ABUSSAMAA R. RAMZIDDIN VS. LGTC/ACCURATE MED TRANS NJ (L-0828-18, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5644-18

ABUSSAMAA R.
RAMZIDDIN,

Plaintiff-Appellant,

v.

LGTC/ACCURATE MED
TRANS NJ and ACCURATE
MEDICAL TRANS,

Defendants-Respondents.
____________________________

Argued January 27, 2021 – Decided February 25, 2021

Before Judges Whipple, Rose and Firko.

On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-0828-18.

Abussamaa R. Ramziddin, appellant, argued the cause
pro se.

David J. DiSabato argued the cause for respondents
(DiSabato & Considine, LLC, attorneys; David J.
DiSabato, on the brief).

PER CURIAM
 Plaintiff Abussamaa R. Ramziddin, a self-represented litigant, appeals

from an August 29, 2019 order granting summary judgment to defendant

LogistiCare Solutions, LLC (LogistiCare), improperly pled as LCTC/Accurate

Med Trans NJ. We affirm.

I.

We derive the following facts from the summary judgment motion record

viewed in the light most favorable to plaintiff. Templo Fuente De Vida Corp.

v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Plaintiff, a

Medicaid recipient, alleges he arranged for non-emergency medical

transportation to his healthcare provider appointments on two dates and that co-

defendant Accurate Medical Transport (Accurate) did not get him to his

appointments on time. LogistiCare is a non-emergency medical transportation

(NEMT)1 broker that arranges transportation for eligible Medicaid participants

in this State.

On January 19, 2018, plaintiff was scheduled through LogistiCare to have

Accurate drive him to his primary care doctor for prescription medication

1
According to the Centers for Medicare and Medicaid Services, Medicaid
covers the cost of "non-emergency medical transportation" for eligible patients
to and from the doctor’s office, the hospital, or another medical office for
Medicaid-approved care. CENTERS FOR MEDICARE AND MEDICAID SERVICES,
FACT SHEET: LET MEDICAID G IVE Y OU A RIDE (April 2016).
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maintenance and to his orthopedic doctor, who was treating plaintiff for severe

osteoarthritis. Plaintiff arrived late for the appointments because Accurate did

not pick him up at the time he requested. The primary care doctor was able to

reschedule plaintiff's appointment, but since the doctor "missed the window to

have him put the refills in the computer," plaintiff had to see a cardiologist

instead in April 2018 to obtain his medication.

On January 29, 2018, plaintiff contacted LogistiCare again to arrange

transportation for another appointment, this time with a rheumatologist , to

undergo injections in his knees. Accurate arrived more than an hour late, and

LogistiCare could not confirm for plaintiff whether Accurate was running on

time. Upon arrival at the rheumatologist's office, plaintiff was told the doctor

would be unable to treat him because of his late arrival, and plaintiff advised

LogistiCare of this. Thereafter, plaintiff waited two-and-a-half hours for

Accurate to take him home.

On April 13, 2018, plaintiff filed a complaint against defendants in the

Law Division alleging he missed appointments and was "forced to pay for

medication out[-]of[-]pocket" and suffered "severe anxiety, paranoia, and

anxiousness jeopardizing [his] mental health that is regulated by mental health

professionals." The record shows plaintiff sought $85,000 in compensatory and

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punitive damages, although not pled with specificity in the complaint. Plaintiff

also alleged in his complaint that the "gross negligence" and "insurance fraud"

on the part of defendants delayed him "from receiving life sustaining

medication" and led to a denied medical examination. LogistiCare filed its

answer on July 26, 2018. Plaintiff served Accurate, but it never filed an answer

or otherwise moved with respect to the complaint, resulting in a final judgment

by default being entered on February 15, 2019.

In its discovery responses, LogistiCare certified it is an NEMT broker that

arranges transportation for Medicaid recipients. LogistiCare asserted in its

answers to interrogatories that it has no contractual or implied relationship with

plaintiff. At the close of discovery, LogistiCare filed a motion for summary

judgment. LogistiCare submitted the certification of Lori Bonderowitz in

support of its motion for summary judgment. She certified that "LogistiCare is

not affiliated with, or related to, [Accurate]" and "does not contract with

individual Medicaid participants, such as [p]laintiff." Bonderowitz's

certification also stated "LogistiCare does not provide the actual transportation

for requesting participants" and "does not have a contractual relationship with

[p]laintiff."

