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Amaru v. Stratton

Decided: October 21, 1985.

EMANUELE AMARU AND GIOVANNA AMARU, PLAINTIFFS-RESPONDENTS,
v.
JAMES B. STRATTON AND CATHERINE M. STRATTON, DEFENDANTS-RESPONDENTS, AND PATHMARK OF WAYNE, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Passaic County.

Michels and Deighan. The opinion of the Court was delivered by Michels, P.J.A.D.

Michels

Defendant Supermarket General Corporation, t/a Pathmark of Wayne (Pathmark) appeals from a judgment of the Law Division entered on a molded jury verdict (1) awarding plaintiffs Emanuele Amaru and Giovanna Amaru damages totalling $170,549.79 and (2) dismissing its cross-claim for contribution against defendants James B. Stratton and Catherine M. Stratton and from a denial of its motions for a judgment notwithstanding the verdict or, alternatively, for a new trial or for a remittitur.

Plaintiff Emanuele Amaru instituted this action to recover damages for personal injuries sustained as a result of an automobile accident involving defendants Strattons on March 23, 1981, and as a result of a slip and fall while shopping at Pathmark on December 15, 1981. Plaintiff's wife sued per

quod. At the conclusion of the lengthy trial the trial court molded the jury verdict of "no cause for action" in favor of defendants Strattons and assessed costs of suit in their favor against plaintiffs. Plaintiff was awarded damages against Pathmark in the sum of $125,000.00 plus prejudgment interest of $17,124.86 for a total award of $142,124.86. Plaintiff's wife was awarded damages against Pathmark in the sum of $25,000 plus prejudgment interest of $3,424.93 for a total of $28,424.93. Pathmark's motions for a judgment notwithstanding the verdict or, alternatively, a new trial or a remittitur were denied. This appeal followed.

We have carefully considered the record in light of the arguments presented and are satisfied that the evidence in support of the jury verdict is not insufficient, that the determination of the trial court on the motion for a new trial does not constitute a manifest denial of justice and that all issues of law raised are clearly without merit. R. 2:11-3(e)(1)(B), (C) and (E). However, further comment may be useful with respect to some of Pathmark's contentions.

I.

First, Pathmark contends that the trial court abused its discretion by ruling that Dr. Cimillo's bills for treatment of plaintiff's psychological condition after the Pathmark fall on December 15, 1981, were "not collectible" under the New Jersey Automobile Reparation Reform Act (No Fault Act), N.J.S.A. 39:6A-1 et seq. The trial court's ruling rendered the bills admissible before the jury pursuant to N.J.S.A. 39:6A-12 for the purpose of proving damages. Pathmark also urges that the trial court erred by denying its motion for a pre-trial hearing on the admissibility of the bills and reserving its decision on their admissibility until after hearing "the testimony of the witnesses in the court of the trial." In our view, the rulings of the trial court were entirely proper and were incapable

of causing "a miscarriage of justice under the law." See R. 2:10-1; Dolson v. Anastasia, 55 N.J. 2, 7 (1969).

Pursuant to N.J.S.A. 39:6A-4 of New Jersey's No Fault Act, every automobile liability insurance policy insuring an automobile against loss arising from liability for bodily injuries sustained by any person in the course of using or operating an automobile must provide personal injury protection (PIP) coverage, regardless of fault, to persons falling within certain specifically designated categories. These persons include "the named insured and members of his family residing in his household who sustained bodily injury as a result of an accident while occupying . . . or using the automobile of the named insured." N.J.S.A. 39:6A-4. PIP coverage includes "[p]ayment of all reasonable medical expenses incurred as a result of personal injury sustained in an automobile accident." N.J.S.A. 39:6A-4a.

The Legislature intended a person's no fault automobile insurance to be an injured person's exclusive remedy for medical expense claims arising out of an automobile accident. Smelkinson v. Ethel & Mac Corp., 178 N.J. Super. 465, 469 (App.Div.1981). See N.J.S.A. 39:6A-12. To fulfill this purpose and to prevent injured persons from being "unduly enriched by double recovery of [their medical] expenses," see Cirelli v. The Ohio Casualty Insurance Co., 72 N.J. 380, 387 (1977); see also Aetna Ins. Co. v. Gilchrist Brothers, Inc., 85 N.J. 550, 562 (1981), the Legislature provided in N.J.S.A. 39:6A-12 that evidence of PIP benefits collectible or paid to an injured person is "inadmissible in a civil action for recovery of damages for bodily injury by such injured person." N.J.S.A. 39:6A-12, in pertinent part, states:

Except as may be required in an action brought pursuant to section 20 of this 1983 amendatory and supplementary act, evidence of the amounts collectible or paid pursuant to sections 4 and 10 of this act to an injured person, including the amounts of any deductibles or exclusions elected by the named insured pursuant to section 13 of this 1983 amendatory and supplementary act, otherwise compensated is inadmissible in a civil action for recovery of damages for bodily injury by such injured person.

