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McDuffy v. Lumbermen's Mutual Casualty Company12/17/2001
Superior Court and that is the subject of the instant appeal.
(7) There was no error or abuse of discretion on the part of the Superior Court in dismissing the McDuffys' second complaint. To the extent the second complaint sought to appeal the October 23, 1998 decision of the Automobile Arbitration Panel, the Superior Court correctly dismissed it as untimely. To the extent the second complaint reiterated claims already asserted in the first complaint, the Superior Court correctly dismissed it as duplicative. While the Superior Court also found that the filing of the second complaint amounted to an "impermissible 'end run'" around the Superior Court's previous denial of the McDuffys' motion to amend their first complaint, the record reflects that the McDuffys may have filed their second complaint based on a misinterpretation of the Superior Court's ruling on their motion to amend.
(8) Because the Superior Court in C.A. No. 98C-11-213 did not squarely address the issues the McDuffys raised in their motion to amend, we conclude in the interest of justice that the Superior Court should be permitted to rule on those issues should the McDuffys decide to re-assert them. In addition, it will also be for the Superior Court to decide in the first instance whether the first complaint constituted an appeal from the decision of the Automobile Arbitration Panel and the extent to which any PIP claims the McDuffys may attempt to assert in the first complaint are barred under the doctrine of res judicata, should such issues be raised.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED in C.A. No. 99C-10-139 and REMANDED in C.A. No. 98C-11-213 for further proceedings in accordance with this Order.
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