                        NOT FOR PUBLICATION WITHOUT THE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-3896-15T3

HACKENSACK SURGERY CENTER
a/s/o CHRISTINA PEREIRA,

        Plaintiff-Respondent/
        Cross-Appellant,

v.

ALLSTATE INSURANCE COMPANY,

     Defendant-Appellant/
     Cross-Respondent.
_________________________________

              Argued April 4, 2017 – Decided September 5, 2017

              Before Judges Reisner and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Docket No. L-
              3829-15.

              Robert A. Cappuzzo argued the cause for
              appellant/cross-respondent (Chasan Leyner &
              Lamparello, attorneys; Mr. Cappuzzo, of
              counsel and on the brief; Richard W. Fogarty,
              on the brief).

              Julie   Lefkowitz   argued  the            cause     for
              respondent/cross-appellant.


PER CURIAM
     Defendant Allstate Insurance Co. (Allstate) appeals from an

April 7, 2016 order compelling it to comply with a personal injury

protection    (PIP)   arbitration       award     to   pay   $2,036.99,   plus

interest,    attorney's    fees   and    costs,   to   plaintiff   Hackensack

Surgery Center (HSC) as subrogee of Christina Pereira.             HSC cross-

appeals a provision of the same order that denied its request for

attorney's fees and costs related to its efforts to confirm the

arbitration award.     Having considered the record and applicable

law, we affirm.

                                        I.

     On March 31, 2013, Pereira was involved in an automobile

accident, which resulted in her receiving medical treatment with

various providers.        She was insured under a policy by Allstate

that provided PIP benefits totaling $15,000 per accident. Allstate

denied payment to HSC, one of Pereira's treatment providers, based

on its determination that the treatment rendered on September 4,

2013, and totaling $8,527.07, was not medically necessary.                 HSC

filed a demand for arbitration to be conducted by Forthright

Solutions (Forthright).       Prior to the August 6, 2015 arbitration

hearing, Allstate advised that there was $2,132.74 in remaining

PIP benefits due to prior payments totaling $12,867.26.

     During the pendency of HSC's claim, another one of Pereira's

treatment providers, Thermocare Plus, LLC (Thermocare) sought to

                                        2                             A-3896-15T3
reverse Allstate's denial of its bill totaling $2,032.74 for

services rendered on September 27, 2013, by utilizing Allstate's

internal appeals process.            In a letter dated August 21, 2015,

Allstate    advised     Thermocare      that       the    previous        denial     was

"overturned"     and      placed     Thermocare's         "bill     in     line      for

processing."     The record does not indicate the time of day that

Allstate decided to pay Thermocare or issued the letter notifying

Thermocare.

     On the same date of Allstate's letter to Thermocare, the

arbitration    award    -    dated   the     day   before,       August    20    -   was

electronically transmitted to HSC and Allstate at 12:29 p.m.                         The

arbitrator determined that, based upon review of the medical

records, Allstate's internal appeals process, and relevant case

law and state statutes, HSC's treatment to Pereira was medically

necessary and awarded HSC the full amount it sought, $8,438.58,

plus interest.      He noted, however, that since $12,867.26 of the

$15,000 PIP benefits had already been paid, the award to HSC was

subject to "the policy limits for medical payments, still available

to [HSC] at the time of the award." HSC was also awarded attorney's

fees and costs totaling $1325 under N.J.S.A. 39:6A-5(h).

     On    August   28,      2015,   seven     days      after    receipt       of   the

arbitration award and the date of the internal appeal decision

approving     payment       to   Thermocare,       Allstate       paid     Thermocare

                                        3                                       A-3896-15T3
$2,032.74, plus interest.      Allstate subsequently complied with the

arbitration award on September 15, 2015, by processing a payment

to HSC in the amount of $100, plus interest, reflecting the amount

of the remaining PIP benefits.

