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Parker v. Esposito

June 28, 1996

CHRISTOPHER PARKER AND ELISE PARKER, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
VINCENT J. ESPOSITO AND FRUNGILLO FOOD SERVICE, INC. T/A FRUNGILLO CATERERS; FRUNGILLO CATERERS, INC., DEFENDANTS-RESPONDENTS.



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

Approved for Publication June 28, 1996.

Before Judges D'Annunzio, Conley and Braithwaite. The opinion of the court was delivered by D'annunzio, J.A.D.

The opinion of the court was delivered by: D'annunzio

The opinion of the court was delivered by D'ANNUNZIO, J.A.D.

The mirror of defendants' van struck plaintiff, *fn1 Christopher Parker, while plaintiff was standing at a bus stop. Plaintiff sustained serious injuries and commenced this action for damages. His wife, plaintiff Elise Parker, sued for loss of consortium.

Defendants conceded liability. After a trial solely on the issue of damages, the jury returned a verdict in favor of plaintiff for the sums of $1,500,000 for his pain, suffering, disability, and impairment of enjoyment of life, $167,000 for past lost income, and $550,000 for future lost income. The jury awarded no damages to Elise.

On appeal, plaintiffs contend that the trial court: (1) erred in denying their motion for a new trial or additur regarding the failure of the jury to make any award to Elise for loss of consortium; (2) erred in denying their motion for a new trial or additur regarding the inadequacy of the jury's award for plaintiff's future lost income; (3) misinterpreted and misapplied N.J.S.A. 2A:15-97, the collateral source statute; and (4) improperly charged the jury on the manner in which it should treat testimony about plaintiff's receipt of Social Security and disability payments.

[At the request of the Appellate Division, a lengthy Discussion of the evidence regarding damages contained in the filed opinion has been omitted from the published opinion.]

Regarding the collateral source statute, N.J.S.A. 2A:15-97, the Judge granted defendants' request for a credit against future income for the disability benefits plaintiff would be receiving for the next three years and for the Social Security benefits which he was presently receiving. The court ordered that the sum of $133,920, representing $3720 per month from December 1994, through December 1997, that plaintiff was guaranteed from CIGNA Group Insurance, alone or in conjunction with Social Security, be deducted from the $550,000 award, and that the balance, $416,080, be placed into an interest-bearing court account. After December 1997, upon motion by either party, the court would conduct a hearing to determine whether or not plaintiff was entitled to any portion of the $416,080 under the collateral source statute.

Plaintiffs contend that the trial court misapplied the collateral source statute. It provides:

In any civil action brought for personal injury or death, except actions brought pursuant to the provisions of P.L. 1972, c. 70 (C.39:6A-1 et seq.), if a plaintiff receives or is entitled to receive benefits for injuries allegedly incurred from any other source other than a joint tortfeasor, the benefits, other than workers' compensation benefits or the proceeds from a life insurance policy, shall be disclosed to the court and the amount thereof which duplicates any benefit contained in the award shall be deducted from any award recovered by the plaintiff, less any premium paid to an insurer directly by the plaintiff or by any member of the plaintiff's family on behalf of the plaintiff for the policy period during which the benefits are payable. Any party to the action shall be permitted to introduce evidence regarding any of the matters described in this act.

[N.J.S.A. 2A:15-97.]

Our Supreme Court addressed this statute in Kiss v. Jacob, 138 N.J. 278, 650 A.2d 336 (1994). There, the Court held that the statute did not apply to the proceeds of a settlement with a defendant determined not to have been a tortfeasor. Id. at 282. The Court ruled that the statute focused on the types of benefits contemplated by the common-law collateral source rule which the statute eliminated. Those common-law collateral sources included "life- or health-insurance policies, [benefits] from employment contracts, from statutes such as workers' compensation acts and the Federal Employers' Liability Act, from gratuities, from social legislation such as social security and welfare, and from pensions under special retirement acts." Ibid. The Court observed that the statute's legislative history "suggests strongly that the Legislature's essential concern was with insurance-type benefits." Ibid. Moreover, the Court concluded that the Legislature's purpose in enacting the statute was "to control spiralling automobile-insurance costs." Ibid.

We addressed the statute in Thomas v. Toys "R" Us, Inc., 282 N.J. Super. 569, 660 A.2d 1236 (App. Div.), certif. denied, 142 N.J. 574 (1995) and Lusby v. Hitchner, 273 N.J. Super. 578, 642 A.2d 1055 (App. Div. 1994). In Thomas, this court affirmed the deduction of social security benefits from an award for future loss of income, thereby reducing the award to zero. Id. at 588. In Lusby, we held ...


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