On appeal from Superior Court of New Jersey, Law Division, Morris County.
Skillman, Kestin and Wefing. The opinion of the court was delivered by Skillman, J.A.D.
[269 NJSuper Page 464] This appeal requires us to determine the method by which the credit for payments from collateral sources required by the Tort Claims Act should be calculated in a case where a plaintiff has been found contributorily negligent.
Plaintiff brought suit under the Tort Claims Act for injuries he suffered when his motorcycle collided with an ambulance being operated by defendant John C. Doll, an employee of defendant Township of Rockaway. Plaintiff presented evidence at trial of $40,173.14 of medical expenses and $5,000 of lost wages for which he had been reimbursed by medical and disability insurance. A jury found both plaintiff and defendants negligent and assigned each of them 50% responsibility for the accident. The jury also returned a lump sum verdict of $150,000 for all of plaintiff's damages.
The parties disputed the proper method of molding this verdict. Defendants argued that the $150,000 jury verdict should be molded to $75,000 to reflect plaintiff's contributory negligence, and that the $45,173.14 paid by collateral sources should be deducted from this amount, yielding a net recovery to plaintiff of $29,826.86. Plaintiff argued that because he was only entitled to recover 50% of his damages due to his contributory negligence, the credit for the payments he received from collateral sources also should be reduced by 50%, thus yielding a net recovery of $52,413.43.
The trial court ruled in favor of defendants on this issue and entered judgment for plaintiff in the amount of $29,826.86. Although our analysis differs somewhat from the one urged by plaintiff, we conclude that the jury verdict should have been molded to yield a net recovery to plaintiff of $52,413.43.
Before discussing the meritorious issue presented by this appeal, we must consider plaintiff's argument that the trial court committed reversible error by denying his request for special interrogatories under which the jury would have been asked to return a separate verdict for his medical expenses and lost wages. We are satisfied that this argument is not properly before us. Plaintiff's notice of appeal stated that he was appealing "regarding credit to be received under the Tort Claims Act." Plaintiff sent a letter to the clerk of this court, dated December 7, 1992, reiterating that "the scope of plaintiff/appellant's appeal will only include the issues raised during the motion of July 10, 1992; that is, the
credit, if any, to be given to the defendant/respondent under the Tort Claims Act." Consistent with this limitation upon the scope of his appeal, plaintiff did not file the trial transcript with this court. As a result, we have not had the opportunity to review the parts of the trial transcript relating to plaintiff's damages claims, or even the trial court's reasons for denying plaintiff's request to submit separate jury interrogatories regarding his various damage claims. Therefore, the only issue before us is the proper method of calculating the credit to defendants for payments from collateral sources.
The credit for payments from collateral sources is required in suits under the Tort Claims Act by N.J.S.A. 59:9-2(e), which provides in pertinent part:
If a claimant receives or is entitled to receive benefits for the injuries allegedly incurred from a policy or policies of insurance or any other source other than a joint tortfeasor, such benefits shall be disclosed to the court and the amount thereof which duplicates any benefit contained in the award shall be deducted from any award against a public entity or public employee recovered by such claimant . . . .
The comment to N.J.S.A. 59:9-2(e) indicates that its intent is "to prohibit the receipt of duplicate benefits by a claimant." Report of the Attorney General's Task Force on Sovereign Immunity, comment on N.J.S.A. 59:9-2, at 234 (1972). Consequently, N.J.S.A. 59:9-2(e) must be interpreted to effectuate this intent. Ayers v. Township of Jackson, 202 N.J. Super. 106, 126-27, 493 A.2d 1314 (App.Div.1985), aff'd in part, rev'd in part, 106 N.J. 557, 525 A.2d 287 (1987).
We note initially that a plaintiff in a suit under the Tort Claims Act may withhold the presentation of any evidence of damages for which payment has been received from collateral sources. See Hayes v. Pittsgrove Township Bd. of Educ., 269 N.J. Super. 449, 454, 635 A.2d 998 (App.Div.1994). If plaintiff had followed this course, his damage award presumably would have been $104,826.86 (the $150,000 awarded by the jury less the $45,173.14 paid by ...