Allstate New Jersey Insurance Company v. Gregorio Lajara

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5684-11T4

ALLSTATE NEW JERSEY INSURANCE
COMPANY, ALLSTATE INSURANCE
COMPANY, ALLSTATE INDEMNITY
COMPANY, ALLSTATE PROPERTY APPROVED FOR PUBLICATION
AND CASUALTY INSURANCE COMPANY,
ALLSTATE NEW JERSEY PROPERTY October 9, 2013
AND CASUALTY INSURANCE COMPANY
and ENCOMPASS INSURANCE, f/k/a APPELLATE DIVISION
CONTINENTAL INSURANCE COMPANY,
and COMMERCIAL INSURANCE
COMPANY OF NEWARK, NJ,

Plaintiffs-Respondents,

v.

GREGORIO LAJARA; PEDRO GONZALEZ;
MILEYDIS T. DIAZ a/k/a MILLY
DIAZ; AWILDA D. RODRIGUEZ a/k/a
AWILDA D. GONZALEZ; KENNETH J.
VIAFORA; JOSE ORLANDO HERNANDEZ;
FRANCISCA HERNANDEZ; FRANCISCO
CABA; AQUALINA RAMOS; ASHRAF Y.
AZIR; MUHAMMAD A. SHAMSHAIR;
MICHAEL C. GOLOWSKI; ELVIA BEDOYA;
NYDIA MARTINEZ; NEREDA ZUNIGA;
ALEXANDRA GALLEGOS; BIBARS KAGHDOU,
D.C.; STEPHEN LOMANTO, D.C.; DAVID
STEPHENS, D.C.; THOMAS J. BONACUSO,
D.C.; MICHAEL CARLESIMO, D.C.;
BRYAN SIEGEL, D.C.; KEITH
LEWANDOWSKI, D.C.; WEI JU; LUCY
LIU; JIANMIN LI, a/k/a JIAN MIN
LI; SHAN S. NAGENDRA, M.D.;
ALEKSANDR LEVIN, M.D.; MANOJ D.
PATHARKAR, M.D.; ALFRED REZK
TAWADROUS, M.D.; HOWARD KESSLER,
M.D.; NATALIO DAMIEN, M.D.; DAVID
WALKER, ESQ.; MEDICO MANAGEMENT
CO., INC.; UNION COLLECTIONS, LLC;
PLAINFIELD MEDICAL MANAGEMENT,
INC.; SPINAL ADJUSTMENT CENTER,
P.C. f/k/a SPINAL ADJUSTMENT
CENTER, INC.; RAHWAY SPINAL INJURY
P.C. f/k/a RAHWAY SPINAL CENTER
CORP; ADVANCED SPINAL CARE, P.C.;
MILLENNIUM TOTAL HEALTH, P.C.;
ALEVE CHIROPRACTIC, P.C.; IN-LINE
CHIROPRACTIC, P.C.; BAYVIEW HEALTH,
P.C. a/k/a BAYVIEW HEALTH SERVICE,
P.C.; BOUND BROOK CHIROPRACTIC,
P.C.; NEW WAVE CHIROPRACTIC, P.C.;
ABSOLUTE CHIROPRACTIC, P.C.; BACK
PAIN P.C.; AM PAIN CARE, P.C.;
ACUPUNCTURE ACADEMY P.C.; TCM
ACUPUNCTURE, P.C.; AMERICAN
ACUPUNCTURE ACADEMY, P.C.; CONVERY
MEDICAL GROUP, P.C.; RARITAN PAIN
MANAGEMENT AND REHAB CENTER, P.C.;
ASBURY MEDICAL AND REHABILITATION
P.C.; PAIN MANAGEMENT ASSOCIATES
OF CENTRAL JERSEY, P.A.; BEST
HEALTH MEDICAL, P.C.; PERTH AMBOY
HEALTH CARE, LLC d/b/a "PERTH
AMBOY DIAGNOSTIC IMAGING"; LIBERTY
SUPPLIES, L.L.C.; K-MED SERVICES,
INC.; PRESTIGE MEDICAL SUPPLIES,
LLC; THERAPEUTIC DEVICES, INC.,

Defendants-Respondents,

and

A.P. DIAGNOSTIC IMAGING, INC. and
DR. HARSHAD PATEL,

Defendants-Appellants.
___________________________________

Argued April 30, 2013 – Decided October 9, 2013

Before Judges Messano, Lihotz and Ostrer.

2 A-5684-11T4
 On appeal from the Superior Court of New
Jersey, Law Division, Union County, Docket
No. L-4091-08.

Carl A. Salisbury (Kilpatrick Townsend &
Stockton, LLP) argued the cause for
appellants.

Thomas O. Mulvihill argued the cause for
respondents Allstate New Jersey Insurance
Company, Allstate Insurance Company,
Allstate Indemnity Company, Allstate
Property and Casualty Insurance Company,
Allstate New Jersey Property and Casualty
Insurance Company and Encompass Insurance,
f/k/a Continental Insurance Company, and
Commercial Insurance Company of Newark, NJ
(Pringle Quinn Anzano, P.C., attorneys; Mr.
Mulvihill, on the brief).

