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Mayor H. Paul v. Ohio Casualty Insurance Co.

Decided: March 6, 1987.

MAYOR H. PAUL, PLAINTIFF-RESPONDENT,
v.
OHIO CASUALTY INSURANCE COMPANY, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Burlington County.

Petrella, Bilder and Gaynor. The opinion of the court was delivered by Petrella, P.J.A.D.

Petrella

Ohio Casualty Insurance Company (Ohio Casualty) appeals from the trial court's determination, after our remand in Paul v. Ohio Casualty Ins. Co., 196 N.J. Super. 286 (App.Div.1984), certif. den. 99 N.J. 228 (1985), that the "Personal Injury Protection" (PIP) charges incurred for plaintiff's care, including certain incidental expenses, were reasonable.

Plaintiff, Mayor H. Paul, is a quadriplegic who requires around-the-clock attendant care. The underlying facts are set forth in our prior opinion (196 N.J. Super. 286), and need not be detailed at length here. In our earlier opinion we concluded that the cost of the attendants constituted reasonable medical

expenses compensable under PIP (N.J.S.A. 39:6A-2e) and reversed the trial judge's contrary determinations in that regard.

Thereafter the trial judge concluded that we had not considered the "reasonableness" of the amount of the expenses and had limited our opinion to a legal determination that costs of attendants were within the PIP coverage. He reasoned that because Ohio Casualty had previously successfully moved to dismiss those portions of the complaint relating to such expenses, it had never presented proof at the earlier trial on the questions of reasonableness and necessity of the coordinator and attendants. He then conducted a hearing at which he found that the expenses for the coordinator and attendants were indeed reasonable and ordered their payment, as well as certain incidental expenses.

On this appeal Ohio Casualty argues that PIP charges incurred for plaintiff's care were "clearly unreasonable" and can be rendered at a lower cost, that the trial judge's contrary findings were against the weight of the evidence,*fn1 and that in any event the inclusion of what it characterizes as incidental expenses as medical expenses was improper. It also claims that incidental expenses such as payroll, fringe benefits and transportation do not constitute medical expenses; defendant should have some control with respect to incidental expenses; the trial judge erred in not requiring disclosure of plaintiff's tort settlement amount, and plaintiff has reaped a double recovery since the tort settlement amounts were already factored into the attendant care expenses.

We note initially that the claim that the trial judge erred in not requiring disclosure of the tort settlement amount relates to an aspect of the judge's 1983 ruling which was never challenged on appeal. Hence, the appeal from that ruling is untimely. R. 2:4-1(a) and R. 2:4-4(a). Moreover, in the hearing held before the remand the trial judge had determined that PIP benefits had been specifically excluded from the settlement, and that the release that was exchanged between the parties specifically stated that such benefits were not taken into account in the settlement.

We have considered all of Ohio Casualty's contentions in light of the record and the arguments in the brief and are satisfied that they are clearly without merit. R. 2:11-3(e)(1)(A) and (E). The trial judge concluded that the incidental expenses involved are compensable under PIP because they are directly related to the delivery of attendant care in a manner and amount found to be reasonable. The judge's findings and determination that the charges for the coordinator and attendants, including the related incidental expenses, were reasonable are fully supported by sufficient credible evidence in the record. See Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-484 (1974).

Parenthetically we note that the abstract term "reasonable" has a dual meaning when discussing the expenses involved in this case. In the first place, we clearly held in our former opinion that the types of services and related expenses being provided were "reasonable" in the sense that they were reasonable and necessary medical expenses. The second aspect of the term "reasonable" relates to the quantum of the amount paid for such services. The judge below essentially dealt on the remand hearing with the latter aspect. We also note our disapproval of Ohio Casualty's apparent ...


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