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 In opposition to the motion, plaintiff submitted a July 2016 report from

the Department of Health and Human Services Office of Inspector General

entitled, "New Jersey Did Not Adequately Oversee Its Medicaid Nonemergency

Medical Transportation Brokerage Program." Plaintiff did not file a responding

statement either admitting or disputing each of the facts in LogistiCare's motion

as required by Rule 4:46-2(b).

On August 1, 2019, the trial court heard oral argument on LogistiCare's

motion. In its oral opinion, the court found that plaintiff failed to present

evidence to establish a prima facie case of negligence or the existence of a

contract between himself and LogistiCare. The court reasoned and concluded:

I'm going to grant the motion respectfully. You know,
that these aren't mere technicalities. These are the legal
proofs that have to be established in order to get this
case before a factfinder, and it hasn't been done here.
We have a trial scheduled for next week.

In terms of the negligence claim here, there's no
disputed facts on the elements of the negligence claim,
meaning that you haven't established that Logisti[C]are
owed a duty, that Logisti[C]are breached any duty, that
there's any—a breach was the proximate cause of any
harm or that there were any damages.

With respect to the contract claim, there's no
evidence here of a contract between the plaintiff and
Logisti[C]are. There's no evidence here of a breach or
that any damages were sustained as a result of the
alleged breach.

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 So taking all facts and inferences in your favor as
I'm required to do in this type of case, in this type of
motion, on this motion for summary judgment, and
reading your papers very indulgently, which I had done,
there's nothing here that allow[s] the case can go
forward in terms of being presented to a jury or any type
of factfinder.

Accordingly, the court granted LogistiCare's motion for summary

judgment and scheduled a proof hearing as to Accurate for August 27, 2019.

The court informed plaintiff to bring medical reports and any proof of economic

loss to the proof hearing and to be prepared to "show some type of relationship

between the two" in respect of Accurate.

Plaintiff and counsel for LogistiCare appeared at the August 27, 2019

proof hearing; no one appeared on behalf of Accurate. Plaintiff testified at the

hearing that defendant LogistiCare caused him to miss routine treatment and

medication, which in turn caused him pain and disrupted his treatment and

medication schedule. Although plaintiff's appendix includes three letters from

medical providers detailing the importance of his uninterrupted medical

treatment,2 the letters do not state plaintiff was injured by the delayed

2
The trial court stated at the August 27, 2019, hearing that it had not seen the
letters; however, at the hearing, plaintiff explained the content of the letters he
said he submitted. The court found that even if they had been included in

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appointments. The letters are dated November 5, 2019, April 5, 2019, and April

1, 2019—all at least one year after the January 2018 incidents at issue here.

Notably, the November 2019 letter is dated after the two August 2019 hearings;

thus, the trial court would not have received it, nor could it have been part of

discovery.

In its ruling following the proof hearing, the court found plaintiff did not

meet his burden of proof on the issue of negligence, breach of contract, and

damages as against Accurate and awarded no relief. This appeal ensued.

On appeal, plaintiff argues the trial court erred in granting summary

judgment to LogistiCare and dismissing the complaint because: (1) LogistiCare

breached its duty of care to plaintiff and failed to engage in mandatory, standard

operating grievance procedures and policies pursuant to the State's NEMT code;

and (2) alternatively, this court should apply the last clear chance doctrine to

compensate plaintiff for his pain and suffering. Specifically, in his notice of

appeal, plaintiff asserts that LogistiCare caused him monetary loss, "severe

anxiety, paranoia, and anxiousness . . . triggering [his] [s]chizophrenic disorder

. . . . Continuously keeping [p]laintiff [in a] severe agitated and aggravated

plaintiff's filings, they would still not establish a connection between plaintiff's
condition and the alleged delay in treatment.
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state, provoking bouts of depression caused by [LogistiCare's] lackadaisical

attitude and maladroit behavioral approach[,] which resulted in severe edema

and palpitations . . . ." LogistiCare seeks affirmance of the order granting its

summary judgment motion or in the alternative, summary disposition of

plaintiff's appeal pursuant to Rule 2:8-3(b).

II.

We review a summary judgment decision de novo, under the same

standard that governs the trial court. RSI Bank v. Providence Mut. Fire Ins. Co.,

234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014));

Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016). Summary judgment must

be granted if "the pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact challenged and that the moving party is

entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995). If no issue of fact

exists, an appellate court "affords no special deference to the legal

determinations of the trial court." RSI Bank, 234 N.J. at 472 (quoting Templo

Fuente, 224 N.J. at 199).