The Law Office of Jeffrey Randolph, LLC,
attorneys for respondents Plainfield Medical
Management, Pedro Gonzalez and Awilda D.
Rodriguez a/k/a Awilda D. Gonzalez, join in
the briefs of appellants.

Bubb Grogan & Cocca, LLP, attorneys for
respondents Shan Nagendra, M.D., Convery
Medical Group, P.C., and Raritan Pain
Management and Rehab Center, P.C., join in
the briefs of appellants.

Archer & Greiner, P.C., attorneys for
respondents Dr. Manoj Patharkar and Pain
Management Associates of Central Jersey,
P.A., join in the briefs of appellants.

The opinion of the court was delivered by

OSTRER, J.A.D.

On leave granted, defendants appeal from the trial court's

order (1) granting plaintiffs' motion to withdraw their jury

3 A-5684-11T4
demand in their action under the Insurance Fraud Prevention Act

(Act), N.J.S.A. 17:33A-1 to -30; and (2) striking defendants'

jury demand. The Act is silent on the right to trial by jury.

We therefore must determine whether the Act implied that right,

or whether the Constitution's right to trial by jury, N.J.

Const. art. I, par. 9, encompasses a private action under the

Act.

After considering the Act's plain language, its legislative

history, and the legislative intent, and applying well-settled

principles of statutory construction, we conclude the Act does

not create a right to a jury trial. Also, as the equitable

nature of the statutorily created right to relief was unknown at

common law before adoption of the State Constitution, we

conclude the Constitution does not guarantee a right to a trial

by jury. We therefore affirm the trial court's order.

I.

Given the purely legal nature of the question before us,

the pertinent facts may be briefly stated. Plaintiffs alleged

they paid $8.2 million in personal injury protection (PIP)

benefits under the New Jersey Automobile Reparation Reform Act,

N.J.S.A. 39:6A-1 to -35, as a result of violations of the Act.

The forty-two count complaint included as defendants individual

physicians and chiropractors; medical and chiropractic

4 A-5684-11T4
practices; management companies of medical practices; medical

equipment companies; attorneys; and unlicensed individuals.

Among their allegations, plaintiffs asserted that Gregorio

Lajara, who was neither a licensed physician nor a chiropractor,

directed a scheme to defraud plaintiffs. He allegedly did so,

in part, by controlling and effectively owning chiropractic

facilities, which plaintiffs alleged violated the law.

Plaintiffs alleged various defendants performed services in

violation of professional regulations; billed for various

services performed by unlicensed persons; engaged in unlawful

fee-splitting; knowingly and intentionally concealed facts

concerning services provided; billed for services and equipment

not actually provided, or medically unreasonable or unnecessary;

failed to charge co-pays; paid persons who intentionally caused

accidents in order to generate fraudulent bills; and paid

kickbacks to attorneys who referred clients.

The complaint sought a declaratory judgment that plaintiffs

were not obligated to pay PIP benefits to defendants;

disgorgement of sums already paid to defendants; imposition of a

constructive trust and equitable lien on defendants' assets

until they disgorged the sums sought; and damages allowed under

the Act.

5 A-5684-11T4
 Plaintiffs initially demanded a jury trial. However, after

answers were filed, plaintiffs moved for leave to withdraw their

prior demand. Defendants opposed the motion and demanded a jury

trial, some of them for the first time, having omitted the

demand from their answers. The Commissioner of Banking and

Insurance, who had earlier intervened in the suit, moved to

strike the jury demand as it related to the Commissioner's

claims. See N.J.S.A. 17:33A-7d (authorizing the Commissioner to

join in an insurance company's private action, in order to

recover civil penalties authorized by N.J.S.A. 17:33A-5).

Judge Kenneth J. Grispin granted plaintiffs' motion, and

struck defendants' jury demand. Defendants sought leave to

appeal, which another panel granted.

Renewing arguments they presented to the trial court,

defendants urge us to find an implied jury trial right under the

Act, just as the court found an implied jury trial right under

the analogous Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -109,

in Zorba Contractors, Inc. v. Housing Authority of Newark, 362

N.J. Super. 124 (App. Div. 2003). In response, plaintiffs

distinguish Zorba, supra, based on differences between the

relief available under the CFA and the Act. They also argue

that the inherently equitable nature of relief authorized by the

Act compels a non-jury trial. They rely on our prior holding

6 A-5684-11T4
that actions under the Act by the Commissioner, as opposed to

private parties, are not subject to a jury trial right, given

the restitutionary, and hence, equitable nature of relief

available to the Commissioner. State v. Sailor, 355 N.J. Super.

315, 323-24 (App. Div. 2001).

II.

A.

We apply a de novo standard of review to the trial court's

determination that there does not exist a right to trial by

jury. See id. at 320 (citing Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366 (1995)).