The determination as to whether certain items, such as medical bills, constitute "evidence of the amounts collectible or paid" under the PIP provisions of the No Fault Act constitutes, in the first instance, a question of law for the trial judge. See Eivd.R. 8(2); Tullis v. Teial, 182 N.J. Super. 553, 558 (App.Div.1982); Clifford v. Opdyke, 156 N.J. Super. 208, 213 (App.Div.1978); Fitzgerald v. Wright, 155 N.J. Super. 494, 503 (App.Div.1978). The No Fault Act apparently offers no definition of the term "collectible," but in Tullis v. Teial, 182 N.J. Super. 553 (App.Div.1982), the Appellate Division interpreted "collectible" to mean "legally due." See id. at 558. Under the No Fault Act, PIP benefits "legally due" include "all reasonable medical expenses incurred as a result of personal injury sustained in an automobile accident." N.J.S.A. 39:6A-4a.

There can be no doubt that the medical bills for Dr. Cimillo's treatment of plaintiff between the automobile accident and the Pathmark fall on December 15, 1981, were "collectible" under the No Fault Act and accordingly were inadmissible in plaintiff's suit against defendant Stratton, the driver of the car. Moreover, the trial court's ruling that Dr. Cimillo's bills for his treatment of plaintiff following the Pathmark fall were "not collectible" under the No Fault Act has ample support in the record. The trial court essentially ruled that the treatment rendered to plaintiff by Dr. Cimillo following the fall did not constitute treatment for "personal injury sustained in [the] automobile accident." N.J.S.A. 39:6A-4a (emphasis supplied). Rather, as Dr. Cimillo himself testified, "the bills which [he] rendered since December 15th of 1981 [were] causally related to the trauma suffered by plaintiff on December 15, 1981."

Pathmark also argues that the trial court erred by denying its motion for a pre-trial hearing, pursuant to Evid.R. 8, on the admissibility of Dr. Cimillo's bills. Evid.R. 8 states that "[w]hen . . . the admissibility of evidence . . . is in issue, that issue is to be determined by the judge. . . . The judge may hear

and determine such matters out of the presence or hearing of the jury."

The trial court's denial of Pathmark's motion constituted a proper exercise of discretion. Pathmark did not make its motion for a Rule 8 hearing until after jury selection, and the trial judge reasonably believed that if he granted Pathmark's motion the case would be "attenuated to probably twice what it would be otherwise." Instead, the trial court reserved judgment until after "hear[ing] the testimony of the witnesses in the course of the trial." Pathmark makes no demonstration of prejudice arising from this decision. The trial court did not admit Dr. Cimillo's bills into evidence until the end of trial, following its consideration of the witnesses' testimony and counsel's arguments. Moreover, counsel for all three defendants had substantial opportunity to conduct a thorough cross-examination of Dr. Cimillo regarding his billing methods and errors he made in his expert reports prepared for plaintiff's insurance company.

II.

Pathmark next asserts a variety of trial errors concerning expert testimony elicited at trial from Doctors Doerr, Cimillo and Sozzi and Mr. Sirota, primarily on the ground that portions of admitted expert testimony exceeded the scope of the experts' reports disclosed during discovery.

New Jersey's rules of discovery provide that a party may utilize interrogatories to

disclose the names and addresses of each person whom the other party expects to call at trial as an expert witness, including a treating physician who is expected to testify and of an expert who has conducted an examination pursuant to R. 4:19 whether or not he is expected to testify, to state the subject matter on which the expert is expected to testify, to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, and to furnish, as provided by R. 4:17-4(a), a copy of the report of an expert witness, including a treating physician, and, whether or not he is expected to testify, of an expert who has conducted an examination pursuant to R. 4:19. [ R. 4:10-2(d)(1)].

If an interrogatory requests the answering party to attach a copy of an expert's or treating physician's report, the answering party has a continuing obligation to provide all requested material, including all reports already prepared by the expert or treating physician, a summary of any oral reports, and the contents of any report subsequently received, whether written or oral. See R. 4:17-4(a) and (e); Clark v. Fog Contracting Co., 125 N.J. Super. 159, 161-162 (App.Div.1973), certif. den., 64 N.J. 319 (1973). Cf. R. 4:10-2. A trial court may exclude the testimony of an expert or treating physician whose report is not furnished to the opposing party in accordance with R. 4:17-4. R. 4:23-5(b). The imposition of such a sanction, however, is clearly not an absolute requirement but rather is left to the discretion of the trial court. Clark v. Fog Contracting Co., supra, 125 N.J. Super. at 162. See Reilly v. Spiegelhalter, 100 N.J. Super. 276, 283-284 (App.Div.1968). Factors that should "'strongly urge'" a trial court not to impose sanctions include "(1) the ...


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