                     RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-1622-16T2



ATLANTIC AMBULANCE CORPORATION,

     Plaintiff-Respondent,

v.                                      APPROVED FOR PUBLICATION

JOHN G. CULLUM and MARY CLARE                June 29, 2017
CULLUM,                                   APPELLATE DIVISION

     Defendants-Appellants.
___________________________

ATLANTIC AMBULANCE CORPORATION,

     Plaintiff-Respondent,

v.

HALA HITTI and ANTOINE HITTI,

     Defendants-Appellants.

_____________________________________

         Argued May 23, 2017 - Decided June 29, 2017

         Before Judges Reisner, Koblitz and Mayer.

         On appeal from an interlocutory order of the
         Superior Court of New Jersey, Law Division,
         Morris County, Docket Nos. L-264-12 and
         L-2097-12.

         Robert W. Mauriello, Jr., argued the cause for
         appellants (Graham Curtin, P.A., attorneys;
         Kelley J. Hastie and Mr. Mauriello, on the
         briefs).
            James W. Brown (Skadden, Arps, Slate, Meagher
            & Flom) of the New York bar, admitted pro hac
            vice, argued the cause for respondent (Schenck
            Price Smith & King, LLP and Mr. Brown,
            attorneys; Lauren E. Aguiar (Skadden, Arps,
            Slate, Meagher & Flom) of the New York bar,
            admitted pro hac vice, Mr. Brown and Peter A.
            Marra, on the brief).

     The opinion of the court was delivered by

MAYER, J.S.C. (temporarily assigned)

     Appellants John G. Cullum and Mary Clare Cullum (Cullum) and

Hala Hitti and Antoine Hitti (Hitti)1 were granted leave to appeal

denial of their motion for class certification.       We affirm in part

and remand in part.

     In reaching this decision, we hold that ambulance service

providers are not subject to consumer fraud claims under the

"learned professional" exception because ambulance services are

comprehensively regulated by a State agency.         We also hold that

the reasonableness of rates charged for ambulance services is a

policy matter to be addressed by the Legislature and agencies

within the Executive branch of government.         We further determine

that consumers are not required to pay a defendant's bill for

allegedly    overpriced   services,   in   order     to   establish    an

ascertainable loss under the Consumer Fraud Act.


1
  Because Hitti and Cullum were defendants and counterclaimants,
for simplicity we refer to them as "appellants" although we usually
refer to parties by their status in the trial court.

                                  2                             A-1622-16T2
       We briefly recite the relevant procedural history.                  Atlantic

Ambulance Corp. (Atlantic) filed complaints in the Special Civil

Part   against      Cullum   and    Hitti       seeking   payment   for   ambulance

services.      Cullum and Hitti filed answers and counterclaims,

alleging     that    Atlantic      overbilled      for    ambulance   services     in

violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 (CFA).

The counterclaims also asserted causes of action against Atlantic

for negligence, common law fraud, breach of contract and unjust

enrichment.2     Appellants also sought class certification on behalf

of themselves as class representatives and on behalf of all

proposed class members who were overcharged for ambulance services

during a six-year period.              The Cullum and Hitti matters were

transferred from the Special Civil Part to the Law Division and

were consolidated.           After five years of discovery, appellants

filed a motion seeking class certification.

       The   facts   giving     rise   to       appellants'   overbilling    claims

against Atlantic are undisputed.                   Cullum and Hitti initially

alleged that they did not receive services from Atlantic and,

therefore, the fees charged by Atlantic for services were improper

and/or excessive.        However, during oral argument on the class



2
  On appeal, appellants are pursuing their CFA and breach of
"quasi-contract" claims only.


                                            3                               A-1622-16T2
certification motion, counsel clarified that Cullum and Hitti

received    services,     but   claimed     the   bills     they   received   were

unconscionably high.        The dispute focused on Atlantic's provision

of ALS services, which are divided into three categories: ALS

Assessment, ALS-1 and ALS-2.           Different services are provided to

patients for each ALS category, ranging from a basic physical

examination and electrocardiogram readings to more complex medical

treatments.