At the outset we note that those defendants who omitted a

jury demand in their answers did not waive their right to a jury

trial. In instances where a jury trial is permitted, a

defendant is entitled to rely on a plaintiff's demand,

notwithstanding that, generally, a party who neglects to timely

demand a jury waives his right to do so. R. 4:35-1(c). Once

one party demands a jury trial on all issues, "the waiver

provisions of subsection c of the rule [4:35-1] cannot be the

basis for denying a jury trial to a party who has not demanded

such a trial." 500 Columbia Tpke. Assocs. v. Haselmann, 275

N.J. Super. 166, 170 (App. Div. 1994). Consequently, trial by

jury could be "dispensed with only by consent of all the parties

7 A-5684-11T4
or their counsel," including that of plaintiff. Ibid. See also

Pressler & Verniero, Current N.J. Court Rules, comment 1.1 on R.

4:35-1 (2014) ("Once demanded by any party, a trial by jury can

be dispensed with only by consent of all parties. Paragraph (d)

expressly so provides."). On the other hand, a court may grant

a party's late request to withdraw a jury demand over an

adversary's opposition if the court finds there exists no

statutory or constitutional right to a jury trial.

B.

Turning to the issue before us, we start with the

undisputed premise that the Act does not expressly grant a jury

trial right. In that respect, it is distinct from numerous

enactments in which the Legislature has both created a new

statutory cause of action, and expressly provided a right to

trial by jury.

When conferring a right to a jury trial for
newly-created statutory causes of action,
the Legislature has a history of doing so by
express provision. See, e.g., N.J.S.A.
2A:15-56 (labor dispute injunctions);
N.J.S.A. 2A:62-4, 2A:62-18 (quiet-title
actions); N.J.S.A. 2A:62-21 (actions to
determine the existence and validity of
covenants, conditions, agreements, or
restrictions in deeds to real estate);
N.J.S.A. 2A:62-24 (actions to determine
title to riparian lands and lands under
water); N.J.S.A. 3B:12-24 (civil proceedings
to determine mental incompetency); N.J.S.A.
40:189-3 (actions for abatement of
nuisances); and N.J.S.A. 45:14B-42 (actions

8 A-5684-11T4
 regarding confidentiality of patient
information by psychologists); see also
State v. Tenriero, 183 N.J. Super. 519, 521
(Law Div. 1981) (plaintiff denied a right to
jury trial in action brought under statute
that provided Superior Court with
jurisdiction over gambling offenses: "[h]ad
the Legislature intended otherwise, it would
have made provision in the same manner as
for the disorderly persons obscenity
offense.")

[Shaner v. Horizon Bancorp., 116 N.J. 433,
443 (1989).]

At this point, we review the plain language of the Act as

it will weigh heavily in determining whether the Act impliedly

requires a jury trial, or creates a cause of action and right to

relief subject to the constitutional right to trial by jury.

The Act "interdicts a broad range of fraudulent conduct."

Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 172 (2006).

However, "the Legislature . . . did not codify common law fraud

but rather supplemented that action because, standing alone, it

had proven to be insufficient in combating and deterring

insurance fraud." Id. at 174. The Act does not require proof

of a showing that the maker of a false statement intended that

the other party rely, the other party did reasonably rely, and

suffered damages. See id. at 174-75 (noting that the elements

of legal fraud are: a material representation of a present or

past fact, made knowing it is false, and intending the other

party rely on it, resulting in the party's reasonable reliance

9 A-5684-11T4
and resulting damages). Rather, a violation of the Act is more

akin to equitable fraud, which does not require proof of

knowledge of falsity or "an intention to obtain an undue

advantage." See Jewish Ctr. of Sussex Cnty. v. Whale, 86 N.J.

619, 624-25 (1981).1 However, even equitable fraud requires

proof of detrimental reliance. Ibid. The Act does not.

It is a violation if a person or practitioner:

(1) Presents or causes to be presented
any written or oral statement as part of, or
in support of or opposition to, a claim for
payment or other benefit pursuant to an
insurance policy or the "Unsatisfied Claim
and Judgment Fund Law," P.L.1952, c. 174
(C.39:6-61 et seq.), knowing that the
statement contains any false or misleading
information concerning any fact or thing
material to the claim; or

(2) Prepares or makes any written or
oral statement that is intended to be
presented to any insurance company, the
[UCJF] or any claimant thereof in connection
with, or in support of or opposition to any
claim for payment or other benefit pursuant
to an insurance policy or the "Unsatisfied
Claim and Judgment Fund Law," P.L.1952, c.
174 (C.39:6-61 et seq.), knowing that the
statement contains any false or misleading
information concerning any fact or thing
material to the claim[.]

. . . .

1
Negligent misrepresentation also requires proof of detrimental
reliance and resulting damages. Kaufman v. i-Stat Corp., 165
N.J. 94, 109-10 (2000).

10 A-5684-11T4
 (4) Prepares or makes any written or
oral statement, intended to be presented to
an insurance company or producer for the
purpose of obtaining:

. . . .

(b) an insurance policy, knowing that
the statement contains any false or
misleading information concerning any fact
or thing material to an insurance
application or contract[.]

[N.J.S.A. 17:33A-4a(1), (2), and (4).]

