On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Approved for Publication July 10, 1995.
Before Judges Michels, Keefe and Humphreys. The opinion of the court was delivered by Keefe, J.A.D.
The opinion of the court was delivered by: Keefe
Plaintiff Teresa Thomas (Teresa) fell while shopping at defendant Toys "R" Us. She and her husband, William, instituted suit against defendant for damages resulting from that fall. A jury returned a verdict finding defendant 75% negligent and Teresa 25% contributorily negligent. The jury awarded damages as follows: $10,887 for medical expenses; $42,504 for lost wages; $11,012 for future lost income; $12,500 for pain and suffering; and $0 for William's per quod claim. The total judgment in favor of Teresa was $76,903. The Judge molded the verdict in accord with N.J.S.A. 2A:15-97 as follows: $1,642 for medical expenses; $6,334 for lost wages; $0 for future lost wages; and $9,375 for pain and suffering.
Plaintiffs' motion for an additur or a new trial was denied. Plaintiffs now appeal and present the following issues for resolution.
POINT I THE TRIAL COURT IMPROPERLY DENIED PLAINTIFFS A NEW TRIAL AND/OR ADDITUR ON BOTH THE ISSUES OF DAMAGES AND LIABILITY
POINT II THE TRIAL COURT MADE TWO ERRONEOUS EVIDENTIAL RULINGS RESULTING IN A MANIFEST DENIAL OF JUSTICE
POINT III THE COURT'S TREATMENT OF THE COLLATERAL SOURCE RULE WAS IMPROPER
A. The Trial Court Committed Reversible Error By Not Having An Evidentiary Hearing Before Molding The Verdict as to Collateral Sources.
B. The Court Miscalculated Plaintiff's Medical Benefits Resulting in an Improper Application of the Collateral Source Rule.
C. The Trial Court Improperly Reduced Plaintiff's Lost Wage Award.
D. The Trial Court Erroneously Used Plaintiff's Social Security Benefits as a Set-off in Violation of Federal Preemption.
We have carefully reviewed the record in light of plaintiffs' contentions which were thoroughly and articulately presented in their appellate briefs and at oral argument. However, we are satisfied, for the reasons stated herein, that there is no warrant for our intervention, and that the judgment under review must be affirmed.
In order to preserve a "weight of the evidence" issue for appellate review, the party seeking to advance the issue must make a timely motion for a new trial. In this case, the trial Judge ruled that plaintiffs' motion for a new trial was not filed and served in a timely fashion. However, he addressed the merits of plaintiffs' motion. Although the trial Judge ruled on the merits of the motion, the procedural issue has been preserved for appellate review. Defendant urges that the trial Judge was correct in his ruling on the motion, and that we need not address the merits of the weight of the evidence issue now presented by plaintiffs. Plaintiffs, on the other hand, maintain that they substantially complied with R. 4:49-1(b), and are not procedurally barred. We agree with plaintiffs' contention.
A motion for a new trial "shall be served not later than 10 days after . . . the return of the verdict of the jury." R. 4:49-1(b). The period begins to run from the date the verdict is received in open court, and it is a non-relaxable rule, even in extenuating circumstances, R. 1:3-4(c). Spedick v. Murphy, 266 N.J. Super. 573, 587-588, 630 A.2d 355 (App. Div.), certif. denied, 134 N.J. 567 (1993). However, we have recognized that the requirements of the rule are met in situations where there is "substantial compliance" with its terms. Stegmeier v. Saint Elizabeth Hosp., 239 N.J. Super. 475, 571 A.2d 1006 (App. Div. 1990) (finding substantial compliance with the rule was found where the motion papers were delivered to an independent carrier within the ten day time period). In this case, substantial compliance occurred when plaintiffs attempted to deposit the motion papers at the Freehold post office on a business day during normal business hours, but were prevented from doing so because of an ...