       The amount billed to patients receiving ambulance services

depends on the category of the support rendered. For ALS services,

Atlantic charged the following: $1500 for an ALS Assessment, plus

a mileage fee; $1750 for ALS-1 services, plus a mileage fee; and

$2300   for     ALS-2    services,   plus    a    mileage    fee.     Appellants

challenged Atlantic's formulation of the billing rates for ALS

services.       They claimed that Atlantic's fees for ALS services

should be itemized, specifying the amount charged for each service,

rather than bundled.        Appellants alleged that Atlantic's uniform

flat    rates     were     excessive      and     disproportionate       to    the

reimbursement rates assessed by insurance providers for similar

services.

       In Cullum's case, he passed out at his gym and Atlantic was

called to provide ambulance services.              Other than blood pressure

monitoring, Cullum denied receiving any medical services from

                                        4                                 A-1622-16T2
Atlantic.      Cullum's bill from Atlantic was $1750, plus a mileage

fee    for   transporting       him   to   the   hospital.         Cullum's     health

insurance provider paid a portion of Atlantic's bill, and he was

responsible for payment of the outstanding balance of $1459.20.

       In    Hitti's    case,   she    fainted       in    her   home   and   Atlantic

performed an ALS Assessment.           Hitti declined transportation to the

hospital but was charged $14 for transport of one mile.                        Hitti's

bill was $1500, plus the mileage fee.                     Hitti's health insurance

provider declined to pay Atlantic's bill due to a purported billing

code error.

       Appellants sought class certification on behalf of themselves

and approximately 36,000 individuals who were allegedly overbilled

by Atlantic.3          Appellants claimed that their cause of action

satisfied the requirements for class certification.                     See R. 4:32-

1(a); see also Muise v. GPU, Inc., 371 N.J. Super. 13, 30 (App.

Div.    2004)    (the     requirements         are    numerosity,       commonality,

typicality and adequacy).             Appellants also argued that they met

the requirements of Rule 4:32-1(b)(3) by raising "questions of law



3
   In the six-year period, appellants contend there were
approximately 10,000 individuals who were charged a $14 mileage
fee despite not being transported to a hospital (the non-
transported individuals are identified as the "Hitti class") and
26,000 individuals who were transported to a hospital but were
charged an exorbitant bundled rate for ambulance services (these
individuals are identified as the "Cullum class").

                                           5                                   A-1622-16T2
or fact common to the members of the class [that] predominate over

any questions affecting only individual members, and that a class

action   is   superior   to   other   available    methods   for    fair      and

efficient adjudication of the controversy."           R. 4:32-1(b)(3); see

also Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 106-07 (2007).

     Appellants maintained their claims were common, typical and

adequate with respect to the claims of the proposed class members

because all were victims of Atlantic's unlawful billing practices

and unconscionable rates in violation of the CFA.4                 Appellants

contended that Atlantic had a duty to charge a reasonable fee for

services and breached that duty.            For the Hitti class, the issue

was Atlantic's $14 mileage fee for patients not transported to a

hospital.5    For the Cullum class, the issue was the reasonableness

of the fee charged by Atlantic for ALS-1 and ALS-2 services.

Appellants reasoned that the time, energy and cost to pursue

individual lawsuits against Atlantic would make it financially

unfeasible for aggrieved class members to pursue their claims in

the absence of class certification.



4
   Atlantic did    not   dispute      the    numerosity   prong    for     class
certification.

5
  During this litigation, Atlantic conceded that it was improper
to charge a $14 mileage fee for individuals who were not
transported to a hospital.