A violation of paragraphs (1), (2), or (4)(b) may occur without

any intent the insurer rely, or proof the insurer reasonably

relied and was damaged.

The law also penalizes the concealment or knowing failure

"to disclose the occurrence of an event which affects any

person's . . . right or entitlement to [an] insurance benefit or

payment" or the amount thereof. N.J.S.A. 17:33A-4a(3). This

also need not rise to legal fraud. See Strawn v. Canuso, 271

N.J. Super. 88, 105 (App. Div. 1994) (stating that fraud by

concealment is "[n]ondisclosure of a material fact where there

is a duty to speak."), aff'd, 140 N.J. 45, 49 (1995); Berman v.

Gurwicz, 189 N.J. Super. 89, 93-94 (Ch. Div. 1981) (stating that

claim for fraud by concealment lies where there is duty to

disclose to correct a previous statement or where there is a

special relationship), aff'd o.b., 189 N.J. Super. 49, 50 (App.

Div.), certif. denied, 94 N.J. 549 (1983).

11 A-5684-11T4
 The statute also makes it a violation to misstate a

person's principal place of residence for the purpose of

obtaining automobile insurance. N.J.S.A. 17:33A-4a(4)(a).

Although the violator must intentionally present the statement

to the insurer, the Act does not require proof that the person

knew the statement was false. Ibid. The Act also makes it a

violation for a person to assist or effectively facilitate

another person's violation of the Act. N.J.S.A. 17:33A-4b, and

-4d. It is also a violation for a person or practitioner to

knowingly benefit from the proceeds of another person's

violation of the Act. N.J.S.A. 17:33A-4c.

The Act as originally adopted authorized the Commissioner

to bring a civil action to recover penalties for each violation

of the Act, to be determined by the court subject to the Act's

monetary limits.2 L. 1983, c. 320, § 5 (codified at N.J.S.A.

17:33A-5); see also Merin v. Maglacki, 126 N.J. 430, 440 (1992)

(holding that the penalty may be imposed for each false

2
The amount per civil penalty originally was not to exceed
$2,500 for the first violation, $5,000 for the second violation,
and $10,000 for each subsequent violation. L. 1983, c. 320, § 5
(codified at N.J.S.A. 17:33A-5a). In 1987, the Legislature
increased the penalties to their present amounts of $5,000,
$10,000, and $15,000, respectively. L. 1987, c. 358, § 5
(codified as amended at N.J.S.A. 17:33A-5a). The penalties now
apply both to administrative actions and civil proceedings
brought by the Commissioner. L. 1997, c. 151, § 5 (codified as
amended at N.J.S.A. 17:33A-5b, and -5c).

12 A-5684-11T4
statement, as distinct from each false claim). The statute also

empowered the court to assess court costs and reasonable

attorney's fees. L. 1983, c. 320, § 5 (codified at N.J.S.A.

17:33A-5).

In 1997, the Legislature broadened the Commissioner's

powers by authorizing him or her, in an administrative

proceeding, to determine whether there was a violation, and levy

penalties. Significantly, the Commissioner is also empowered

administratively to "order restitution to any insurance company

or other person who has suffered a loss as a result of a

violation." L. 1997, c. 151, § 4 (codified as amended at

N.J.S.A. 17:33A-5c). A respondent may seek a hearing before the

Office of Administrative Law (OAL). Ibid. The Commissioner may

then seek enforcement in a summary proceeding pursuant to the

penalty enforcement law, N.J.S.A. 2A:58-10 to -12. Ibid.

The Act also authorizes insurers "damaged as the result of

a violation" to bring a civil action "to recover compensatory

damages." N.J.S.A. 17:33A-7a. The Act, as amended in 1997,

states that such damages "shall include reasonable investigation

expenses, costs of suit and attorneys fees." L. 1997, c. 151, §

5 (codified as amended at N.J.S.A. 17:33A-7a). As originally

enacted in 1983, the law stated damages "may include" such

elements. L. 1983, c. 320, § 7. Now, damages shall be trebled

13 A-5684-11T4
"if the court determines that the defendant has engaged in a

pattern of violating this act." N.J.S.A. 17:33A-7b. "Pattern"

was not defined in the Act until 1997; the word now means "five

or more related violations" where "related" means the violations

involve the "same victim" or "same or similar actions" by the

violator. L. 1997, c. 151, § 2 (codified as amended at N.J.S.A.

17:33A-3).

An insurer must notify the Commissioner when it brings a

civil action. The Commissioner may then intervene and seek

penalties and cost recovery. N.J.S.A. 17:33A-7d. However,

there is no explicit provision allowing an insurer to intervene

in an administrative proceeding brought by the Commissioner,

notwithstanding the Commissioner's power to seek restitution of

the insurer's losses.

The Act does not expressly address the right to a jury

trial in civil actions brought by the Commissioner or an

insurer. However, as noted, the Act permits the Commissioner to

administratively levy a penalty and order restitution, and

litigate such an order before the OAL if the order is contested.

Likewise, the Act expressly states that a court shall determine

whether a person or practitioner has engaged in a pattern of

violating the act. N.J.S.A. 17:33A-7b.

