PER CURIAM.
Plaintiff Juliet Ding appeals the Law Division's March 22, 2013 order granting summary judgment to defendant USAA Casualty Insurance Company (USAA). We affirm.
We discern the following facts and procedural history from the record on appeal.
Ding is a New Jersey resident who obtained private-passenger automobile insurance coverage through USAA. Her policy included single-limit uninsured and underinsured coverage (UIM) in the amount of $300,000. The policy also provided that either party could request the arbitration of claims under the policy, but that both parties had to consent to arbitration.
Ding was injured in a motor vehicle accident in Pennsylvania on June 17, 2006. In March 2008, she filed suit against the other driver in Pennsylvania. The attorneys handling the Pennsylvania litigation agreed to seek its resolution through alternative dispute resolution (ADR). In November 2009, Ding's Pennsylvania attorney notified USAA of the planned ADR proceeding and invited its participation. He wrote: "I thought you might want to participate in this hearing and resolve everything with one hearing." In December, USAA declined to participate.
Later in December, Ding's attorney again wrote to USAA, stating that it was the
The attorney concluded by asserting that he would assume that USAA's silence indicates "that you prefer to litigate again after we have completed any settlement per hearing." USAA again declined to participate.
Ding's attorney wrote a third time in January 2009, advising USAA that the damages were expected to be several hundred thousand dollars, that the other driver had only $100,000 in coverage, and that the driver's attorney had suggested that USAA "might find it advantageous to participate in the arbitration . . . to try to minimize the legal expenses for USAA and to have the whole matter resolved in one arbitration." He added that, absent USAA's participation in the Pennsylvania arbitration, Ding would seek arbitration against USAA in New Jersey.
The Pennsylvania arbitration resulted in a damages award of $200,000 to Ding and $1000 to her husband. Ding and the driver then settled the Pennsylvania litigation on the basis of the arbitration award and the driver's policy limit, and the action was dismissed.
Ding retained New Jersey counsel, who wrote to USAA in July 2011, requesting that USAA choose an arbitrator as contemplated by the policy. USAA declined to arbitrate, pointing to the fact that the policy required the consent of both parties.
In January 2012, Ding filed the present action. She sought (1) an order requiring USAA to appoint an arbitrator and (2) damages in the amount of $200,000, which was characterized as "the net balance due to [her] in excess of [the] $100,000" received from the driver. The complaint did not allege that USAA was bound by the arbitration award in Pennsylvania. That position would have been inconsistent with the claim for $200,000 in damages, inasmuch as the "net due" under the arbitration award would have been only $100,000 had it been binding on Ding and USAA.
Following discovery and non-binding arbitration in New Jersey, in which it was determined that Ding's injuries did not exceed the $100,000 coverage of the driver's policy, Ding moved for summary judgment. She argued that USAA was bound by the Pennsylvania arbitration award under principles enunciated in
The judge denied Ding's motion, finding that
On appeal, Ding argues that the motion judge erred in refusing to apply the entire controversy doctrine and
The entire controversy doctrine is implemented by
In
The doctrine applies to "`matters actually litigated'" as well as matters "`that
Similar concerns were involved in the Supreme Court's decision in
On notice to General Accident, Zirger's counsel in the underlying action against the tortfeasor decided to try his claim for damages to a jury, rather than settling for the $15,000 policy limit. General Accident neither objected to nor sought to intervene in the damages trial. The jury awarded $400,000 in damages. General Accident refused to pay Zirger the amount of the jury award reduced by a $15,000 recovery from the tortfeasor's insurer and insisted on arbitration under the policy. We held that General Accident's consent to Zirger's pursuit of a jury verdict did not constitute a waiver of its right to arbitration. Zirger appealed.
The Supreme Court reversed, invalidating the arbitration clause to the extent that it required an arbitration that was duplicative of the damages trial.
Ding's argument is that the principles underlying the entire controversy doctrine and
First, in inviting USAA to participate in the Pennsylvania ADR proceeding, Ding's Pennsylvania attorney never suggested that USAA would be bound by the result. Even more significantly, he specifically acknowledged that USAA's failure to participate would result in further proceedings in New Jersey.
Second, the Pennsylvania action, unlike the underlying New Jersey litigation involved in
Finally, Ding's complaint in New Jersey sought to recover more than the difference between the $100,000 paid by the driver's insurer and the $200,000 damages established by the ADR process. Instead, Ding initially sought to recover the full amount of her UIM coverage, minus the Pennsylvania recovery. In other words, Ding originally sought to do what she now criticizes USAA for doing, to re-litigate the amount of damages in New Jersey in the hope that she would obtain a larger damages award than the ADR award in Pennsylvania.
Our review of the record and the applicable law convinces us that Judge Paul Innes correctly determined that USAA was not bound by the ADR proceedings in Pennsylvania and that
Affirmed.