                                      6                                  A-1622-16T2
      Atlantic countered that appellants' claims were not typical

because proof of their claims would not prove the claims of the

proposed class members.       Atlantic highlighted the dissimilar aid

and assistance rendered to individuals who received ALS-1 services

and ALS-2 services, and noted that neither Cullum nor Hitti

received ALS-2 services.       Atlantic claimed the reasonableness of

the fees charged for the services required individual adjudication

on a patient-by-patient basis and, therefore, was not amenable to

class certification.        Further, Atlantic contended that neither

Cullum nor Hitti suffered damages under a breach of contract theory

or CFA violation claim because: (1) appellants denied receiving

any services from Atlantic, and (2) even if they conceded receipt

of services, appellants did not pay Atlantic's bill to establish

an ascertainable loss under the CFA.

      In deciding the motion, the judge found that appellants'

claims were not common, not typical and not in alignment with the

claims of proposed class members because appellants did not receive

ALS-2 services and did not pay for Atlantic's services.             The judge

ruled that appellants did not suffer an ascertainable loss under

the CFA because Cullum and Hitti failed to pay Atlantic's bill.

The   judge   expressly     rejected       appellants'   argument    that    an

excessive     bill   from   Atlantic       was   sufficient   to    prove    an

ascertainable loss.

                                       7                              A-1622-16T2
     On appeal, Cullum and Hitti argue the judge erred in denying

class certification based upon his determination that they were

unable to prove an ascertainable loss to sustain a CFA claim.           We

conclude that the judge's denial of class certification on that

basis was flawed because appellants were not required to have paid

Atlantic's bill to demonstrate an ascertainable loss.

          The certainty implicit in the concept of an
          "ascertainable"    loss   is    that    it  is
          quantifiable or measurable. Moreover, it need
          not yet have been experienced as an out-of-
          pocket loss to the plaintiff.     An "estimate
          of damages, calculated within a reasonable
          degree   of   certainty"   will    suffice  to
          demonstrate an ascertainable loss.

          [Thiedemann v. Mercedes-Benz USA, LLC, 183
          N.J. 234, 248-49 (2005) (quoting Cox v. Sears
          Roebuck & Co., 138 N.J. 2, 22-23 (1994)).]

     In the seminal CFA case, Cox v. Sears Roebuck & Company, the

Supreme Court held that non-payment did not preclude the plaintiff

from establishing an ascertainable loss.        Cox, supra, 138 N.J. at

22 ("[T]o demonstrate a loss, a victim must simply supply an

estimate of damages, calculated within a reasonable degree of

certainty.   The victim is not required actually to spend the money

for the repairs before becoming entitled to press a claim.").

     While   we   agree   with   denial   of   class   certification    on

appellants' CFA claim, we do so for reasons other than those

expressed by the motion judge.     We affirm or reverse judgments and


                                    8                            A-1622-16T2
orders, not reasons.     Isko v. Planning Bd. of Twp. of Livingston,

51 N.J. 162, 175 (1968); Walker v. Briarwood Condo Ass'n, 274 N.J.

Super. 422, 426 (App. Div. 1994).        A correct result, even if

grounded on an erroneous basis in fact or in law, will not be

overturned on appeal.    See GNOC, Corp. v. Dir., Div. of Taxation,

328 N.J. Super. 467, 474 (App. Div. 2000), aff'd, 167 N.J. 62

(2001).

     While we disagree with the motion judge's rationale, we agree

with Atlantic's alternative argument, that the CFA is inapplicable

to ambulance service providers under the "learned professional"

exception to the CFA.6

     The "learned professional" exception was first recognized by

the Supreme Court in Macedo v. Dello Russo, 178 N.J. 340 (2004).

In Macedo, the Court noted that the CFA had not changed in the

nearly forty years since its enactment.      Id. at 344.   The Court

analyzed the cases involving professional services during that

forty-year span, and concluded "our jurisprudence continues to

identify learned professionals as beyond the reach of the [CFA]

so long as they are operating in their professional capacities.

The Legislature is presumed to be aware of that judicial view."



6
  In light of this decision, we need not address the parties'
disputes concerning satisfaction of the requirements for class
certification on appellants' fraud claim.