14 A-5684-11T4
 C.

Defendants ask us to find that the Act implies a right to a

jury trial. Alternatively, we must consider whether, even

absent any statutorily implied right, the Constitution

guarantees a jury trial. We consider the statutory question

first, given our reluctance to address constitutional questions

unless necessary. See O'Keefe v. Passaic Valley Water Comm'n,

132 N.J. 234, 240 (1993). Based on well-settled rules of

statutory construction, we decline to find by implication a

right that does not exist in the statute's plain language, nor

is compelled by the legislative history or the intent of the

statute.

In interpreting a statute, "our overriding goal must be to

determine the Legislature's intent." Jersey Cent. Power & Light

Co. v. Melcar Util. Co., 212 N.J. 576, 586 (2013) (JCP&L)

(internal quotation marks and citation omitted). We begin with

the statute's plain language, and look beyond that only if the

Legislature's intent cannot be derived therefrom. Id. at 587

(citations omitted). "We turn to extrinsic interpretative aids

in search of legislative intent when the statute is ambiguous,

leading to more than one plausible interpretation; it leads to

an absurd result inconsistent with any legitimate public policy

objective; or it is at direct odds with an overall statutory

15 A-5684-11T4
scheme." Murray v. Plainfield Rescue Squad, 210 N.J. 581, 592

(2012) (citing DiProspero v. Penn, 183 N.J. 477, 492-93 (2005)).

"[A] court may not 'presume that the Legislature intended

something other than that expressed by way of the plain

language." JCP&L, supra, 212 N.J. at 586 (quoting O'Connell v.

State, 171 N.J. 484, 488 (2002)). We may not "rewrite a

plainly-written enactment[.]" O'Connell, supra, 171 N.J. at

488. As noted, the Legislature has demonstrated the ability to

assure a right to a jury trial in numerous statutes; yet it was

silent on the subject in the Act. "When the Legislature has

carefully employed a term in one place and excluded it in

another, it should not be implied where excluded." In re Plan

for Abolition of Council on Affordable Hous., 214 N.J. 444, 470

(2013) (internal quotation marks and citation omitted). We may

not "engraft onto [a] statute a[] . . . provision that the

Legislature pointedly omitted. . . . We are charged with

interpreting a statute; we have been given no commission to

rewrite one." Murray, supra, 210 N.J. at 596.

Although our courts have sometimes found implied provisions

— such as implied repealers, or implied rights of action — we

have been reluctant to do so. See, e.g., R.J. Gaydos Ins.

Agency, Inc. v. Nat'l Consumer Ins. Co., 168 N.J. 255, 271

(2001) ("New Jersey courts have been reluctant to infer a

16 A-5684-11T4
statutory private right of action where the Legislature has not

expressly provided for such action."); In re Comm'r of Ins.'s

Issuance of Orders, 137 N.J. 93, 99 (1994) (stating "there is a

strong presumption in the law against implied repealers and

every reasonable construction should be applied to avoid such a

finding") (citation omitted).

The Legislature is empowered to confer a right to a jury

trial where it otherwise would be unavailable. JCP&L, supra,

212 N.J. at 590. However, the JCP&L Court quoted with approval

our statement, "'When the Legislature wants to provide for the

right to a jury trial, it has done so by express provision.'"

Ibid. (quoting Sailor, supra, 355 N.J. Super. at 322). "Thus,

in Sailor, it was observed that 'since 1951, the right to a jury

trial for newly created statutory causes of action has been

denied unless the statute so provides.'" Ibid. (quoting Sailor,

supra, 355 N.J. Super. at 320). As the Shaner Court recognized,

and the JCP&L Court reaffirmed, in the absence of an express

provision, our courts have consistently denied a right to a jury

trial for newly created statutory causes of action.3 The Court

3
See Shaner, supra, 116 N.J. at 448 (citing N.J. Sports &
Exposition Auth. v. Del Tufo, 230 N.J. Super. 616 (App. Div.
1989) (affirming denial of jury trial right in stockholders'
action to determine fair value of their shares); Manetti v.
Prudential Prop. & Cas. Ins. Co., 196 N.J. Super. 317, 320–21
(App. Div. 1984) (denying jury trial right involving
(continued)

17 A-5684-11T4
held that the Legislature's silence is "highly indicative" of an

intent not to confer a jury trial right. Shaner, supra, 116

N.J. at 443. With respect to civil actions by the Commissioner

under the Act, we held "the lack of provision authorizing a jury

trial under the Act means that the Legislature did not intend to

create such a right." Sailor, supra, 355 N.J. Super. at 322.

The Constitution does not guarantee a trial by jury for a

statutory claim that was unknown to the common law. See Shaner,

supra, 116 N.J. at 447. In such cases, when the Legislature

statutorily guarantees a trial by jury, it adopts a right in

derogation of the common law. We generally strictly construe

statutes in derogation of the common law. See, e.g., White v.

