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Wenz v. Allstate Insurance Co.

December 16, 1998

FRED WENZ AND MADELINE WENZ, PLAINTIFFS-APPELLANTS,
v.
ALLSTATE INSURANCE CO., DEFENDANT-RESPONDENT.



Before Judges Baime, Conley, and A.a. Rodr¡guez.

The opinion of the court was delivered by: Conley, J.A.D.

[9]    Argued December 2, 1998

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

This appeal arises from a jury verdict on personal injury damages. Plaintiff was seriously injured in a snowmobile accident, ultimately requiring the removal of his spleen with post-operative complications and a period of hospitalization. Although he seems to have recovered with few residuals, the loss of his spleen presents, according to the undisputed testimony of his doctor, a probability of a 58% risk of incurring asplemic sepses (infection) and, if incurred, a 50% to 75% risk of death. Fortunately, as of the date of his jury trial on damages, five years from the accident, plaintiff had not incurred such infection. Initially, plaintiff sought recovery from the tortfeasor. When it became clear that the tortfeasor was uninsured, plaintiff brought an action on his own uninsured motorist policy. The jury returned a verdict of $15,000 with a $5,000 per quod award for plaintiff's wife.

On appeal, plaintiff contends:

POINT I. THE VERDICT OF $15,000 FOR THE CONSEQUENCES OF THE TRAUMATIC INJURY TO FRED WENZ WAS SO DISPROPORTIONATE AS TO SHOCK THE CONSCIENCE, JUSTIFYING JUDICIAL INTERFERENCE WITH THE QUANTUM OF DAMAGES ASSESSED.

POINT II. A PROBABLE MISUNDERSTANDING AND JURY CONFUSION CONTRIBUTED TO THE INSUFFICIENT VERDICT.

POINT III. THE COURT ERRED IN REFUSING TO CHARGE FEAR OF DEVELOPING FUTURE DISEASE.

POINT IV. A NEW TRIAL ON DAMAGES, OR ALTERNATIVELY ADDITUR SHOULD HAVE BEEN GRANTED.

We have considered these contentions in light of the applicable law and entire record. We address points I and II as we are convinced, considered together, and perhaps for a slightly different reason, a reversal is required. As to point III, we comment only that since there will be a retrial, and depending upon the evidence presented, the trial Judge should reconsider plaintiff's request for a Mauro v. Raymark Industries, 116 N.J. 126 (1989), charge.

We acknowledge at the outset that we are not necessarily convinced the verdict here was so shockingly disproportionate as to warrant a new trial. In denying plaintiff's motion for new trial, the Judge observed:

It is worth noting that the plaintiff was able to drive his snowmobile from the scene of the accident and the potential for future consequences from his injury was minimal. Finally, the jury was aware that the plaintiff worked in a family business and lost no pay. This circumstance could also have lessened greatly the impact or even credibility of the alleged one year inability to work.

We suppose there was some basis for the jury's discounting the evident seriousness of plaintiff's injuries and the consequent pain and suffering, albeit from which he recovered, such that the award itself might not be considered manifestly unjust. Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977). We need not, therefore, set forth all of the details concerning those injuries and their impact upon him. But suffice it to say, there is much to the trial Judge's astonishment upon first learning of the jury verdict when he said "[t]his, I didn't expect."

As we have set forth at the outset, the case arose as an uninsured motorist (UM) action against plaintiff's own carrier because the tortfeasor had no insurance. But the sole issue for the jury was the nature and extent of plaintiff's injuries and the amount of money needed to recompense him therefor. The fact that the monies were to come from a UM policy, the existence or nonexistence of coverage of the tortfeaser, and the amount of coverage plaintiff might have under his own ...


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