invoice. BH&P disputed these contentions and, further, argued that the arbitration provision was unenforceable because it was unilateral. Because MRO had a legal duty to provide the requested records, BH&P argued that this provision was unlawful.

The Appellate Division noted that a patient has a qualified privilege under state and federal law to inspect or obtain copies of his medical records. Based upon New Jersey regulations, a hospital may only charge its actual costs incurred to provide records requested by its patient. The per page amounts set forth in the regulations only establish the maximum a patient may be charged.

As for whether the arbitration clause was enforceable, the court applied fundamental principles of contract law. To be enforceable there must be consideration, which is essential to form a valid contract. Consideration means both sides must “get something” out of the contract.

The requirement for consideration is not met by fulfilling a pre-existing duty. In this case, MRO had a pre-existing statutory duty to provide medical records upon the request of a patient or the patient’s legally authorized representative. Because BH&P had a pre-existing right to the records for a cost-based fee, it did not “get something” of the alleged agreement to arbitrate that it did not already have. Further, MRO was providing nothing in exchange for an agreement to arbitrate because it was already obligated to provide the records. Thus, the Appellate Division found that the agreement to arbitrate lacked consideration. Accordingly, it held that BH&P may not be forced to arbitrate its dispute with MRO.

The court did not even reach the issue of the contract being unenforceable under Atalese because it found that the clause failed due to lack of consideration. The Appellate Division affirmed the trial court, finding the arbitration provision unenforceable.

Arbitration Clause Ruled Invalid in Educational Institute’s Enrollment Agreement

An arbitration agreement can be enforceable in a consumer contract if it clearly and unambiguously explains that the consumer is giving up the right to pursue relief in a judicial forum. In the recent New Jersey Supreme Court case, Morgan v. Sanford Brown Institute, 2016 N.J. LEXIS 563 (2016), the Court considered the enforceability of an arbitration clause in the enrollment agreement of Sanford Brown Institute, a private educational institution offering medical-related training programs. The Court also decided whether the court or the arbitrator should determine the arbitrability of the claims filed by the plaintiffs against Sanford Brown.

The plaintiffs, Annemarie Morgan and Tiffany Dever, filed suit against defendants Sanford Brown Institute and Career Education Corporation, claiming that misrepresentations and deceptive business practices of the defendants and certain administrators at the school led them both to enroll in the school’s ultrasound technician program. The enrollment agreement signed by both plaintiffs contained a lengthy arbitration clause, which required that any disputes relating to the student’s enrollment would be resolved through an arbitration with AAA.

In response to the lawsuit, the defendants filed a motion to compel arbitration. However, they did not make it clear at the trial court level that they wanted an arbitrator, rather than the court, to decide whether the parties agreed to arbitration. The trial court denied the motion on the basis that the arbitration provision did not inform the plaintiffs that they were waiving their statutory remedies and because the provision conflicted with the remedies available under the Consumer Fraud Act.

On appeal to the Appellate Division, that court reversed the trial court and ruled that the trial court erred in failing to enforce the arbitration agreement’s provision that the arbitrator would decide the issue of arbitrability. It determined that the suit should be submitted to arbitration and the arbitrator should decide as an initial issue whether the dispute was arbitrable.

In further appealing this decision to the New Jersey Supreme Court, the plaintiffs contended that they did not understand that the arbitration provision denied them the right of access to a judicial forum and a jury trial. They claimed that the arbitration provision was ambiguous and did not provide the information needed for them to make an effective knowing and voluntary waiver of their rights. More specifically, they argued that the enrollment agreement failed to explain that arbitration was a substitute for their right to seek relief in court.

The Supreme Court reversed the Appellate Division. While this appeal was pending before the Supreme Court, the Court decided the case of Atalese v. U.S. Legal Servs., 219 N.J. 430 (2014), which set forth the standard for the enforceability of an arbitration clause in a consumer contract. For an arbitration clause to be enforceable, the clause must clearly and unambiguously state that the consumer would be giving up the right to pursue relief in a court of law.

As a further threshold issue, the Supreme Court reviewed Sanford Brown’s delegation clause. A delegation clause in an arbitration provision would state whether the arbitrator or the court would decide the initial issue of the validity of the provision and whether the dispute was subject to arbitration.

The Court noted that, unless the parties have clearly delegated to an arbitrator the decision as to whether the parties have agreed to resolve the dispute through arbitration, the issue is for a court to decide. Here, the Sanford Brown agreement did contain a “delegation clause,” which stated that “any objection to arbitrability or the existence, scope, validity, construction, or enforceability” of the agreement to arbitrate would be resolved pursuant to the arbitration agreement. The defendants argued that this case was distinguishable from Atalese because it contained a delegation clause, which required an arbitrator, not the court to decide the arbitrability of the dispute.