      Dissatisfied with Allstate's decision to pay Thermocare's

bill before paying the arbitration award, HSC filed an order to

show cause contending that it should have been paid first, and

sought an additional payment of $2,036.99, as well as attorney's

fees and costs caused by its further legal action.                    Following

argument on April 7, 2016, the trial judge issued an order and

rendered   an    oral   decision    requiring      Allstate    to   pay   HSC    an

additional $2,036.99 that was "remaining on the date of the [August

21,   2015]    arbitration    award,"       and   denied   HSC's    request     for

additional     attorney's    fees   and     costs.     The    judge   noted     the

uniqueness of this situation and in the absence of guiding case

law, and reasoned:

              When [August 21, 2015,] came around[,]
              somebody at Allstate . . . could have [seen]
              we have a problem here. We're only sitting
              on $2,036.99.    We've got this [Thermocare]
              bill [,] which we are in the process of
              committing to pay, or we've already committed
              to pay it, and now we've been told as part of
              an arbitration proceeding that we have to pay
              this $8,000 to [HSC]. . . . I understand the
              mechanism was put in place to pay [Thermocare]
              but the check hadn't been issued. There could
              have been a stop . . . payment of the check.


                                        4                                 A-3896-15T3
           And I don't believe the equitable outcome
           occurred here.

           I'm not in any way saying that Allstate
           engaged in any sort of bad faith or that
           Allstate said, you know what[,] let's stick
           it to [HSC] for taking us to arbitration.
           Let's beat them out of money and give it to
           [Thermocare]. . . . But that's not the
           ultimate deciding point. The point is there
           [were] certain limited funds and there were
           bills that needed to be paid [by] Allstate,
           and there wasn't enough money to pay both of
           them in full. In fact, there wasn't enough
           money to pay either one of them in full.

               . . . .

           So, what I'm going to do is I'm going to rule
           in favor of [HSC]; however, I'm going to
           direct that the remaining $2036.99 be used to
           pay the [HSC] bill.

           I'm not awarding legal fees on top of that. I
           think that would unfair to Allstate. Allstate
           is already paying more than their policy
           limit.

This appeal and cross-appeal followed.

                                    II.

     In its appeal, Allstate contends that the trial court's order

is contrary to Endo Surgi Ctr., P.C. v. Liberty Mut. Ins. Co., 391

N.J. Super. 588, 594 (App. Div. 2007), because it had depleted the

PIP benefits under Pereira's policy limits by paying Thermocare

and that requiring payment to HSC would result in PIP payments

beyond   the   policy    limits.    Allstate   also     argues   that     under

Forthright's     rules,     it     had    thirty-five     days    to        seek

                                     5                                  A-3896-15T3
modification/clarification      of   the   arbitration    award   with   the

arbitrator, and under and N.J.S.A. 2A:23A-13 and N.J.A.C. 11:3-

5.6(f), it had forty-five days to vacate, modify, or correct the

arbitration award to the Superior Court, thus it was under no

obligation to comply with the arbitration award to pay HSC when

the award was received on August 21, 2015.         Thermocare's bill was

approved for payment on that same day, Allstate maintains that it

satisfied N.J.S.A. 39:6A-6, by paying Thermocare the balance of

the PIP benefits available when Thermocare's bill had accrued.

     Since the salient facts are not in dispute, and the issue

presented is a question of law, which we review de novo.              Davis

v. Devereux Found., 209 N.J. 269, 286 (2012).            We begin with the

understanding that, absent bad faith, an insurer may settle with

one or more claimants, notwithstanding that the settlements may

exhaust the policy limits.      Goughan v. Rutgers Cas. Ins. Co., 238

N.J. Super. 644, 649 (Law Div. 1989) (limiting an underinsured

motorist   carrier's   credit   against    the   tortfeasor's     liability

insurance policy to the amount that remains available to the

injured party after the tortfeasor's insurer made payments to

other injured victims of the accident).          PIP benefits, which are

provided regardless of fault, are governed by the collateral source

rule in the Automobile Insurance Cost Reduction Act (AICRA),

N.J.S.A. 39:6A-1 to -35.    Rivera v. Morales, 373 N.J. Super. 494,

                                     6                              A-3896-15T3
497 (App. Div. 2004).        Such benefits shall be payable "as [the]

loss accrues, upon written notice of such loss," N.J.S.A. 39:6A-

6, and "without the need or determination of fault or other time-

consuming litigation."       Id. at 500.

       Absent any guidance by statute, regulation, or legislative

history, we construe the phrase "as [the] loss accrues," N.J.S.A.

39:6A-6, to require the insurer to pay PIP benefits immediately

upon   determination   that    the   loss       is   due   and   owing,   without

consideration that the loss may also be covered by another source,

subject, however, to the insurer recouping the amount paid from

either the insured, if the insured received payment from another

source stated in the statute, or from the other source itself.