Twp. of N. Bergen, 77 N.J. 538, 559 (1978) ("A strict

construction of a statute in derogation of the common law

(continued)
statutorily-created PIP benefits); Van Dissel v. Jersey Cent.
Power & Light Co., 181 N.J. Super. 516 (App. Div. 1981) (finding
no jury trial right in inverse condemnation action), certif.
denied, 89 N.J. 409 (1982), cert. granted and vacated on other
grounds, 465 U.S. 1001, 104 S. Ct. 989, 79 L. Ed. 2d 224 (1984);
Peterson v. Albano, 158 N.J. Super. 503 (App. Div.) (denying
jury trial right in summary dispossess action), certif. denied,
78 N.J. 337 (1978); State v. Tenriero, 183 N.J. Super. 519 (Law
Div. 1981) (finding no right to jury trial for gambling offenses
under statute giving jurisdiction to Superior Court); Quinchia
v. Waddington, 166 N.J. Super. 247, 249 (Law Div. 1979) (finding
no jury trial right in action to recover from Unsatisfied Claim
and Judgment Fund); Kugler v. Banner Pontiac–Buick, Opel, Inc.,
120 N.J. Super. 572, 582 (Ch. Div. 1972) (finding no right to
jury trial for CFA action by Attorney General).

18 A-5684-11T4
requires that the legislative intent be clearly and plainly

expressed in order to effectuate a change."). Therefore, we

should be reluctant to find an implied right to a jury trial, if

the right is not already protected by the Constitution.4

In Shaner, the Court also engaged in a two-step analysis,

first finding that no right to a jury trial was implied by the

Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, nor

was the right grounded in the Constitution. Shaner, supra, 116

N.J. at 455.5 With respect to an implied right, the Court

examined the evil that the LAD was intended to address; the

structure of the statute, which authorized administrative and

judicial actions by both the State and private litigants; and

the remedies available to different parties in the different

forums. The Court concluded that the generally equitable nature

of the relief authorized was inconsistent with a finding of an

implied right to a jury trial. Id. at 445-46.

4
We recognize that the Act is also a remedial statute, which we
liberally construe. Land, supra, 186 N.J. at 173 (stating "we
must construe the Act's provisions liberally to accomplish the
Legislature's broad remedial goals."). However, as we discuss
below, a jury trial mandate would not necessarily further the
remedial goals of the Act. Therefore, regarding the jury trial
issue, the limiting canon of statutory interpretation, dealing
with statutes in derogation of the common law, would prevail
over the expansive canon, addressing remedial statutes.
5
The Legislature subsequently amended the LAD to provide a right
to a jury trial. L. 1990, c. 12, § 2 (codified as amended at
N.J.S.A. 10:5-13).

19 A-5684-11T4
 Following Shaner, supra, we found no right to a jury trial

in Sailor. In Sailor, supra, the Commissioner brought a civil

action pursuant to N.J.S.A. 17:33A-5a, seeking civil penalties,

costs, fees, and restitution of $13,000 to the affected insurer,

Allstate.6 We relied on the Legislature's silence on the issue

of a jury trial right. We noted the Legislature knows how to

require a jury trial, but did not expressly require one in the

Act. 355 N.J. Super. at 322. We concluded on that basis there

was no statutory right. Ibid.

Applying these principles, we conclude there is no

statutorily implied right to a jury trial in an insurer's action

under N.J.S.A. 17:33A-7, where none is expressly provided.

Although the Legislature's silence is not dispositive, it is a

significant factor weighing against the finding of a statutorily

implied right. As noted above, we should be reluctant to infer

statutory provisions of law when the Legislature has not seen

fit to expressly include them.

The structure of the Act, and the remedies provided also do

not clearly compel the conclusion that the Legislature

6
The court did not address the basis for the Commissioner
seeking restitution in a civil action, as the Act appears to
authorize the Commissioner to seek only penalties, court costs
and attorney's fees in a civil action; and to authorize pursuit
of restitution only in an administrative order. Compare
N.J.S.A. 17:33A-5b (civil actions), with N.J.S.A. 17:33A-5c
(administrative orders).

20 A-5684-11T4
contemplated jury trials. First, the Act has expressly

authorized, since 1997, the Commissioner's resort to an

administrative forum where jury trials are precluded. We

recognize defendants' argument that the implied jury trial right

pertains only to an insurer's action for damages. However, the

Act permits the Commissioner to issue restitutionary orders — to

restore any losses to an insurer, which may only be challenged

before the OAL, and then in a summary proceeding, which

precludes a jury.

We also attach significance to the Act's explicit

designation of the court as the finder of fact regarding the

presence of a pattern of violations, a prerequisite to imposing

treble damages. Had the Legislature intended parties to be

entitled to a jury, it would not have carved out this critical

fact issue for the court's determination.

Although we discuss at greater length in our constitutional

analysis the nature of the cause of action and relief, we reject

defendants' argument that the Legislature must have contemplated

jury trials because an insurer's civil action under the Act is

grounded in legal fraud-like claims, and an insurer seeks

monetary compensatory damages. Defendants argue these are

analogous to a claim at common law of legal fraud for which a

jury right attaches. Suffice it to say here the analogy is too

21 A-5684-11T4
weak to support a finding of an implied statutory right. As we

discussed, a violation may fall far short of legal fraud. Also,

although an insurer is entitled to seek "compensatory damages,"

the Commissioner may seek "restitution" of an insurer's losses.

