A M E R I C A N A R B I T R A T I O N A S S O C I A T I O N NO-FAULT/ACCIDENT CLAIMS AWARD OF DISPUTE RESOLUTION PROFESSIONAL

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1 CASE NO. 18 Z A M E R I C A N A R B I T R A T I O N A S S O C I A T I O N NO-FAULT/ACCIDENT CLAIMS In the Matter of the Arbitration between (Claimant) Amica Ins. (Respondent) AAA CASE NO.: 18 Z v. INS. CO. CLAIMS NO.: L D DRP NAME: James H. Garrabrandt NATURE OF DISPUTE: Eligibility AWARD OF DISPUTE RESOLUTION PROFESSIONAL I, THE UNDERSIGNED DISPUTE RESOLUTION PROFESSIONAL (DRP), designated by the American Arbitration Association under the Rules for the Arbitration of No-Fault Disputes in the State of New Jersey, adopted pursuant to the 1998 New Jersey Automobile Insurance Cost Reduction Act as governed by N.J.S.A. 39:6A-5, et. seq., and, I have been duly sworn and have considered such proofs and allegations as were submitted by the Parties. The Award is DETERMINED as follows: Injured Person(s) hereinafter referred to as: YR. 1. ORAL HEARING held on February 10, ALL PARTIES APPEARED at the oral hearing(s). ALL PARTIES appeared telephonically. 3. Claims in the Demand for Arbitration were NOT AMENDED at the oral hearing (Amendments, if any, set forth below). STIPULATIONS were not made by the parties regarding the issues to be determined (Stipulations, if any, set forth below). 4. FINDINGS OF FACTS AND CONCLUSIONS OF LAW: This matter arose out of a motor vehicle accident that occurred on February 3, 2003 and is, therefore, subject to AICRA. YR was a passenger in a motor vehicle owned, and being operated by a L... A. H..... (hereinafter "LAH") when it was rear-ended by another vehicle. YR was injured in the accident. Claimant treated YR for her injuries and now seeks reimbursement in the amount of $5, for dates of service March 19, 2003 through August 27, 2003.

2 CASE NO. 18 Z Claimant, as assignee for YR, seeks reimbursement under the PIP benefits coverage of an automobile insurance policy issued by Respondent to YR's mother, H.... R (hereinafter "HR"), and in full force and effect at the time of the accident. Claimant does so on the basis that YR was a resident relative of HR at the time of the accident. Respondent denied PIP payments because this matter was under investigation. At the time of the accident, HR resided at th Street, Passaic, New Jersey. On the police report, YR's address is listed as th Street, Passaic, NJ. LAH's address is listed as 812 Center Street, Trenton, NJ. In a Affidavit dated February 10, 2003, YR states that on February 3, 2003, (i) I lived at th Street Apt. 3, Passaic, New Jersey 07055, (ii) I was injured in an accident involving a private passenger automobile, (iii) neither I nor any member of my household was the owner of an automobile. Other than my mother HR, (iv) I am not otherwise entitled to New Jersey Automobile No-Fault benefits for this accident and (v) I am, therefore, executing this Affidavit in order to receive New Jersey Automobile No-Fault benefits under the policy issued to: HR. In an Affidavit of No Insurance dated March 19th, 2003, YR states that on February 3, 2003, (i) I lived at th Street, Passaic, NJ 07055, (ii) I was injured in an accident involving a private passenger automobile, (iii) neither I, nor any member of my household was the owner of an automobile and (iv) I am not otherwise entitled to New Jersey Automobile No-Fault benefits for this accident. I am, therefore, executing this affidavit in order to receive New Jersey Automobile No-Fault benefits under the Amica Insurance Company's policy issued to HR. She then indicates that HR is her mother. On her PIP Application, YR lists her address as th Street, Passaic, NJ. At the behest of Respondent, Commercial Investigation investigated the matter of YR's PIP eligibility under her mother's automobile insurance policy. In a PIP Eligibility Report dated May 19, 2003, the investigator indicates that while visiting the listed address, th Street, Apt 3, Passaic, NJ, several unidentified individuals were unfamiliar with YR, an unidentified female informed him that she lived on the third floor and YR came downstairs, identified herself as the daughter of the insured and that she had lived there for approximately 20 years. When asked about the 812 Center Street, Trenton, NJ address, YR replied that she had never lived there and identified that address as the residence of the owner of the car in which she was riding on the date of the accident. The investigator found no neighbors who could verify that YR had resided at the th Street, Passaic, NJ address for 20 years. Nor, apparently, could he find anyone to dispute it. Accessing records at the New Jersey Division of Motor Vehicles, though, the investigator determined that YR possesses ID only #R , listing her