See Toppi v. Prudential Ins. Co. of Am., 153 N.J. Super. 445, 450

(Cty. D. Ct. 1977) ("To allow an insurer to unilaterally deduct

temporary disability benefits which it deems will be payable to

its insured violates the mandate of N.J.S.A. 39:6A-6 which requires

the payment of benefits as a 'loss accrues.'").

       Applying these principles, we conclude that HSC is entitled

to   an   additional   PIP   payment       of   $2,036.99    pursuant     to   the

arbitration.     In reaching this decision, we acknowledge that

Allstate has already paid this amount to Thermocare and payment

to HSC is beyond the policy limits.                   Yet, under the unique

situation here, HSC is entitled to this additional amount based

                                       7                                  A-3896-15T3
upon several factors that lead us to determine that HSC's bill was

due and owing before Thermocare's bill.               HSC's bill was for

services    rendered      before    Thermocare    provided     its     services.

Allstate received HSC's bill before it received Thermocare's bill.

The August 20, 2015 arbitration award stated that payment to HSC

was subject to PIP benefits available at the "time of the award,"

and Thermocare had not been paid or authorized to be paid by the

date of the award.         There is no proof that Allstate's internal

appeal reversal on August 21, 2015, to pay Thermocare was finalized

before Allstate received the arbitration award that same day

compelling payment to HSC.           Allstate did not issue payment to

Thermocare until seven days after receiving the arbitration award.

      Turning to the cross-appeal, HSC, without citing any legal

standard contends that it is customary for attorney's fees and

costs to be awarded for a confirmed arbitration award, and that

the   Legislature's       "strong   desire   to   assure   accident      victims

receive    prompt   and    necessary   medical    care,    .   .   .   would    be

undermined" if attorney's fees and costs are not allowed.                 We are

unpersuaded.

      An award of attorney's fees in a PIP action may include

counsel's efforts both before the umpire and before the trial

court.     Allstate Ins. Co. v. Sabato, 380 N.J. Super. 463, 474

(App. Div. 2005).         Permitting reimbursement of attorney's fees

                                       8                                 A-3896-15T3
reflects "[t]he theory . . . that one covered by a policy is

entitled to the full protection provided by the coverage, and that

benefit should not be diluted by the insured's need to pay counsel

fees in order to secure its rights under the policy."        Liberty

Vill. Assocs. v. W. Am. Ins. Co., 308 N.J. Super. 393, 406 (App.

Div.) (citing Sears Mortg. Corp. v. Rose, 134 N.J. 326, 356 (1993),

certif. denied, 154 N.J. 609 (1998).    To effect that theory, "[a]

successful insured is presumptively entitled to attorney's fees

and need not establish that the insurer acted in bad faith or

arbitrarily in declining a claim."    Sabato, supra, 380 N.J. Super.

at 473-74 (citing Liberty Vill., supra, 308 N.J. Super. at 405-

06).

       Despite the presumption in favor of reimbursement, however,

under Rule 4:42-9(a)(6) "the trial judge has broad discretion as

to when, where, and under what circumstances counsel fees may be

proper and the amount to be awarded."    Iafelice ex rel. Wright v.

Arpino, 319 N.J. Super. 581, 590 (App. Div. 1999) (citations

omitted).

            Factors which the court may consider include:
            (1) the insurer's good faith in refusing to
            pay   the  demands;   (2)   excessiveness   of
            plaintiff's demands; (3) bona fides of one or
            both of the parties; (4) the insurer's
            justification in litigating the issue; (5) the
            insured's     conduct     in      contributing
            substantially to the necessity for the
            litigation on the policies; (6) the general

                                  9                          A-3896-15T3
         conduct of the parties; and (7) the totality
         of the circumstances.

         [Enright v. Lubow, 215 N.J. Super. 306, 313
         (App. Div.) (internal citations omitted),
         certif. denied, 108 N.J. 193 (1987).]

"[F]ee determinations by trial courts will be disturbed only on

the rarest of occasions, and then only because of a clear abuse

of discretion."   Packard-Bamberger & Co., Inc. v. Collier, 167

N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292,

317 (1995)).

    Here, the trial judge denied additional attorney's fees and

costs to HSC because of Allstate's good faith in handling HSC's

PIP claim and the depletion of available PIP benefits.   We do not

find sufficient ground to disturb his exercise of discretion in

denying reimbursement of additional attorney's fees and costs.

    Affirmed.




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