The Supreme Court found that that state contract law contract principles applied to the enforceability of the agreement, as well as the purported delegation clause. For an agreement to be enforceable, there must be a meeting of the minds based upon an understanding of the contract’s terms. The meaning of arbitration is not self-evident to the average consumer who would not understand that arbitration is a substitute for the right to pursue a claim in court – unless it is clearly explained.

The Court held that the Sanford Brown enrollment agreement and its delegation clause both suffered from the same fatal flaw in that they did not clearly explain to the plaintiffs that they were waiving their right to seek relief in court for a breach of the enrollment agreement or a statutory violation under the Consumer Fraud Act. Hence, the Court found that both the arbitration provision and the purported delegation clause were unenforceable.

Because there was some confusion over the challenge to the defendants’ delegation clause, the Court added some important guidance for future litigants seeking to enforce a delegation clause in an arbitration agreement. The party seeking to enforce a delegation clause in an arbitration agreement should clearly argue before the motion court that the decision as to whether the parties agreement to arbitrate should be decided by the arbitrator, not the court. On the flip side, the party opposing the enforceability of the arbitration clause must specifically challenge the delegation clause. The failure to challenge the delegation clause will result in the arbitrability being decided by the arbitrator, not the court.

Can You Enforce Your Arbitration Clause?

The odds are that your company has an employee handbook that governs the workplace.  You also most likely (hopefully) have a clause in your handbook indicating that the handbook does not create a contract between the employer and employee and the terms of the handbook can be changed at any time without notice to the employee.  Since it has become common practice to prefer arbitration over dealing with state and/or federal courts, many of you may also have a section of the handbook requiring arbitration of any employment claims that arise between the employer and the employee.  If this is the case, then the following information is important for you to understand.

A recent published New Jersey Appellate Division decision has upended employment law in New Jersey.  Specifically, the Appellate Division held on January 7, 2016, that an employee handbook that contains a clause stating that the “rules, regulations, procedures and benefits . . . are not promissory or contractual in nature and are subject to change by the company,” and in addition contained an arbitration clause purporting to waive the employee’s right to sue in court, did not in fact waive the employee’s right to file suit in federal or state court.  Without a clear and unambiguous waiver of the right to sue, an employee cannot be forced to arbitrate.

The case, Morgan v. Raymours Furniture Co., Inc., Dkt. No. A-2830-14T2 (App. Div. Jan. 7, 2016), involves a former employee of Raymours Furniture Company (“Raymours”) who instituted a complaint in state court alleging violations of the Law Against Discrimination and wrongful termination.  Initially when the employee first complained of alleged discrimination, the employer attempted to have the employee sign a standalone arbitration agreement or face termination.  When the employee refused to sign the standalone arbitration agreement, he was terminated.  The employee handbook did contain an arbitration clause.  The employee subsequently filed a complaint in state court and Raymours filed a motion to dismiss the state court complaint and compel arbitration.

In denying Raymour’s motion to compel arbitration, the Appellate Division noted that the employer could not have it both ways.  The employer could not argue that the handbook was not a contract between the parties, but at the same time argue that the handbook did contain a full waiver of an employee’s right to file a lawsuit in state or federal court.  The Appellate Division stated,

In this setting, it is simply inequitable for an employer to assert that, during its dealings with its employee, its written rules and regulations were not contractual and then argue, through reference to the same materials, that the employee contracted away a particular right.

Moreover, the court noted:

In any event, our Supreme Court has made clear that an employee in this circumstance must “clearly and unambiguously” agree to a waiver of the right to sue.  By inserting such a waiver provision in a company handbook, which, at the time, the employer insisted was not “promissory or contractual,” an employer cannot expect — and a court, in good conscience, will not conclude — that the employee clearly and unambiguously agreed to waive the valued right to sue. And, by the same token, in obtaining the employee’s signature on a rider, which stated only that the employee “received” and “underst[ood]” the contents of the company handbook or rules and regulations, the employer cannot fairly contend the employee “agreed” to a waiver of the right to sue that might be found within those materials.

So what does this court decision mean for you if your handbook contains an arbitration clause?  This decision means that if you want to be able to enforce an arbitration clause, then you as the employer must obtain an employee’s signature on a standalone arbitration agreement.  Given this change in the law governing employee handbooks, it is an opportune time to undergo a thorough review of your employee handbook to bring your handbook into compliance with the law in New Jersey.

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