On appeal from the New Jersey Superior Court, Law Division, Mercer County; no. MER-L-3401- 97; MER-L-005221-93.
Before Judges Keefe, Steinberg and Weissbard.
The opinion of the court was delivered by: Keefe, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
W. John Weir, II argued the cause on behalf of appellant Nelia J. Robbi in A-2247-99T5; William F. Hartigan, Jr. argued the cause on behalf of Ms. Robbi as cross-appellant in A- 2619-99T5, and A-6752-99T5 (McLaughlin & Cooper, attorneys; James J. McLaughlin of counsel; Thomas M. Barron, on the brief for Robbi as appellant; Mr. Hartigan, on the brief for Robbi on the cross-appeal).
The issues in these three appeals arise from an automobile accident that occurred on July 8, 1992. Although argued on different dates, we now consolidate the appeals for the purpose of this opinion.
The essential facts are undisputed. The automobile accident in question involved only one automobile, driven by defendant Nelia J. Robbi and insured by New Jersey Manufacturers Insurance Company (NJM). Plaintiff Marie Conrad was a passenger in the Robbi automobile. Robbi lost control of her vehicle. As a result, the vehicle crossed over the opposing lane of traffic, left the roadway and entered a field where it came to a stop when the left front quarter panel slammed into a tree. At the time of the accident Conrad was sixteen years old and Robbi was eighteen.
Conrad was seriously injured. As a result, she instituted suit against Robbi, the Trenton Board of Education (the Board), A.E.O. Camp and Dorothy Katz (the Conrad matter). Discovery revealed that during the summer of 1992, Conrad and Robbi were both employed as counselors at a summer camp program, commonly known as the Reading and Recreation Program (Program) for underprivileged elementary school students from Trenton. The Program was directly operated by the Hopewell Valley Association for Equal Opportunities, Inc. (A.E.O. Camp). Defendant Dorothy Katz, who volunteers her time, is a member of A.E.O.'s Board and the Director of the Program. Both Conrad and Robbi were paid employees of the Program which derived its funds from private donations.
Katz obtained insurance coverage for the Program by writing a letter to the Board each summer requesting its sponsorship of the Program. In a letter dated June 17, 1992, Katz wrote Thomas Morgan, Trenton's Assistant Superintendent for Business Administration, informing him that:
The Reading and Recreation Program for Trenton children is applying for the sponsorship of the Board of Education of Trenton. This sponsorship includes coverage for workers liability insurance, compensation insurance, umbrella insurance and permission to participate in the Summer Foods Program, which has been granted for many consecutive years.
The Reading and Recreation Program buses 120 Children to Hopewell each weekday for five weeks. They are divided into small groups which rotate between teachers of reading, music, drama, arts, crafts, swimming. Counselors lead them in sports and games. The money for this program is raised privately. The program is free to the children. Counselors and teachers are chosen from Trenton, Princeton, and Pennington.
The Board approved the sponsorship of the Program at its meeting on June 25, 1992.
Thereafter, Marsh & McLennan, Inc., the Board's insurance broker, issued two certificates of insurance to the Program. The certificates stated that the Trenton Board of Education was covered by the New Jersey School Boards Association Insurance Group. One certificate was for the Pennington Presbyterian Church and the other was for Hopewell Elementary School. Both forms had places for automobile liability endorsements. However, both were left blank. In any event, both certificates stated that "[t]he captioned policies include coverage for the Summer Reading and Recreation Program sponsored by the Trenton Board of Education from 6/29/92 thru 7/31/92." Katz stated at her deposition that she believed that the insurance provided by the Board covered all injuries that might have been sustained by campers or staff.
The morning session of the Program was held at Hopewell Elementary School, and the afternoon session was held at the Pennington School. The Program provided school buses to transport the campers between the two facilities. However, the counselors were not provided transportation, and, therefore, were responsible for getting themselves from Hopewell Elementary School to the Pennington School.