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 A non-moving party "cannot defeat a motion for summary judgment

merely by pointing to any fact in dispute." Brill, 142 N.J. at 529. Instead, the

opposing party must "demonstrate by competent evidential material that a

genuine issue of fact exists[.]" Igdalev, 225 N.J. at 479-80 (alteration in

original) (quoting Robbins v. Jersey City, 23 N.J. 229, 240-41 (1957)). The

court must then consider whether that party's proposed evidence, "when view ed

in the light most favorable to the non-moving party, [is] sufficient to permit a

rational factfinder to resolve the alleged disputed issue in favor of the non-

moving party." Brill, 142 N.J. at 540.

It remains "the unqualified affirmative burden of [the non-moving] part[y]

to make a complete and comprehensive showing why summary judgment should

not be entered . . . ." Lombardi v. Masso, 207 N.J. 517, 556 (2011) (Rivera-

Soto, J., dissenting). Bare conclusions, without factual support, will not defeat

summary judgment. Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129,

134 (App. Div. 1999).

"To sustain a cause of action for negligence, a plaintiff must establish four

elements: '(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and

(4) actual damages.'" Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo

v. County of Essex, 196 N.J. 569, 584 (2008)). A plaintiff must prove by a

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preponderance of the evidence that the defendant's alleged negligence was a

proximate cause of the injury. Id. at 52. A "plaintiff bears the burden of

establishing those elements 'by some competent proof.'" Davis v. Brickman

Landscaping, Ltd., 219 N.J. 395, 406 (2014) (citing Buckelew v. Grossbard, 87

N.J. 512, 525 (1981)).

"It has long been true that '[d]eterminations of the scope of duty in

negligence cases has traditionally been a function of the judiciary.'" Estate of

Desir v. Vertus, 214 N.J. 303, 322 (2013) (alteration in original) (quoting Kelly

v. Gwinnell, 96 N.J. 538, 552 (1984)). The Supreme Court has identified a four-

part framework that guides a duty analysis, requiring evaluation of four factors:

"the relationship of the parties; the nature of the risk; the ability to exercise care;

and public policy considerations." Id. at 317 (quoting Hopkins v. Fox & Lazo

Realtors, 132 N.J. 426, 438-39 (1993)). However, "[i]n carrying out this

important function, [the Supreme Court has] recognized that '[t]he actual

imposition of a duty of care and the formulation of standards defining such a

duty derive from considerations of public policy and fairness.'" Id. at 322 (third

alteration in original) (quoting Hopkins, 132 N.J. at 439).

At the August 1, 2019 motion hearing, the trial court found plaintiff had

not established that LogistiCare breached a duty to plaintiff. Indeed, plaintiff

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does not dispute this, and conceded at the August 28, 2019 proof hearing that

Accurate, not LogistiCare, failed to perform its duty.

According to LogistiCare's records, Accurate did not arrive in time for

plaintiff's scheduled pickup on January 19, 2018. Again, plaintiff does not

dispute that LogistiCare did as he requested, and plaintiff did not present any

evidence otherwise. As the Supreme Court has noted, to prove the elemen t of

causation, plaintiff bears the burden to

introduce evidence which affords a reasonable basis for
the conclusion that it is more likely than not that the
conduct of the defendant was a cause in fact of the
result. A mere possibility of such causation is not
enough; and when the matter remains one of pure
speculation or conjecture, or the probabilities are at best
evenly balanced, it becomes the duty of the court to
direct a verdict for the defendant.

[Davidson v. Slater, 189 N.J. 166, 185 (2007) (quoting
Reynolds v. Gonzalez, 172 N.J. 266, 284 (2002)).]

Here, plaintiff's proofs fail to show LogistiCare breached any duty of care

under negligence principles and fail to show a contractual relationship between

the parties. Accordingly, the trial court correctly determined there was no

breach that was the proximate cause of any harm to plaintiff. The court properly

granted summary judgment.

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 III.

We next turn to plaintiff's argument that he is entitled to punitive damages.

To award punitive damages, the factfinder must find wrongful conduct by

applying the clear and convincing evidentiary standard:

Punitive damages may be awarded to the plaintiff only
if the plaintiff proves, by clear and convincing
evidence, that the harm suffered was the result of the
defendant's acts or omissions, and such acts or
omissions were actuated by actual malice or
accompanied by a wanton and willful disregard of
persons who foreseeably might be harmed by those acts
or omissions. This burden of proof may not be satisfied
by proof of any degree of negligence including gross
negligence.

[N.J.S.A. 2A:15-5.12(a).]

