Opinion
DOCKET NO. A-5134-13T4
04-06-2016
HELEN NAGY-MILLER, Plaintiff-Appellant, v. BRANDON M. PARKIN, Defendant-Respondent, and LINDA S. PARKIN, Defendant.
Helmer, Conley & Kasselman, P.A., attorneys for appellant (Michael D. Miller, of counsel and on the brief). Law Office of Robert Raskas, attorneys for respondent (Kimberly A. Hoehing, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4183-12. Helmer, Conley & Kasselman, P.A., attorneys for appellant (Michael D. Miller, of counsel and on the brief). Law Office of Robert Raskas, attorneys for respondent (Kimberly A. Hoehing, on the brief). The opinion of the court was delivered by SUMNERS, JR., J.A.D.
Following a damages-only expedited trial in this auto negligence action, the jury rendered a verdict in favor of defendant Brandon M. Parkin. Plaintiff Helen Nagy-Miller appeals from the order denying her motion for a new trial. For the following reasons, we affirm.
I
We derive the following facts from the record below. On October 28, 2010, plaintiff's automobile was rear-ended by defendant's automobile while she was stopped at a red traffic light. Plaintiff's daughters, ages seven and ten, were in the backseat of the vehicle when the incident occurred. No ambulance was called to the scene, and the police report also reflected that the accident resulted in no injuries. However, later that evening, plaintiff went to the hospital complaining of neck and back pain. A CT scan of plaintiff's head and cervical spine showed no signs of trauma. Plaintiff was given some pain medication, and was directed to follow up with her general practitioner.
On November 4, 2010, plaintiff went to see her family doctor, who ordered an MRI of plaintiff's lumbar and cervical spine and directed her to be examined by an orthopedist. On November 17, 2010, plaintiff visited an orthopedist, Dr. Rahul Shah. Dr. Shah recommended that plaintiff seek physical therapy and consultation with a pain management specialist. On May 4, 2011, plaintiff sought physical therapy treatment, and plaintiff testified to receiving two or three treatments.
Almost a year after the accident, plaintiff sued defendant alleging she sustained permanent injuries in accord with the verbal threshold requirements of N.J.S.A. 39:6A-8(a). At an expedited trial, defendant stipulated as to liability, but contested the existence of permanent injuries.
Apparently in order to pre-emptively address the fact that plaintiff had been treated in physical therapy only a few times, plaintiff testified on direct examination that she would have liked to have gone to more sessions, but that "economic reasons prevented her from doing so." To establish that plaintiff was not permanently injured, the defense emphasized that plaintiff had attended only a minimal number of physical therapy sessions, and also submitted an expert report opining that plaintiff's herniations were due to age, not the accident.
After closing arguments, the trial judge gave the following charge on medical expenses damages:
Even though she had medical treatment, there was no claim for any medical bills. That's because those things are covered separately under the Automobile Reparation Reform Act, and are not part of this case.Plaintiff's attorney advised the judge that he had no objections to the charges as given.
Each party submitted to the jury an expedited trial package containing expert reports and documents related to plaintiff's treatment and alleged injuries. Plaintiff's package included two letters written by Dr. Shah in appeal of her insurance company's decision limiting her physical therapy treatments. While the addressee information in both letters was redacted, it is clear from the text that these letters requested additional treatment from an insurance provider.
After deliberating for approximately an hour, the jury returned a verdict of no cause, finding plaintiff failed to prove by objective credible evidence that she sustained a permanent injury proximately caused by the accident. Plaintiff subsequently filed a motion for a new trial. She contended that the trial judge's jury instruction on damages was plain error producing an unjust result, because by mentioning the Automobile Reparation Reform Act (the Act), he suggested that there was insurance coverage available to provide plaintiff further physical therapy.
The trial judge disagreed; explaining that he mentioned the Act in an attempt to head off the jury's inquiries about the amount of plaintiff's medical bills by explaining that such bills were covered under the Act, and should not be considered during its deliberations. The judge also noted that he made no mention of "insurance" in his jury instruction, contrary to what plaintiff asserted in her motion brief. Reasoning that a jury would was not influenced by his reference to the Act, the trial judge denied the motion for a new trial. This appeal followed.
II
The issue before us is whether the trial judge's charge that the jury did not have to consider medical bills because they were covered by the Act tainted the verdict, constituting grounds for a new trial. We conclude that the judge committed no error by denying plaintiff's request for a new trial.
We begin by clarifying our standard of review. A motion for a new trial "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; See also R. 4:49-1(a). We must provide "'due deference' to the trial court's 'feel of the case,' with regard to the assessment of intangibles, such as witness credibility." Jastram v. Kruse, 197 N.J. 216, 230 (2008) (quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)).