A general purpose of the statute is also expressly

restitutionary in nature. N.J.S.A. 17:33A-2. Restitution is an

inherently equitable form of relief. Sailor, supra, 355 N.J.

Super. at 323-24 (citing Wanaque Borough Sewerage Auth. v. Twp.

of W. Milford, 144 N.J. 564, 575 (1996)).

Nor does the broader intent of the Act, or its Legislative

history compel a finding of an implied jury trial right. The

Act is expressly intended to "confront aggressively the problem

of insurance fraud . . . by facilitating the detection of

insurance fraud, eliminating the occurrence of such fraud

through the development of fraud prevention programs, requiring

the restitution of fraudulently obtained insurance benefits, and

reducing the amount of premium dollars used to pay fraudulent

claims." N.J.S.A. 17:33A-2. The Legislature's apparent goal to

create a swift and cost-effective remedy is evident in the 1997

amendments, which authorized non-jury administrative actions.

Although trial by jury holds a position of high regard in our

system of justice, Lyn-Anna Props. v. Harborview Dev. Corp., 145

N.J. 313, 332-33 (1996), speed and efficiency are usually not

22 A-5684-11T4
included among its many strengths. See Shaner, supra, 116 N.J.

at 442 (noting the "attendant delays" of jury trials).

Finally, we are not persuaded that Zorba compels a

different result. We need not address whether we agree with the

panel's statutory analysis of the CFA. Although the court in

Zorba expressly avoided a constitutional analysis, finding

instead a jury right was implied by that statute, the Supreme

Court recently re-interpreted the holding as based on the

constitutional right to a jury. In JCP&L, supra, the Court

noted that the panel in Zorba "inferred that a jury trial right

should attach." 212 N.J. at 592 (citing Zorba, supra, 362 N.J.

Super. at 137). However, after describing the panel's analysis

of the bases for, and nature of, CFA relief, the Court

characterized the holding as constitutionally grounded. "For

those reasons the Appellate Division concluded that a trial by

jury constitutionally was required for this common-law fraud-

based cause of action." JCP&L, supra, 212 N.J. at 593 (emphasis

added) (citing Zorba, supra, 362 N.J. Super. at 140).

We also decline to apply Zorba because of distinctions

between the CFA and the Act. The Zorba panel likened treble

damages, available under the CFA, to punitive damages; they,

along with compensatory damages and attorney's fees were the

"hallmark of a legal action." Zorba, supra, 362 N.J. Super. at

23 A-5684-11T4
138. However, unlike the Act, the CFA does not assign to the

court the task of finding the predicate fact for awarding treble

damages. Compare N.J.S.A. 56:8-19 (stating, under the CFA, the

court shall award threefold the compensatory damages sustained,

without stating who shall determine the quantum of damages),

with N.J.S.A. 17:33A-7b (stating, under the Act, the court shall

determine whether there is a pattern of violations, and then

shall award treble the damages sustained, which includes

investigative costs and attorney's fees).

Moreover, the Zorba panel did not address the tension

between inferring a jury trial right, and authorizing the

administrative award of restitution. Compare N.J.S.A. 56:8-15

(stating Attorney General may seek restoration to a "person in

interest" of "moneys or property . . . acquired by means of an

unlawful practice"), with N.J.S.A. 17:33A-5c (stating

Commissioner may seek restitution of insurer's losses).

In sum, we find no statutorily implied right to a jury

trial in the Act.

D.

We therefore consider whether — despite the legislative

silence — the right to a jury is guaranteed by the Constitution,

which states that "right of trial by jury shall remain

inviolate." N.J. Const., art I, ¶ 9. "It is well-established

24 A-5684-11T4
that this protection applies to civil cases only where the right

to a jury trial existed at common law and does not normally

apply to cases in equity." JCP&L, supra, 212 N.J. at 589

(citation omitted). "'Only those actions that triggered the

right of a jury trial that predated our State Constitutions, and

those that were created anew with enactment of New Jersey's 1776

Constitution, the 1844 Constitution, or the 1947 Constitution

serve as the basis for that constitutional right today.'" Ibid.

(quoting Ins. Co. of N. Am. v. Anthony Amadei Sand & Gravel Co.,

162 N.J. 168, 175-76 (1999)). "Generally, the New Jersey

Constitution protects the right of trial by jury in legal, but

not equitable, actions." Ins. Co. of N. Am., supra, 162 N.J. at

176.

In determining whether a right to a jury trial attaches to

a statutory action, a court must apply a historical analysis.

"When determining if a jury trial is required under the State

Constitution, both the historical basis of the cause of action

and the relief sought must be considered. The remedy sought

'remains the most persuasive factor.'" JCP&L, supra, 212 N.J.

at 589 (citation omitted) (quoting Weinisch v. Sawyer, 123 N.J.