                                   9                         A-1622-16T2
Id. at 345-46.    The Macedo Court held that advertisements by

learned professionals, specifically physicians:

          in respect of the rendering of professional
          services are insulated from the CFA but
          subject to comprehensive regulation by the
          relevant regulatory bodies and to any common-
          law remedies that otherwise may apply.     We
          consider ourselves bound by that Legislative
          acquiescence.   If we are incorrect in our
          assumption, we would expect the legislature
          to take action to amend the statute.

          [Id. at 346.]

     In the thirteen years since Macedo, the Legislature has not

amended the CFA to include learned professionals.         Thus, our

jurisprudence continues to exempt professionals from the CFA.    See

Manahawkin Convalescent v. O'Neill, 426 N.J. Super. 143, 155-56

(App. Div. 2012) (nursing homes insulated from CFA), aff'd, 217

N.J. 99 (2014);7 Plemmons v. Blue Chip Ins. Servs., Inc., 387 N.J.

Super. 551, 556 (App. Div. 2006) (insurance brokers, as semi-

professionals, insulated from CFA); Hampton Hosp. v. Bresan, 288

N.J. Super. 372, 383 (App. Div.) (hospitals insulated from CFA),


7
  The Supreme Court did not decide whether the nursing home's
conduct was exempt from the CFA under the "learned professional"
exception as the Court concluded the nursing home did not commit
an "unlawful practice" under the CFA.       In dicta, the Court
expressed "doubt" whether the "billing and collection function at
issue in [the Manahawkin Convalescent] case would qualify for the
learned professional exception." Manahawkin Convalescent, supra,
217 N.J. at 124.     However, the Manahawkin Convalescent case
addressed who was responsible for payment of the nursing home's
bill, not the reasonableness of the billing rates.

                               10                           A-1622-16T2
certif. denied, 144 N.J. 588 (1996); Vort v. Hollander, 257 N.J.

Super. 56, 62 (App. Div.) (attorneys insulated from CFA), certif.

denied, 130 N.J. 599 (1992).    But see Suarez v. E. Int'l Coll.,

428 N.J. Super. 10, 39 (App. Div. 2012) (educational and vocational

training program governed by the CFA because the program was not

overseen by any regulatory body and there were no regulations

governing the school that would present "a patent and sharp"

conflict with the CFA), certif. denied, 213 N.J. 57 (2013).

     In Neveroski v. Blair, 141 N.J. Super. 365 (App. Div. 1976),8

we held that real estate brokers were not subject to the CFA

because:

           A real estate broker is in a far different
           category from the purveyors of products or
           services or other activities. He is in a semi-
           professional status subject to testing,
           licensing, regulations and penalties through
           other legislative provisions.    Although not
           on the same plane as other professionals such
           as lawyers, physicians, dentists, accountants
           or engineers, the nature of his activity is
           recognized as something beyond the ordinary
           commercial seller of goods or services -- an
           activity beyond the pale of the act under
           consideration.

           Certainly no one would argue that a member of
           any of the learned professions is subject to
           the provisions of the Consumer Fraud Act

8
  In 1976, the Legislature amended the CFA to include real estate,
thereby abrogating the court's holding in Neveroski. See N.J.S.A.
56:8-2. The Neveroski decision remains instructive as it supports
the CFA's exclusion of learned professionals absent express
legislative authority.

                                11                          A-1622-16T2
            despite the fact that he renders "services"
            to the public.      And although the literal
            language   may   be    construed to   include
            professional services, it would be ludicrous
            to construe the legislation with that broad a
            sweep in view of the fact that the nature of
            the services does not fall into the category
            of consumerism.

            Similarly, in the absence of clear and
            explicit language in the statute, a broker who
            negotiates the sale of real estate and thereby
            renders "services" is nevertheless outside the
            scope of persons sought to be covered by the
            Act.

            [Id. at 379-80 (citations omitted).]

