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SIU Spotlight

Fraud Act and RICO Claims Belong in Court, Says NJ Appellate Court

SIU Spotlight, Issue 2, Vol. 1, March 2025

March 1, 2025

by Ariel C. Brownstein

The ongoing battle over whether disputes under the Insurance Fraud Prevention Act (the Fraud Act) and the New Jersey Anti-Racketeering Act (RICO) can be litigated in court recently resulted in a favorable determination for insurance carriers in the New Jersey Appellate Division case of Allstate v. Carteret Comprehensive Care, PC, et al., No. A-4605-91 (App. Div. January 9, 2025). 

In March 2023, Allstate Insurance filed a complaint against more than 30 defendants, alleging violations of the Fraud Act and RICO, among other claims. A group of defendants moved to dismiss the complaint and compel arbitration. On October 27, 2023, the trial court issued three orders granting the moving defendants’ request, compelling all claims asserted by Allstate to arbitration under the Automobile Insurance Cost Reduction Act (AICRA). The trial court ruled that AICRA’s language mandated arbitration for all disputes concerning the recovery of Personal Injury Protection (PIP) benefits, that any party to the dispute could invoke arbitration, and that the arbitration provision covered a broad range of legal disputes related to PIP benefits. 

Allstate appealed the order dismissing the complaint and compelling arbitration, arguing the trial court erred because: (1) AICRA could not strip the right to a jury trial as guaranteed by the Fraud Act and RICO; (2) AICRA only mandates arbitration for disputes regarding the recovery of medical expense benefits under PIP; (3) AICRA, the Fraud Act, and RICO do not support the conclusion that fraud claims can be subject to PIP arbitration; and (4) statutory interpretation does not support the notion that claims under the Fraud Act and RICO should be arbitrated.

The Appellate Division distinguished the objectives of the PIP arbitration process from those of the Fraud Act and RICO. The court emphasized that PIP arbitrators have limited discovery enforcement powers and discovery in PIP arbitration is confined to assessing the nature, extent, and validity of a PIP claim. Furthermore, PIP benefits are statutory in origin, and remedies for their denial are restricted to interest and attorneys’ fees. 

In contrast, the Fraud Act and RICO serve broader purposes, such as combating insurance fraud and addressing serious threats to New Jersey’s political, social, and economic institutions. The Fraud Act allows for the recovery of compensatory damages, investigative expenses, costs, attorneys’ fees, and, when a pattern of fraud is established, treble damages. RICO provides both civil and criminal sanctions. The court astutely noted that PIP arbitration regulations do not expressly provide for injunctive relief, compensatory damages, treble damages, or attorneys’ fees for an insurance carrier. 

Additionally, the court highlighted that PIP arbitration rules do not allow for (1) broad discovery, (2) discovery from third parties, or (3) the joinder of third parties. Ultimately, the court concluded that AICRA’s history demonstrated that PIP arbitration was intended as an expedited and streamlined process strictly for resolving PIP benefit disputes.

The court also rejected the defendants’ argument that they had a right to arbitration under Allstate’s Decision Point Review Plan (DPRP). It determined that by referencing N.J.A.C. 11:3, Allstate had made clear that arbitration under its DPRP was no broader than PIP arbitration under AICRA. Since the plan’s scope was identical to AICRA, the defendants had no independent right to arbitration under the DPRP.

Additionally, Allstate argued that interpreting AICRA to require arbitration for insurance fraud claims would violate its constitutional right to a jury trial under the Fraud Act and RICO. The New Jersey Constitution guarantees the right to a jury trial for statutory causes of action sounding in law, as affirmed in Lajara. While private parties may waive this right through arbitration agreements, the Legislature cannot mandate such waivers without allowing for a de novo jury trial, per Jersey Central Power & Light

The court noted that arbitration for PIP claims is permissible because there is no constitutional right to a jury trial for determining PIP entitlements, as established in Endo Surgi Center. By limiting AICRA’s arbitration provision to PIP claims and excluding fraud claims, the court avoided potential constitutional conflicts, adhering to the principle of statutory interpretation that preserves constitutionality.