With this background in mind, it is appropriate to discuss the pretrial determinations that were made with respect to certain legal issues. Robbi moved for dismissal of Conrad's complaint against her on the ground that it was barred by the fellow-servant rule, N.J.S.A. 34:15-10. In denying Robbi's motion, the motion judge found that Conrad and Robbi were co- employees on the date of the accident and that the accident arose out of and in the course of their employment. Relying on Thompson v. Family Godfather, Inc., 212 N.J. Super. 270 (Law Div. 1986), the judge found that the fellow-servant defense does not apply where, as here, the injured employee is under the age of eighteen and elects to sue in the Superior Court rather than in the Division of Workers' Compensation. At the same time, the motion judge denied the Board's motion for summary judgment on the ground that there were genuine issues of fact as to who employed Conrad and Robbi.
While the Conrad matter was awaiting trial, NJM instituted a declaratory judgment action against Conrad and the Board. The action sought, among other things, to have the Board declared responsible for Robbi's representation and provide indemnification for any judgment entered against her. Conrad instituted a third party action against Marsh & McLennan, claiming that it had a duty to provide automobile insurance coverage for the subject accident and failed to do so.
Relying on Variety Farms, Inc. v. New Jersey Manufacturers Ins. Co., 172 N.J. Super. 10 (App. Div. 1980), the same motion judge found that since Conrad and Robbi were acting within the scope of their employment when the accident occurred, workers' compensation insurance, rather than automobile insurance, would apply. Accordingly, based on the Board's agreement with the A.E.O. Camp to provide insurance for the Program, the judge required the Board to defend and indemnify Robbi in the Conrad matter. The question of which entity was Robbi's employer, the Board or the A.E.O. Camp, was left undecided.
Thereafter, the Conrad matter proceeded to trial before another judge. Robbi's negligence was not seriously disputed. Because one of the issues on appeal is whether the verdict rendered for Conrad was excessive, we summarize the testimony on that issue in some detail.
Conrad was transported by ambulance to the Princeton Medical Center. She was treated at the hospital by Dr. Robert Dunn, M.D., an orthopedic surgeon. Dr. Dunn's testimony was offered at trial through a de bene esse deposition. He recalled that when he first examined Conrad several hours after the accident "she had a great deal of tenderness in her low back area . . . at the upper end of the lumbar spine. She also had black and blue marks, abrasions over both knees in the upper lower leg area, the upper tibia, which is just below the knees, and she was tender in both knees. After conducting a number of diagnostic tests, Dr. Dunn concluded that Conrad sustained a compression fracture. He explained "[i]n other words, the front of the vertebra had squashed down and one piece of that had what's called retropulsed or gone back into the spinal canal."
As a result, Dr. Dunn performed surgery the next day to repair Conrad's back. The surgery entailed the fusing of Conrad's spine from vertebra T9 to vertebra L3. Dr. Dunn had to remove a section of bone from Conrad's pelvis and place it in her back in order to fuse the broken vertebra to the vertebra on either side of it. In addition, the surgery required the insertion of metal Harrington rods into her back to support the fusion process.
As a result of the surgery, Conrad was left with two scars, one on her back and one on her pelvis. Dr. Dunn explained that Conrad's scars were permanent, however, the color of the scars would fade over time. Conrad remarked at trial that "both scars are still very sensitive to touch. I tried to apply creams so that they might fade, but it doesn't really work. I'm aware of them." Conrad added, "I still will not wear a two piece bathing suit. Probably never will... I don't wear backless dresses, backless shirts, halters, anything of that nature. Anything that would expose it."
After surgery Conrad was required to wear a hard plastic body brace twenty-four hours a day for three months to prevent her from moving her back and hindering the healing process. When the hard body brace was removed, Conrad had to wear a soft body brace for two additional months, which she was only allowed to remove for bathing.
Dr. Dunn testified that after the back brace was removed he prescribed physical therapy, which Conrad attended three times a week for nearly five months. After the formal physical therapy sessions ended, Dr. Dunn prescribed a number of home ...