       We review the relevant statutory and regulatory provisions

to    determine    whether     ambulance    service   providers      are   learned

professionals exempt from consumer fraud claims.               By statute, the

Department of Health (Department) is charged with overseeing the

provision of health care services to the public, and ensuring that

the services provided are "at a reasonable cost."              N.J.S.A. 26:2H-

1.    The definition of health care services specifically includes

ambulance    services.          N.J.S.A.     26:2H-2(b).       The    Department

regulates ambulance service providers in accordance with N.J.S.A.

26:2H-1 to -26 and N.J.S.A. 26:2K-7 to -20.

       Pursuant     to   its     statutory     authority,      the    Department

promulgated regulations governing "Mobility Assistance Vehicle and

Basic Life Support Ambulance Services," N.J.A.C. 8:40-1.1 to -7.4,

and    "Advanced    Life     Support   Services;      Mobile   Intensive       Care

                                       12                                  A-1622-16T2
Programs,      Specialty       Care    Transport       Services    and     Air   Medical

Services," N.J.A.C. 8:41-1.1 to -12.5.                  These regulations "define

the operational requirements" of non-volunteer mobility assistance

vehicles, basic life support ambulance services, mobile intensive

care programs and specialty care transport services in the State.

N.J.A.C.       8:40-1.2;       N.J.A.C.         8:41-1.2.         The     Department's

regulations      establish           stringent       licensure    requirements         for

ambulance service providers.              N.J.A.C. 8:40-2.1 to -2.3; N.J.A.C.

8:41-2.1 to -2.3.           Additionally, the Department has the right to

take    enforcement         action    against     ambulance      service    providers.

N.J.S.A. 26:2H-13; N.J.S.A. 26:2H-14; N.J.A.C. 8:40-7.2; N.J.A.C.

8:41-12.3.

       Whether labeled "professionals" or "semi-professionals," we

find that ambulance service providers are excluded from liability

under    the    CFA    for     services        rendered     consistent     with     their

professional license because they are regulated by the Department.

The undisputed goal of the CFA is to protect consumers.                          Hampton

Hosp.,   supra,       288    N.J.     Super.    at    378   (citing     Martin    v.   Am.

Appliance, 174 N.J. Super. 382, 384 (App. Div. 1980)).                      In Hampton

Hospital, we noted that because hospitals are regulated by the

Department, there was "no purpose to a requirement that hospital

services be within the purview of the Consumer Fraud Act when

those same services fall within the purview of the Department of

                                           13                                     A-1622-16T2
Health."     Id. at 383.       Here, the Department adopted extensive

regulations governing ambulance services, and is authorized to

take measures against ambulance service providers for violation

of its regulations, including revocation of licensure.         N.J.S.A.

26:2H-13; N.J.S.A. 26:2H-14; N.J.A.C. 8:40-7.2; N.J.A.C. 8:41-

12.3.

     Based upon the Department's rigorous regulation of ambulance

services, the learned professional exception to the CFA precludes

appellants' consumer fraud claim.        To hold otherwise would present

a   situation     "with    a     real    possibility   of   conflicting

determinations, rulings and regulations affecting the identical

subject matter."    Daaleman v. Elizabethtown Gas Co., 77 N.J. 267,

272 (1978).     Since we determine that ambulance service providers

are excepted from the CFA, denial of appellants' motion for class

certification on the consumer fraud claim was the correct result.

     Our determination that the CFA is inapplicable to Atlantic

does not completely dispose of this matter. Appellants also sought

class certification on their breach of contract claim against

Atlantic.     There are two distinct breach of contract claims in

this case.      One claim on behalf of the Cullum class is that

Atlantic charged unreasonable rates for ambulance services. 9         And


9
  In opposition to class certification on this breach of contract
claim, Atlantic argued it is necessary to bundle rates for

                                    14                           A-1622-16T2
the other claim on behalf of the Hitti class is that Atlantic

improperly charged a $14 mileage fee.

