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Advanced Med. Care, PLLC v Travelers Prop. Cas. (2005 NY Slip Op 50368(U))
[*1]


Decided on March 23, 2005
Civil Court of the City of New York, Kings County

32970/04
Eileen N. Nadelson, J.
Plaintiff, a medical provider, instituted this action to recover first party no-fault benefits from Defendant insurer. Defendant moved for summary judgment, alleging that Plaintiff had originally submitted the claim to the American Arbitration Association's No-Fault Tribunal, and therefore the present action is barred.
The arbitration of this claim was heard on June 5, 2003, and the arbitrator found the assignment of benefits to be invalid. The arbitrator denied the claim without prejudice. Rather than resubmitting this claim to the arbitration panel, Plaintiff instituted this present action on December 9, 2003.
In support of its position that this plenary action is barred by Plaintiff's initial election to
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submit the claim to arbitration, Defendant relies exclusively on Roggio v. Nationwide Mutual Insurance Co., 106 AD2d 3, 484 N.Y.S. 2d 382 (3d Dept. 1985), in which the Appellate Division held that a plaintiff who initially opts for arbitration cannot not thereafter resort to a plenary suit for resolution of new claims arising out of the same accident. The court reasoned that to allow a [*2]party to sue in court because of a disappointment with the manner in which initial claims were handled in arbitration would constitute a "flitting between forums" which is to be discouraged, if not condemned.
In its reply, Plaintiff attempts to distinguish the Roggio decision from the instant facts. Plaintiff points out that Roggio was appealed and the Court of Appeals' affirmation is based on the fact that the plaintiff submitted claims for a new medical bill arising from the same accident to the court, not the submission of the identical claim that was dismissed by the arbitrator. Although this is patently true, the Court of Appeals holding that "a claimant denied recovery in arbitration as to certain medical bills cannot then turn to the court seeking recovery of later medical bills arising from the same accident," the court further stated that an "option to litigate after disappointment in arbitration is obviously inconsistent with" the legislative purpose of the No-Fault law. Roggio v. Nationwide Mutual Insurance Co., 66 NY2d 260, 496 N.Y.S. 2d 404 (1985). Therefore, the Court of Appeals insinuated that once arbitration is selected as the forum to resolve No-Fault disputes, that selection precludes litigation of any claim arising out of the same accident.
In the years following the Roggio decision, the courts have been presented with similar issues on several occasions. In Monroe v. Providence Washington Insurance Co., 126 AD2d 929, 511
N.Y.S. 2d 449 (3d Dept. 1987), the court stated that the doctrines of res judicata and collateral estoppel are applicable to arbitration awards, and will bar subsequent relitigation of an issue or claim decided by arbitration. The court further held that an arbitration award will bar subsequent litigation for first party benefits even if the medical expenses for which benefits are sought are incurred after the arbitration. However, the court did permit the litigation of claims that were not covered by first-party benefits; to wit, damages allegedly caused by the insurer failing to pay the first party benefits awarded by the arbitrator.
In Mack v. State Farm Mutual Automobile Insurance Co., 251 AD2d 1083, 675 N.Y.S. 2d 575 (4th Dept. 1998), the court found summary judgment in favor of an insurer to be proper when the insurer was sued for No-Fault benefits by an insured who previously elected an arbitration forum. The court said that such election waives the insured's right to commence an action based on claims arising out of the same accident.
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The courts have consistently held that an election to arbitrate a No-Fault claim forecloses litigation of subsequent claims arising out of the same accident. Gaul v. American Employer' Insurance Co., 302 AD2d 875, 753 N.Y.S. 2d 782 (4th Dept. 2003), Gibeault v. Home Insurance Co., 221 AD2d 826, 633 N.Y.S. 2d 678 (3d Dept. 1995), Gomez v. GEICO , 2005 NY Slip Op. 50111U, 2005 NY Misc. Lexis 194 (2d Dept. 2005).
Plaintiff's argument rests on the fact that the claim in question in the instant case is not a subsequent claim arising out of the same accident, but is the exact claim originally submitted to the arbitrator who dismissed the action. Apparently, Defendant's reasoning is that the dismissal of the claim totally erases the submission of the dispute to arbitration, thereby leaving the [*3]medical provider with the option to elect between arbitration and litigation anew. Not only does this argument seem specious in the face of the above-cited decisions, in which even subsequent claims are bound by the initial forum selection, but is contrary to decisions of this judicial department.
In Rockaway Boulevard Medical P.C. dba Queens Diagnostic Center aao Marvin Bernard v. Progressive Insurance, 2003 NY Slip Op. 50938U, 2003 NY Misc. Lexis 660 (App. Term 2003), the court held that in a situation in which the arbitrator dismissed a claim without prejudice to renew the application for arbitration upon production of a proper assignment, the medical provider, once having chosen arbitration, could not thereafter resort to the courts. The appellate court granted summary judgment to the insurer.
Based on the foregoing, this court holds that once a No-Fault claim is submitted to arbitration, regardless of the result of that submission, that claim and all subsequent No-Fault claims arising out of the same accident are bound by that submission and the parties may not resort to the courts to adjudicate their rights.
Summary judgment granted to Defendant.
Dated: March 23, 2005

EILEEN N. NADELSON, J.C.C.
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