Here, there were no medical reports that showed injury caused by the

delay in service to plaintiff. The trial court explained this to plaintiff at the

August 1, 2019 hearing, instructing him to bring evidence to the August 27,

2019, proof hearing:

All right, so if you're claiming some type of
medical issue from their alleged misconduct, you're
going to have to bring, you know, some type of medical
reports showing that what they did caused you to have
some type of medical issue, or if you have any type of
economic claim, you're going to have to show some
type of relationship between the two, all right?

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At the proof hearing, plaintiff stated that his damages were that LogistiCare

caused him to miss medication and treatment, resulting in edema, extreme

stiffness, inability to walk, and pain. He further stated that he had submitted

letters from his medical providers that show the importance of plaintiff

maintaining his medication schedule and treatment. However, plaintiff

conceded to the court that the letters did not connect the transportation delay to

his medical issues: "It doesn't link the actual time of it. It just states that if I

don't take this medication as regularly scheduled, it could be detrimental. It

could be very harmful."

The trial court found plaintiff did not satisfy his burden of specificity to

show "credible evidence" that his illnesses were a result of delay in treatment.

[W]e're here in a court of law, and . . . you need to
establish your damages to me by credible evidence. . . .
I would need evidence from a medical professional
through a report stating that you have these specific
ailments, illnesses, medical conditions as a result of this
delay of treatment. I don't have that here.

I appreciate generally we all need to stay on our
medications in a timely manner, and if we don't, or if
we miss our medical appointments, there could be
problems, but I don't have that specificity that's
required here. And you don't have to prove it with
complete specificity, but you do need to satisfy your
burden here, and that has not been accomplished.

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 The court was correct in its analysis. Plaintiff did not establish causation

and damages by clear and convincing evidence. Therefore, summary judgment

was properly granted to LogistiCare.

IV.

Plaintiff also argues the trial court erred in granting summary judgment to

LogistiCare on his breach of contract claim. To prevail on a breach of contract

claim, a plaintiff must show (1) a valid contract between the parties; (2) that

defendant failed to perform its obligations under the contract; and (3) that the

breach caused the claimant to sustain damages. Murphy v. Implicito, 392 N.J.

Super. 245, 265 (App. Div. 2007).

Although plaintiff alludes to a contract between the State of New Jersey

and LogistiCare, he does not provide proof such a contract exists or how it was

breached or how his claim against LogistiCare implicates that purported

contract.

"To defeat a motion for summary judgment, the opponent must 'come

forward with evidence' that creates a genuine issue of material fact." Cortez v.

Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue

Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)).

"[C]onclusory and self-serving assertions by one of the parties are insufficient

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to overcome the motion[.]" Puder v. Buechel, 183 N.J. 428, 440-41 (2005).

Applying these standards, we discern no reason to reverse.

V.

Finally, for the first time on appeal, plaintiff argues that we should apply

the "last clear chance doctrine" to the matter under review. We generally decline

to address issues not presented to the trial court.

Unless these issues pertain to the trial court's jurisdiction or "matters of

great public interest," we will not consider them. State v. Robinson, 200 N.J. 1,

20-22 (2009). See also State v. Arthur, 184 N.J. 307, 327 (2005); Nieder v.

Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Nonetheless, we add the

following brief remarks.

The "last clear chance" doctrine, now replaced by the theory of proximate

cause, has been described as the theory that responsibility for injury rests with

the party last able to avoid the accident. Latta v. Caulfield, 158 N.J. Super. 151,

155-56 (1978) (citing Brennan v. Pub. Serv. Ry. Co., 106 N.J.L. 464, 466 (E. &

A. 1930)). In his brief, plaintiff does not explain how this doctrine applies here,

but merely asserts that the trial court impermissibly assumed "defendant's

attorney[] has acted in good faith."

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 Plaintiff argues that the trial court and LogistiCare have no legal authority

to "minimize the stress of the incidents" and to measure how they exacerbated

his physical and mental condition. Further, plaintiff asserts the trial court failed

to weigh the evidence in the light most favorable to him, and argues that there

are genuine issues of material fact because LogistiCare "failed to take

reasonable steps to . . . protect [plaintiff] from harm." Again, we disagree.

Our careful review of the record shows the trial court viewed the evidence

in a light most favorable to plaintiff. The trial court conducted oral argument

and placed its findings of fact and conclusions of law on the record. Based upon

our de novo review, we conclude plaintiff presented no evidence of negligence,

gross negligence or breach of contract or resultant damages. In light of our

holding, we need not address LogistiCare's request for summary disposition of

plaintiff's appeal pursuant to Rule 2:8-3(b).

Affirmed.

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