     With respect to the breach of contract claim on behalf of the

Cullum class, we determine that denial of class certification was

proper, but for reasons other than those articulated by the motion

judge.

     The health care regulations and statutes enacted by the

State's Legislative and Executive branches establish that adequate

and affordable health care services are of utmost importance.     In

passing the Health Care Facilities Planning Act, N.J.S.A. 26:2H-1

to -26 (Act), the Legislature proclaimed a strong public policy

to establish, promote and ensure adequate health care services in

this State.   The Act explicitly declares that it is "the public

policy of this State that . . . related health care services of

the highest quality, of demonstrated need, efficiently provided

and properly utilized at a reasonable cost are of vital concern

to the public health."   N.J.S.A. 26:2H-1.




ambulance services, to cover the cost of providing trained and
licensed professionals, in fully equipped specialty vehicles, to
respond to medical emergencies.    The uniform rates charged by
Atlantic for ambulance services also contemplate charity care
subsidies and other financial considerations required to render
ambulance services to patients who lack health care coverage or
cannot afford health care services. See N.J.A.C. 8:33-4.10.


                               15                          A-1622-16T2
     The Act further requires the Department to establish a State

Health Planning Board (SHPB).          N.J.S.A. 26:2H-5.7.    The SHPB

reviews    applications   for    certificates   of   need    and     makes

recommendations to the Department's Commissioner regarding the

issuance of those certificates.10       N.J.S.A. 26:2H-5.8(b).       Under

the Act, "no new health care service shall be instituted . . .

except on application for and receipt of a certificate of need

. . . ."   N.J.S.A. 26:2H-7.11   To obtain a certificate of need, the

Act provides:

           No certificate of need shall be issued unless
           the action proposed in the application for
           such certificate is necessary to provide
           required health care in the area to be served,
           can   be    economically   accomplished    and
           maintained, will not have an adverse economic
           or financial impact on the delivery of health
           care services in the region or Statewide, and
           will contribute to the orderly development of
           adequate and effective health care services.

           [N.J.S.A. 26:2H-8.]




10
  "'Certificate of need' means the formal written approval of the
New Jersey Department of Health and Human Services to construct
or expand a health care facility or to institute a new health care
service, in accordance with the requirements set forth at N.J.A.C.
8:33." N.J.A.C. 8:41-1.3.
11
   As used in this section of the Act, the term "health care
service" includes "any service which is the subject of a health
planning regulation adopted by the Department . . . ." N.J.S.A.
26:2H-7.

                                  16                               A-1622-16T2
     The Department issued a certificate of need to Atlantic to

provide ambulance services.         Prior to issuing a certificate of

need, the Department and SHPB were required to consider whether

the Atlantic's services could "be financially accomplished and

licensed in accordance with applicable licensure regulations,"

would "not have an adverse impact on access to health care services

in the region or State-wide," and would "contribute to the orderly

development   of   adequate   and   effective   health   care   services."

N.J.A.C. 8:33-4.9. If Atlantic did not meet the statutory and

regulatory requirements for issuance of a certificate of need, the

Department would have denied the application.

     From our review of the statutes and regulations governing

health care in this State, we discern an unequivocal legislative

policy to ensure adequate and effective health care services for

all residents.     The regulations governing certificates of need

take into consideration many factors including, specifically,

financial impacts and concerns.          N.J.A.C. 8:33-4.9 and -4.10.

