In a recent unpublished Appellate Division matter, Dever v. NJM Insurance Company, the Court heard appeals from both the Plaintiff and Defendant, following a jury verdict rendered in an automobile negligence action. The jury found the Plaintiff, John Devers, a police officer who was involved an accident while on duty, had not suffered from a permanent injury as a result of a motor vehicle accident, yet awarded lost wages in the amount of $275,000.00. Both sides filed post judgement motions challenging the verdict.
Plaintiff was on duty as a police officer when his vehicle was struck by another vehicle that had ran a red light. As a result of the impact, the Plaintiff sustained injury to his neck, back, and right hand. Eventually, Plaintiff settled with the other driver’s insurance carrier, which tendered its policy of $25,000.00. Plaintiff then filed an under-insured motorist claim under his own policy with New Jersey Manufacturers. At trial, liability was stipulated with the agreement that damages would be capped within the policy’s $500,000.00 limit and reduced by the tortfeasor’s policy payment of $25,000.00. Trial testimony then focused on the Plaintiff’s injuries and damages.
At trial, Plaintiff, a retired Marine, detailed his employment duties working as a police officer, as well as in the department’s detective bureau, SWAT team, and vice squad. Following the accident, Plaintiff underwent a cervical MRI which revealed an irregularity in his spine. He did not undergo any surgery. In fact, at trial, the Plaintiff admitted his neck pain had resolved satisfactorily. He had continued complaints relating to his back, right hand, and depression. Plaintiff claimed that the use of his right hand was compromised following the accident, causing him to drop things. Because he was right handed, he was unable to use his weapon in that hand. Consequently, he was determined to be disabled and was put on permanent disability. As a result, Plaintiff claimed that he emotionally withdrew from everything after the accident. Eventually, he emerged from that depression and began to reconnect with people.
At trial, Plaintiff’s and Defendant’s psychiatric experts agreed that the Plaintiff suffered from depression following the accident. In addition, Plaintiff and Defendant both presented vocational experts at trial who disagreed with regard to Plaintiff’s lost wage claim. Plaintiff’s expert computed Plaintiff’s future lost wage claim over a fifteen year period, covering the year of the accident through the year of his projected retirement, which when reduced to present value was $634,559.00, or $42,000.00 per year. The Defense expert opined that Plaintiff was capable of performing a number of jobs despite his injuries, which would pay approximately $35,000.00 per year and when added to his disability pension would compensate him for his lost wages.
Plaintiff’s injury occurred during the course of his employment and he filed a workers’ compensation claim. The workers’ compensation carrier paid all of the Plaintiff’s medical bills and placed a lien on the Plaintiff’s recovery from the tortfeasor. Following the verdict, the Plaintiff argued that the defendant should pay the Workers’ Compensation lien since the Plaintiff should not be forced to pay for his own medical expenses. The trial court agreed. The Defendant urged a reversal of that decision, arguing that the Plaintiff was statutorily precluded from recovering medical expenses from the Defendant which stands in the shoes of the tortfeasor, making the order for reimbursement erroneous.
Generally, there are three sources of recovery, Personal Injury Protection (PIP), Workers’ Compensation, and the tortfeasor. PIP is governed by certain provisions of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A 1.1-35. AICRA allows recovery for uncompensated economic losses from a tortfeasor. Economic loss includes uncompensated loss of income or property, or other uncompensated expenses, which also includes medical expenses. D’Aloia v. Georges, 372 N.J. Super. 246, 249 (App. Div. 2004).
In this case, although Plaintiff’s injuries were compensable under his own PIP policy, he did not seek these benefits since he was injured during the course of employment, triggering the Workers Compensation Act, N.J.S.A 34:
1-1-127. Under the Workers Compensation Act, when an employee suffers a work related injury in an automobile accident, Workers’ Compensation is the primary source of satisfaction of Plaintiff’s medical bills under the collateral source rule. N.J.S.A 39:6A-6. The Statute prevents the employee from “double recovery,” requiring the employee to refund paid Workers’ Compensation benefits once recovery is obtained from the tortfeasor. Fraizier v. NJM, 142 N.J. 590, 597 (1995). The same rule applies to UIM matters, once recovery is obtained. Midland Insurance Co. v. Colatrella, 102 N.J. 612 (1986).
The Appellate Division found that the medical expenses related to the Plaintiff’s work-related accident are not payable from the UIM carrier because the Plaintiff’s recovery against his own UIM carrier represents the contractual substitute for a tort action against an uninsured motorist. Rather, the Plaintiff’s medical expenses should be paid by the Workers’ Compensation carrier instead of the PIP carrier. The Workers’ Compensation lien attaches only to permitted tortfeasor’s recoveries and cannot include medical expenses from a New Jersey no-fault insured. Patterson v. Adventure Trails, 364 N.J. Super. 444 (Law Div. 2003). The Appellate Division found that the Plaintiff’s medical expenses were the responsibility of the Workers’ Compensation carrier and not reimbursable by the Defendant. The court reversed the lower court’s decision, vacating the Order requiring Defendant, NJM to pay the Plaintiff’s medical bills.
The Appellate Division acknowledged that the Plaintiff’s claim for future lost wages must be supported by “a reasonable probability” of such a loss flowing from the past harm, and that there is “sufficient factual matter upon which the quantum of diminishment can be reasonably determined.” Coll v. Sherry, 29 N.J. 166, 176 (1959). The mere possibility of lost earning capacity is not enough. Lesniak v. County of Bergen, 117 N.J. 12, 24 (1989).
It is important to note that Plaintiff’s case presented claims of permanent injury. Since he elected the limitation on lawsuit option on his automobile insurance policy, he was precluded from recovery of non-economic loss absent proof of bodily injury that resulted in a permanent injury. The limitation does not affect claims for economic loss such as lost wages. N.J.S.A. 39:6A-8(a). However, if a plaintiff fails to prove a permanent injury, there must be a limit upon any award made for future economic loss. Haywood v. Harris, 414 N.J. Super. 204, 214 (App. Div.), certif. denied, 204, N.J. 38 (2010). The Appellate Division found the lower court’s jury instructions and verdict sheet properly reflected the jury’s responsibility to limit lost wages of recuperation and recovery.
The Devers case is significant as it found a Plaintiff can still recover for economic loss even when a permanent injury is not proven at trial. The limitation of that award by the jury was reasonable and proper.