3 CASE NO. 18 Z address as th Street, Apt 3, Passaic, NJ. She is not the owner of a registered vehicle. In a PIP Eligibility Report dated June 23, 2003, the investigator indicates that before visiting the 812 Centre Street, Trenton, NJ address, he conducted a database search on that location and YR's name was not listed in the history of 20 individuals identified to this address. The investigator spoke with a neighbor living at 814 Centre Street who told him that a Puerto Rican female resides at #812 with her boyfriend, Paul, and that occasionally she mistakenly received the female's mail. It should, however, be noted that the first name of the tenant living at 812 Centre Street at the time of the accident and as listed on the police report was Luis, not Paul. Other neighbors residing at 809 and 815 were not familiar with YR, or the occupants of 812. In a PIP Eligibility Report dated August 25, 2003, the investigator indicates that the landlord of the rental property located at 812 Centre Street, Trenton, NJ did not recognize YR's name. A neighbor living at 814 Centre Street told him that two Puerto Rican females resided at 812 Centre Street, but the neighbor was not familiar with YR. Apparently, Respondent's insured, who could not understand the investigator's questions regarding YR's residency at the time of the accident had told him that YR resided at the Centre Street address until she was 8 months pregnant at which time she moved in with her. No time frame is provided for that particular bit of information. A subsequent attempt to question the insured on August 25, 2003 resulted in a response that YR resided with her in apartment 3 at th Street, Passaic, NJ on the date of the accident. She also identified the 812 Centre Street address as that of YR's boyfriend, LAH. The investigator concludes the August 25, 2003 report with a statement that YR's residency on the date of loss remains unknown. In a PIP Eligibility Report dated September 25, 2003, the investigator found a note in the mailbox indicating that LAH and YR had moved, and that all mail be forwarded to th Street, Passaic, NJ. An unidentified female apparently told the investigator that LAH and YR were married, have a seven-month old child and moved out at the end of August, There is no documentary evidence of record that YR and LAH were married prior, at the time of, or subsequent to the date of the accident. If the residency information is accurate, it would confirm the insured's statement that YR was some eight months pregnant and residing with her at the time of the accident. A local mail carrier apparently told the investigator that YR and LAH had lived at the 812 Centre Street address for approximately 1 year. No time frame is given and there was no official forwarding address on file at the post office.

4 CASE NO. 18 Z A PIP Eligibility Report dated October 24, 2003, contains conclusory and unsubstantiated statements by the investigator that YR resided at 812 Centre Street, Trenton, NJ with her husband, LAH, on the date of the accident and they have since moved to th Street, Passaic, NJ. There is no documentary evidence of record to support the conclusory statements of the investigator. The PIP Eligibility Reports are fraught with hearsay, unrecorded statements by unidentified individuals, inconsistencies and inferences drawn by the investigator from bits of information gathered during his investigation. The PIP Eligibility Reports are unreliable, at best, and certainly not conclusive and, therefore, of very little, if any, evidentiary value in this case. The proofs submitted by Respondent are insufficient and, in any event, do not overcome the persuasiveness of the Affidavit of No Insurance and information contained on the police report, PIP Application and the DMV look-up (the only reference to documentary evidence unearthed by Respondent's investigator) regarding YR's place of residency at the time of the accident. As determined from the foregoing, and reflective of the review of record evidence disussed hereinabove, Claimant has established by a preponderance of the credible and reliable evidence that YR was residing with her mother, HR, at th Street, Apt 3, Passaic, NJ at the time of the accident. As a resident relative of HR at the time of the accident and without access to any other automobile insurance policy, YR is, then, entitled to PIP benefits coverage under Respondent's insured's policy. Claimant, as Assignee, then, is entitled to PIP benefits coverage under the automobile insurance policy issued by Respondent to HR and in full force and effect at the time of the accident. Claimant is entitled to reimbursement in the amount of $5, for the treatment rendered to YR from March 19, 2003 through August 27, Medical expense benefits are awarded in the amount of $5,790.00, subject to the prevailing medical fee schedule and any applicable deductible and co-payment. Claimant's counsel made an application for attorney's fees in this matter. N.J.A.C. 11:3-5.6(d)3 provides that the decision of the dispute resolution professional "may include attorney's fees for a successful claimant in an amount consonant with the award and with Rule 1.5 of the Supreme Court's Rules of Professional Conduct."

5 CASE NO. 18 Z Claimant has been successful herein and, therefore, Claimant's counsel is entitled to an attorney's fee. With respect to attorney's fees, the Certification of Services has been reviewed and Respondent's argument that the fees sought by Claimant's counsel are excessive has been taken into consideration, as well. As set forth in RPC 1.5, consideration has been given, but not limited to, the novelty and difficulty of the questions involved, the skill requisite to perform the legal services properly, the fees customarily charged in the locality for similar legal services, the amount involved and the results obtained, as well as the experience, reputation and ability of the lawyer performing the service. An attorney's fee of $1, is consonant with the amount of the Award and in keeping with the guidelines of RPC 1.5. Claimant seeks reimbursement of costs. N.J.A.C. 11:3-5.6(d)2 provides that "the award shall apportion the costs of the proceedings, regardless of who initiated the proceedings, in a reasonable and equitable manner consistent with the resolution of the issues in dispute." In keeping with N.J.A.C. 11:3-5.6(d)2, Claimant's arbitration filing fee of $ and the costs of photocopying and certified mail totaling $34.42 shall be apportioned against Respondent. Costs are awarded in the amount of $ MEDICAL EXPENSE BENEFITS: Awarded Provider Amount Claimed Amount Awarded Payable to Passaic Chiropractic & Therapy Center $5, $5,790.00* Passaic Chiropractic & Therapy Center Explanations of the application of the medical fee schedule, deductibles, co-payments, or other particular calculations of Amounts Awarded, are set forth below.

6 CASE NO. 18 Z *Subject to the prevailing medical fee schedule and any applicable deductible and copayment. 6. INCOME CONTINUATION BENEFITS: Not In Issue 7. ESSENTIAL SERVICES BENEFITS: Not In Issue 8. DEATH BENEFITS: Not In Issue 9. FUNERAL EXPENSE BENEFITS: Not In Issue 10. I find that the CLAIMANT did prevail, and I award the following COSTS/ATTORNEYS FEES under N.J.S.A. 39:6A-5.2 and INTEREST under N.J.S.A. 39:6A-5h. (A) Other COSTS as follows: (payable to counsel of record for CLAIMANT unless otherwise indicated): $ (B) ATTORNEYS FEES as follows: (payable to counsel of record for CLAIMANT unless otherwise indicated): $1, (C) INTEREST is as follows: Click here. This Award is in FULL SATISFACTION of all Claims submitted to this arbitration. April 5, 2004 Date James H. Garrabrandt, Esq.