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Zoller v. Transamerica Insurance Co.

Decided: March 9, 1987.

ERWIN H. ZOLLER, PLAINTIFF-APPELLANT,
v.
TRANSAMERICA INSURANCE COMPANY, DEFENDANT-RESPONDENT, AND THE ADLER AGENCY, DEFENDANT



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

King, Deighan and Havey. The opinion of the court was delivered by Havey, J.A.D.

Havey

The sole issue raised by this appeal is whether an insured is entitled to recover income continuation benefits under his no-fault automobile insurance policy and N.J.S.A. 39:6A-4b when an automobile-related injury, combined with the availability of early retirement benefits, motivates him to retire, resulting in a loss of income. We conclude that an insured is not entitled to benefits unless there is objective, medical proof that the insured's termination of employment was because of bodily injury rendering him incapable of carrying out his work-related duties. While the pain and discomfort suffered by plaintiff here was a substantial factor in motivating him to take early retirement, he was able to resume his employment after the automobile accident and to carry out his job tasks. Consequently, he was not entitled to income continuation benefits. We therefore affirm.

Plaintiff, an airline mechanic, was injured in an automobile accident unrelated to his employment in 1982 at age 61, while covered by a no-fault automobile insurance policy issued by defendant Transamerica Insurance Company. His policy provided first-party coverage for minimum income continuation benefits of $100 per week to a limit of $5,200 in accordance with N.J.S.A. 39:6A-4. He also was provided "Option 4" benefits of

$200 per week to a limit of $26,000 as provided under N.J.S.A. 39:6A-10.

Plaintiff was out of work for one month as a result of the accident. After returning to work for approximately 15 months, he decided to take early retirement which became available to him at age 62. Upon retirement plaintiff made a claim for income continuation benefits for the income loss he suffered as a result of his "forced retirement." Prior to retirement he earned approximately $36,000 per year. Under the early retirement program, he receives $9,000 per year in pension benefits. Defendant Transamerica denied the claim and plaintiff instituted this declaratory action in the Law Division.*fn1

At the bench trial plaintiff testified that he worked at United Airlines for nearly 30 years prior to the automobile accident. His duties as a mechanic included the repair of component parts to airplanes, including engines, brakes, tires and appliances. The work entailed ". . . a lot of twisting, yanking and buggy-lugging."

As a result of the accident plaintiff suffered injuries to the lower back and cervical spine. He was treated conservatively and was prescribed medication. When he returned to work after the accident, plaintiff had difficulty performing his work-related tasks. Strenuous work caused pain and discomfort. His co-employees helped him with the heavier work. Plaintiff stated that this concerned him since "I just like to carry my own weight" and "I felt like an also-ran."

Plaintiff decided to take early retirement after discussing the matter with his wife. The most significant factor in his decision was the difficulty he had in performing the job. He stated

that "[i]t would have been definitely more appropriate for me to continue until I was 65 financially and otherwise, but if you're miserable on the job and you're hurting when you're doing it, why prolong it?" Plaintiff conceded that a prime factor in his decision was the availability of retirement benefits at 62, but stressed that the governing factor was his health.

Dr. Max Novich, a physician specializing in orthopedics, testified on plaintiff's behalf. He stated that plaintiff had sustained a cervical spine sprain, a strain of the paracervical and shoulder ridge muscles with myosytis superimposed with aggravation of a pre-existing degenerative changes in L3-L4, L4-L5, and L5-S1. Dr. Novich told plaintiff to ". . . lay off, do the best he could, but don't consider an operation" because of plaintiff's age. Dr. Novich was of the view that plaintiff's injury and disability were permanent in nature and that plaintiff's work as a mechanic ". . . with that kind of a disability has to lead to pain, more pain, increased pain." When Dr. Novich was asked on cross-examination whether he ...


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