Our analysis then proceeds with the premise that, since plaintiff did not object to the court's jury instruction, we analyze the issue employing the plain error standard. See R. 2:10-2. The question is whether the error could have possibly led the jury "'to an unjust verdict.'" State v. G.V., 162 N.J. 252, 262 (2000) (quoting State v. Macon, 57 N.J. 325, 335 (1971)). In civil cases, relief under the plain error rule "is discretionary and should be sparingly employed." Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 129 (1999) (citation omitted); Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 487 n.14, (App. Div.), certif. denied, 212 N.J. 198 (2012).
Normally, the existence of insurance is not brought to the jury's attention due to the need to avoid prejudice against a defendant where possession of insurance coverage "might distract jurors from a fair evaluation of the evidence[,]" and may "motivate an award of damages based on a jury's perception of an insurer as having deep pockets." Bardis v. First Trenton Ins. Co., 199 N.J. 265, 275 (2009) (citation omitted). This is echoed by our Rules of Evidence. Under N.J.R.E. 411, "[e]vidence that a person was or was not insured against liability is not admissible on the issue of that person's negligence or other wrongful conduct."
However, here we are dealing with plaintiff's medical treatment and expenses regulated by the Act, our state's no-fault automobile insurance law which requires each automobile owner to purchase minimal levels of automobile insurance coverage. N.J.S.A. 39:6A-1 to -35. Under this legislative scheme, medical bills paid by the insurance provider are not recoverable as damages in a civil suit arising from an automobile accident. N.J.S.A. 39:6A-12; Roig v. Kelsey, 135 N.J. 500, 512-13 (1994). Thus, the Model Civil Jury Charge 8.20, Medical Expenses (Auto), reads: "The plaintiff's claim in this case does not include any claims for medical expenses. Therefore, in determining the reasonable amount of damages due to plaintiff, you shall not speculate about the medical expenses plaintiff may have had."
Clearly, the judge did not repeat verbatim the model charge; the model charge makes no mention of the Act. As noted, the judge's charge stated that, based on the Act, the jury need not be concerned about plaintiff's medical expenses in considering her damages. While it would have been preferable that the judge not refer to the Act, we do not conclude that his slight deviation from the model charge constitutes error.
Having said that, we also conclude that the comment was harmless under the circumstances. We have previously noted that the risk of prejudice deriving "from references to insurance has been diminished with the advent of compulsory automobile liability insurance." Krohn v. N.J. Full Ins. Underwriters Ass'n, 316 N.J. Super. 477, 482 (App. Div. 1998), cert. denied, 158 N.J. 74 (1999). Indeed, the ubiquitous nature of insurance has been recognized by our courts:
In these days the juror who is neither automobile owner or operator is a rarity. All who obtain registration of their vehicles know that they must . . . carry liability insurance . . . . And it seems likely that if they do think of it, jurors assume in every automobile case that some financial responsibility exists over and above defendant's ability to satisfy a judgment.Thus, "'[s]o long as the insurance is not featured or made the basis at the trial for an appeal to increase or decrease the damages, the information would seem to be without prejudice.'" Krohn, supra, 316 N.J. Super. at 482 (quoting Runnacles, supra, 59 N.J. Super. at 368).
[Runnacles v. Doddrell, 59 N.J. Super. 363, 367-68, (App. Div. 1960).]
Plaintiff contends that the trial court implied that her medical bills had already been paid, and thus, the jury was forced to conclude that plaintiff was either less than truthful about her willingness to undertake physical therapy, or that she was lying about the severity of her injuries. Plaintiff also notes that her testimony regarding her desire to attend more physical therapy sessions was a strategic attempt to explain that she had expended the maximum amount of physical therapy approved by the insurer without actually mentioning insurance. Plaintiff argues that she did not elaborate on the "economic reasons" for not going to more than a few physical therapy sessions during her testimony because she was barred by N.J.R.E. 411 and N.J.S.A. 39:6A-12; that under those rules, information regarding the existence or lack of insurance is inadmissible at trial in automobile-related negligence claims. These arguments are without merit.
Based upon the record, there is no indication that the jurors knew what "the Act" was. The judge did not explain it nor mention "insurance." Thus, plaintiff's argument that the judge's mention of the Act influenced the jury's verdict is pure conjecture.
Moreover, contrary to plaintiff's argument, she presented evidence to the jury that she sought additional physical therapy. In her expedited jury package, she included Dr. Shah's letters seeking authorization for further physical therapy treatments following her insurance company's decision to cease treatment.
Accordingly, we are convinced that the denial of plaintiff's motion for a new trial was appropriate.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
N.J.S.A. 39:6A-1 to -35.