A key issue was the conflicting decision from the Third Circuit in Government Employees Insurance Co. v. Mount Prospect Chiropractic Center, 98 F.4th 463 (3d Cir. 2024). In GEICO, the Third Circuit held that Fraud Act claims are arbitrable under AICRA. However, the Appellate Division noted that this decision was not binding on the case before it and disagreed with the Third Circuit’s interpretation of New Jersey law. 

The Appellate Division found that the Third Circuit had reasoned that AICRA’s arbitration provisions implicitly encompassed fraud claims but had overlooked the distinct legislative purposes of AICRA and the Fraud Act. The Third Circuit also relied on arbitration agreements in GEICO’s DPRP and assignment forms, but the Appellate Division had already determined that these were limited by AICRA’s regulations to PIP arbitration. Ultimately, the Appellate Division rejected the Third Circuit’s conclusions as unpersuasive.

Given the impracticalities of litigating Fraud Act and RICO claims through arbitration, the Appellate Division correctly distinguished between PIP claims involving medical providers—intended for arbitration—and claims brought by insurance carriers under the Fraud Act and RICO, which were meant to be litigated in court. 

After a series of setbacks in federal court on these issues, this decision by the Appellate Division strengthens insurance carriers’ ability to investigate and litigate Fraud Act and RICO claims in the appropriate judicial forum rather than through limited arbitration proceedings.

*Ari is a shareholder in our Mount Laurel, NJ office and a member of the Insurance Fraud/SIU Practice Group. (856) 414.6075 | ACBrownstein@mdwcg.com 



 

SIU Spotlight, Issue 2, Vol. 1, March 2025 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

Commonwealth Court Deemed Worker an Employee Despite Independent Contractor Agreement; Insurer Estopped from Denying Coverage

In this case, the claimant filed a Claim Petition for injuries sustained on October 28, 2019, naming J&S as his Employer, and alleging that the injuries occurred when he fell from a ladder while installing a satellite dish for Dish Network. Dish Network contracted with J&S to install satellite dishes. Subsequently J&S filed a Petition to Join Brickstreet Insurance Company and the claimant filed a Claim Petition against the Uninsured Employer Guaranty Fund. The Fund then joined Dish Network as another employer.  Before the Workers’ Compensation Judge (WCJ), the claimant testified that he was hired in 2015 by J&S and at the time signed an Independent Contractor Agreement (IC Agreement). J&S defended the case on the basis that the claimant was not an employee, but was an independent contractor, even after the IC Agreement expired. Additional evidence showed that, at the time of the October 28, 2019, work injury, J&S’ workers’ compensation insurance with Brickstreet had lapsed, even though a Brickstreet agent had been working to renew J&S’ policy and had a Certificate for coverage from September 25, 2019 to September 25, 2020 issued, with Dish Network listed as the Certificate Holder. A renewal policy was not in effect at the time the Certificate was issued and the agent learned on October 25, 2019 that Brickstreet was not going to renew their policy with J&S, due to an unpaid premium.    Ultimately, the WCJ found that the claimant was an employee of J&S at the time of the work injury and that J&S did not have a workers’ compensation policy in place at the time, due to their failure to pay the renewal premium to Brickstreet. The WCJ also found Dish Network was a Statutory Employer under Section 302(a) of the Act. The Claim Petition and the Guaranty Fund Claim Petition were both granted, as was the Guaranty Fund’s Petition to Join Dish Network. The WCJ also denied J&S’ Petition to Join Brickstreet, finding that neither J&S or Dish Network showed that Brickstreet was estopped from denying coverage. J&S and Dish Network appealed to the Workers’ Compensation Appeal Board (Board) and the Board affirmed. J&S and Dish Network appealed to the Commonwealth Court. The Commonwealth Court rejected J&S' argument that the claimant was an independent contractor. In doing so, the court noted that the claimant credibly testified that he worked for J&S full time, could not work for another company, and that J&S, scheduled his jobs, tracked him, and scheduled additional installations, if he finished early. Additionally, the court noted the claimant lacked discretion in the manner he performed his job, because all questions had to be referred to J&S.  As for Dish Network’s appeal, the court held that the WCJ erred in holding that Brickstreet was not estopped from denying coverage as to Dish Network. According to the court, the insurance agent was an authorized representative of Brickstreet and, at the direction of J&S, issued the Certificate of Insurance that he knew was not accurate at the time, and was aware would be presented as proof of coverage for J&S. Dish Network relied upon that information and continued to use J&S, ultimately leading to Dish Network being named as the Statutory Employer liable for payment of benefits because of J&S’ uninsured status. The court held that the Board erred in affirming the WCJ ’s conclusion that Dish Network did not establish that Brickstreet was equitably estopped from denying coverage, reversed the decision below, and remanded the case to the WCJ. 