333, 344 (1991)). However, the mere availability of monetary

relief is not decisive. Shaner, supra, 116 N.J. at 451. The

Court has considered whether, despite the availability of

25 A-5684-11T4
compensatory monetary damages, other forms of available relief

are equitable in nature. Weinisch, supra, 123 N.J. at 344-45;

Shaner, supra, 116 N.J. at 453 (noting forms of relief under LAD

are "predominantly equitable in nature").

The Court may also consider whether the statute is

"distinctively oriented to the achievement of . . . broad

objectives" that go beyond the remedy of an individual wrong.

Shaner, supra, 116 N.J. at 453. The Court has "eschewed a focus

solely on the remedy sought and [has] espoused a more eclectic

view of the standards that serve to characterize the essential

nature of a cause of action in giving meaning and scope to the

right to a jury trial" under the Constitution. Id. at 450.

The Court "consider[s] the nature of the underlying

controversy as well as the remedial relief sought in determining

whether the cause of action has been historically primarily

equitable or legal in nature." Id. at 450-51. "[W]here actions

created by statute have distinctive features with respect to

substantive and procedural standards that would render them

virtually unknown to the common law, there is no right to jury

trial." Shaner, supra, 116 N.J. at 451.

Consistent with this approach, we have held there is no

constitutional jury trial right under the New Jersey Antitrust

Act, N.J.S.A. 56:9-1 to -19, although both money damages and

26 A-5684-11T4
injunctive relief are available remedies. Boardwalk Props.,

Inc. v. BPHC Acquisition, Inc., 253 N.J. Super. 515, 529-30

(App. Div. 1991). Viewing the remedies available to the

Attorney General, together with those available to private

litigants, we concluded the remedies were "predominantly

equitable." Id. at 530. We also gave weight to the broad

purpose of the statute. "While a private litigant may

financially gain from a suit under the statute, the overriding

purpose of the Act is to advance the public policy in favor of

competition." Ibid. Finally, we noted the statute's

"'distinctive features . . . virtually unknown to the common

law[.]'" Ibid. (quoting Shaner, supra, 116 N.J. at 451).

Applying these principles, we find no constitutional right

to a trial by jury under the Act. Focusing first on the

individual relief, an insurer-plaintiff may recover not only

money damages if incurred, but also attorney's fees and costs of

investigation, regardless of whether it suffered damage. The

recovery of attorney's fees and costs is equitable in nature.

See Shaner, supra, 116 N.J. at 451 ("[E]ven though plaintiff

contends that he seeks only monetary relief, he claims

attorney's fees, a distinctive statutory and equitable form of

compensation.").

27 A-5684-11T4
 Moreover, the monetary relief available to an insurer —

although denominated as compensatory damages in N.J.S.A. 17:33A-

7a — is in the nature of restitution. Plaintiffs seek the

refund of wrongfully paid PIP benefits; they seek no further

consequential damages. As we have noted, restitution is an

equitable remedy. See Shaner, supra, 116 N.J. at 444 n.1

(stating that "not all monetary relief is legal relief but may

be considered equitable relief if it is discretionary and

considered a form of restitution rather than damages" (citation

omitted)); Ramirez v. Autosport, 88 N.J. 277, 288 (1982)

(referring to the "equitable doctrine of restitution the purpose

of which is to restore plaintiff to as good a position as he

occupied before the contract"); Sailor, supra, 355 N.J. Super.

at 323; Kugler, supra, 120 N.J. Super. at 581 (noting that

remedies under CFA "are injunction, restitution and appointment

of a receiver, all clearly equitable in nature").

The nature of the cause of action is significantly

different from legal fraud. A private action under the Act —

which does not require proof of scienter — is more akin to

equitable fraud, to which no jury trial right attaches. See

Weintraub v. Krobatsch, 64 N.J. 445, 455 (1974) (stating that

claim seeking rescission based on equitable fraud is for the

trial judge, not a jury). However, even elements of equitable

28 A-5684-11T4
fraud — proof of reasonable reliance and damage — are jettisoned

by the Act. In sum, the cause of action has "distinctive

features . . . virtually unknown to the common law[.]" Shaner,

supra, 116 N.J. at 451.

The Act's broad public policy objectives also support our

conclusion. The Act enlists insurers in the fight against

insurance fraud. The Act requires insurers to develop plans to

combat insurance fraud and threatens insurers with sanctions if

they do not comply. N.J.S.A. 17:33A-15c. The Legislature was

motivated in significant part by the goal of controlling the

cost of insurance for insurance consumers generally. The

Legislature concluded that undeserved and wrongfully obtained

insurance or benefits imposed a significant cost upon insurers

which they passed on to other consumers in their rate-setting

process. N.J.S.A. 17:33A-2. Like the broad public policy goals

of the LAD and the Antitrust Act, the Act's general purpose to

combat fraud and control insurance rates supports the conclusion

that defendants have no constitutional right to a jury trial.

In sum, we discern no constitutional right to a trial by

jury for private claims under the Act.

Affirmed.

29 A-5684-11T4