Generally, a party must bring all “ripe” claims in one court action. Rule 4:30A of the New Jersey Rules of Civil Procedure provides “[n]on-joinder of claims required to be joined by the entire controversy shall result in the preclusion of the omitted claims to the extent required by the entire controversy doctrine.” The reasons for this principle are judicial economy and fundamental fairness to the parties, who are expected to have “one bite at the apple.”
Insurance companies often raise entire controversy in New Jersey PIP arbitrations, and the issue presented is whether there is any place for this doctrine in the more informal arbitration practice, and if it does apply, should it apply to a much lesser extent than one would find in the more formal judicial setting.
Initially, it is important to recognize the entire controversy doctrine is an equitable doctrine. This means it is a doctrine that could or could not be invoked by the decision maker as their sense of justice sees fit. It enables the arbitrator to consider all relevant factors in making a determination of whether it would be fundamentally fair to deprive a provider from being heard for different treatment rendered to a patient when other treatment was already adjudicated in arbitration.
Factors that militate against applying entire controversy in New Jersey PIP arbitration are the nature of treating patients. Providers usually render ongoing treatment to patients, and by its very nature, treatment is piecemeal. In addition, providers may use more than one counsel for seeking redress, which makes it more likely different portions of treatment will handled by different attorneys. Finally, insurance companies generally expect providers to use their internal appeal procedures. Certainly a claim should not be barred under the entire controversy doctrine if it was still being appealed when the prior action took place.
Notwithstanding the above, we caution our providers to be careful and to make sure they include all ripe dates of service when they ask counsel to handle a file. Providers should also advise counsel of additional dates of service, to help make sure all claims that are ripe are included in arbitration. After all, it’s better to take one big bite of an apple than to nibble and thereby risk being prevented from pursuing all treatment rendered to a patient.