Applicants seeking a certificate of need for health care services

are required to provide services to persons who are financially

"unable to obtain care."      N.J.A.C. 8:33-4.10.12


12
   Atlantic accepts discounted payment for ambulance services
depending upon the situation. For example, Atlantic reduces its
fee by as much as forty percent for services provided to uninsured
patients.    Atlantic also has arrangements with third-party

                                    17                             A-1622-16T2
     Keeping in mind New Jersey's strong policies governing health

care services, we consider the breach of contract claim on behalf

of the Cullum class.    Health care costs are a significant issue

in the United States.   Providing affordable health care services

is a policy issue to be addressed by the Legislature and the

Executive Branch agencies to which it has delegated the authority

to carry out its policies.   See DiCarlo v. St. Mary's Hosp., 530

F.3d 255, 259 (3d Cir. 2008).13

     We find persuasive the decision of the Third Circuit Court

of Appeals, which affirmed a trial court decision dismissing

billing claims against a hospital:

          In the District Court, DiCarlo's primary
          argument was that the practice of charging
          uninsured patients significantly higher rates
          than insured patients and patients covered
          under Medicare, Medicaid, or the New Jersey
          Charity Care Program, for the same services
          and supplies, is wrongful and discriminatory.
          The District Court granted the defendants'
          motion for judgment on the pleadings and
          dismissed DiCarlo's complaint with prejudice.

insurance companies to accept less than the billed amount for its
ambulance services.
13
   Appellants contend that Atlantic is precluded from arguing
courts cannot determine reasonable rates for health care services
because no cross-appeal was filed. We disagree.         Rule 2:3-4
requires the filing of a cross-appeal where "respondent seeks to
expand the substantive relief granted in the order, and not just
provide further support for sustaining the order."       Pressler &
Verniero, Current N.J. Court Rules, comment 2 on R. 2:3-4 (2017).
See State v. Eldakroury, 439 N.J. Super. 304, 307 n. 2 (App. Div.),
certif. denied, 222 N.J. 16 (2015).

                                  18                        A-1622-16T2
          The District Court discussed the policy
          concerns about the rising cost of healthcare
          at length and found that the courts are ill-
          equipped to determine what reasonable hospital
          costs are, or to make a policy determination
          on behalf of the legislative branch.

          [DiCarlo v. St. Mary's Hosp., supra, 530 F.3d
          at 259.]

     Thus, we agree that denial of class certification for the

breach of contract claim on behalf of the Cullum class, challenging

the reasonableness of fees charged by Atlantic, was proper.

     We next review denial of class certification for the breach

of contract claim on behalf of the Hitti class.             Individuals

requiring ambulance services do not "contract" with Atlantic.          Nor

can they negotiate with Atlantic regarding its services.               The

relationship between Atlantic and its patients is based upon

implied contract or quasi-contract.        See Wanaque Bor. Sewerage

Auth. v. Twp. of West Milford, 144 N.J. 564, 574 (1996) (contracts

implied-in-fact   for   services   are   inferred   from   the   parties'

conduct or from the surrounding circumstances).

     Turning to the quasi-contract claim, patients not brought to

a hospital, identified as the Hitti class, were charged for one

mile of travel.     Atlantic now admits that patients in the Hitti

class were not transported to a hospital and, therefore, the $14

fee was improper.    However, Atlantic did not refund or credit the

$14 amount to those individuals.         Consideration of the refund

                                   19                             A-1622-16T2
issue for the Hitti class would not violate the policy concerns

associated with the Cullum class because it is limited to a charge

Atlantic    admits   was   billed   in     error   and   does   not   implicate

Atlantic's rate-setting decisions for ambulance services.


     Because the judge did not consider whether the Hitti class

could pursue class certification to recoup Atlantic's improperly

charged $14 mileage fee under a breach of quasi-contract theory,

we remand that issue to the trial court.                    The judge should

determine    whether   the   breach   of    quasi-contract      claim   against

Atlantic, limited to recovery of the $14 mileage fee, is suitable

for class certification.

     In sum, we affirm denial of class certification on appellants'

Consumer    Fraud    Act   claim.     We   also    affirm   denial    of     class

certification on the breach of contract claim as to the Cullum

class.     We remand the matter to the trial court to review class

certification on the breach of quasi-contract claim as to the

Hitti class.


     Affirmed in part and remanded in part.                 We do not retain

jurisdiction.




                                      20                                   A-1622-16T2