Thought Leadership

Florida Supreme Court Adopts Traditionally More Expansive Concept of Occupational Causation

The Florida Supreme Court issued a significant decision rebuking the First District Court of Appeal (1st DCA) in the high-profile case of Bouayad v. Normandy Insurance Co., a case addressing the compensability of workplace injuries resulting from assaults by third-party tortfeasors. The Judge of Compensation Claims (JCC) found the claimant was entitled to workers' compensation benefits, relying in part on the Florida Supreme Court's earlier decision in Strother v. Morrison Cafeteria from 1980. In Strother, the Court upheld an award of benefits to a cashier who was assaulted and robbed by individuals who followed her home from work under the mistaken belief that she was carrying restaurant cash deposits. In Bouayad, the 1st DCA concluded that the claimant's injuries were not compensable because they did not arise out of his employment. The Florida Supreme Court disagreed, holding that the 1st DCA applied too narrow an interpretation of the "arising out of employment" requirement. In doing so, the Court reaffirmed a broader and more traditional view of occupational causation than that recently adopted by the 1st DCA. The claimant in Bouayad was the general manager of a car rental business operating from a hotel near an airport. Around midnight, while walking along a covered outdoor walkway from the hotel's atrium, where the rental kiosk was located, to an office near the pool, he was shot multiple times by an unidentified assailant. As part of his regular duties, the claimant carried rental agreements and cash receipts from the kiosk to the office at the end of each shift. After the shooting, the claimant managed to return to the hotel atrium, where he stated that he believed "Robert" had shot him, referring to an individual who had threatened the claimant's son the previous day. The assailant, however, was never identified. Consequently, the Supreme Court analyzed the case as involving an unknown third party while the claimant was acting within the course and scope of his employment. The central issue therefore was whether the injury "arose out of" the claimant’s employment. At the final hearing, the claimant presented evidence regarding the risks and hazards associated with his employment, including the nature of his duties, his late-night work schedule, and the location of the business in a high-turnover hotel near a major airport. His expert opined that these factors exposed him to an increased risk of becoming the victim of a crime while at work. In contrast, the employer/carrier's expert characterized the shooting as a targeted attack rather than a robbery and asserted that the risk of violent crime was actually higher near the claimant's residence than at the hotel. Based on that analysis, the expert concluded that the claimant was not exposed to an increased workplace risk. The 1st DCA focused narrowly on the specific activity the claimant was performing at the moment of injury. According to the court, the claimant's “work performed” at the time of the shooting was simply "walking" between two employer-operated locations, and that act of walking did not itself cause the injury. The Florida Supreme Court found this analysis far too myopic and inconsistent with decades of workers' compensation precedent. Reaffirming longstanding principles of workplace causation, the Court explained that the proper inquiry is not whether the precise physical task being performed at the moment of injury directly caused the harm. Rather, the relevant question is whether the employment, viewed as a whole, exposed the worker to risks and hazards that contributed to the injury. The decision is significant because it reinforces a broader conception of work-relatedness in the “arising out of” compensability analysis. Instead of limiting the causation analysis to the employee's discrete physical activity at the time of injury, courts must consider the totality of the employment circumstances, including the employee's duties, work environment, hours, and occupational risks. Under that framework, an injury may arise out of employment when the employment places the employee in a position of increased hazard, even if the specific task being performed at the moment of injury is not itself the direct cause of the harm.

Thought Leadership

Appellate Division Affirmed Trial Judge’s Orders Granting Summary Judgement for Defendants on COVID-19 Case

In Dunne v. Advanced Subacute Rehab Servs. at Sewell, LLC, et al., the plaintiffs appealed from two Law Division orders. By way of background, Louis Doto, Sr. (Doto) worked for BP & SC Services, Inc. (BP). BP leased Doto to Advanced Subacute Rehabilitation Center at Sewell, LLC (Advanced Subacute) and it had control of his work, paid wages, and had the power to hire or fire him. A BP employee was assigned to the facility to train and supervise him and BP was responsible for securing workers’ compensation coverage. Doto worked as an aide in the laundry department. Linen from COVID-19 residents were delivered in clearly marked bags and he had no direct contact with residents. A co-worker, Sheila Smith, was also an aide and she never contracted COVID-19 at the facility. Advanced Subacute did not require Doto to wear an N-95 mask, but instead a surgical mask, though N-95 masks were available to all employees. He was also required to attend period mandatory meetings with other high-risk employees, the last of which he attended was in November 2020. All employees were required to test for COVID-19 and there were no reported cases from June to October 2020. On December 23, 2020, Doto tested positive for COVID-19 and passed away on January 18, 2021. The last member of housekeeping that Doto may have encountered tested positive 22 days earlier. After his death, OSHA found two “serious” violations concerning the N-95 masks worn by housekeepers. In response, Advanced Subacute fit tested all non-clinical staff. Doto’s estate filed a workers’ compensation claim and named both BP and Advanced Subacute as his employer. The estate received an award. In July 2022, the plaintiffs filed a complaint in the Law Division, alleging wrongful death and survivor causes of action. In October 2024, the defendants moved for summary judgment, arguing: 1) immunity pursuant to the Emergency Health Powers Act: 2) the exclusive remedy provision of the Workers’ Compensation Act; 3) Doto’s inability to establish infection at the facility; 4) net expert opinions by the plaintiffs’ expert; and 5) inadmissibility of the OSHA report. The plaintiffs opposed and filed a cross-motion for summary judgment, arguing: 1) no immunity as Advanced Subacute engaged in gross negligent or willful misconduct; 2) no preclusion by the Workers’ Compensation Act as Doto was not Advanced Subacute’s employee; and 3) no net expert opinions. In February 2025, the judge issued a written decision granting the defendants’ motion. Specifically, he found Advanced Subacute’s COVID-19 immunity precluded the plaintiffs’ claim as no reasonable jury could find any gross negligence or utter disregard for Doto’s safety. He also addressed the other defenses for completeness. The plaintiffs moved for reconsideration and the judge issued another written decision denying the plaintiffs’ motion in April 2025. The plaintiffs then appealed both decision. The Appellate Division affirmed the orders for reasons stated by the judge in his written decisions. The Appellate Division only added: 1) Advanced Subacute acted consistently with the legislative grant of immunity; 2) there was no doubt Doto was an employee of both BP and Advanced Subacute and the latter may have inadvertently failed to follow some precautions; and 3) confirmed the plaintiffs’ experts did not identify a basis for their opinions. Ultimately, the Appellate Division found no reason to disturb the judge’s well-reasoned decisions and affirmed the judge’s orders.

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