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Humenik v. Gray

April 10, 2002

JACQUELINE HUMENIK, AN INFANT BY HER GUARDIAN AD LITEM, JOSEPH HUMENIK AND JOSEPH HUMENIK, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,
v.
TAFT GRAY, III AND TAFT GRAY, JR., DEFENDANTS/THIRD PARTY PLAINTIFFS,
v.
ALLSTATE INSURANCE COMPANY, A NEW JERSEY CORPORATION, THIRD PARTY DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division,Union County , L-1551-96.

Before Judges Stern, Lintner and Parker.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 5, 2002

Allstate Insurance Company (Allstate) appeals from an adverse jury verdict in a declaratory judgment action finding that the injuries sustained by plaintiff Jacqueline Humenik were not the type which may reasonably be expected to result from the intentional acts of defendant Taft Gray, III (Gray). Allstate raises the following points on appeal.

POINT I

IT WAS ERROR TO INFORM THE JURY THAT IF ALLSTATE WAS SUCCESSFUL THAT GRAY WOULD HAVE TO PAY A $150,000 VERDICT AND HUMENIK MIGHT NOT BE ABLE TO COLLECT IT.

POINT II

THE COURT SHOULD HAVE ALLOWED AN ALLOCATION BETWEEN THOSE INJURIES WHICH WERE REASONABLY FORESEEABLE AND THOSE WHICH WERE NOT.

POINT III

THE VERDICT SHEET IMPROPERLY CONTAINED TWO QUESTIONS.

We reject Allstate's contentions and affirm.

We combine the relevant facts and procedural history which are not substantially disputed. Gray, a high school freshman, intentionally shoved plaintiff, a sophomore, into a locker at the Scotch Plains/Fanwood High School. Plaintiff instituted a personal injury suit against Gray, who in turn filed a third- party action against Allstate seeking a declaration of coverage under a homeowner's policy issued to his father, which contained the following exclusion:

Losses We Do Not Cover:

1. We do not cover any bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which are in fact intended by an insured person.

Following a bench trial on the declaratory judgment action, the trial judge found that Gray was negligent, and entered judgment against Allstate requiring it to defend and indemnify Gray. Almost one year later, a jury returned a verdict against Gray, awarding plaintiff $150,000.

Allstate appealed the declaratory judgment and the jury verdict. In an unpublished opinion we affirmed the jury verdict. However, we found that Gray's acts were intentional but nevertheless covered by the expressed provisions of Allstate's policy exclusion so long as the injuries sustained by plaintiff were not "reasonably expected to result." Thus, we vacated the judge's finding of insurance coverage and remanded "for the limited purpose of deeming whether the bodily harm inflicted on plaintiff was of a type 'which may reasonably be expected to result' from Gray's intentional acts." We added that "[i]f the consequences of those acts were remote, highly improbable or extraordinary, then coverage is to be found."

Following a three-day trial, a jury found that the injuries inflicted upon plaintiff were not the type which may reasonably be expected to result form Gray's intentional acts. The trial focused upon plaintiff's injuries. The testimony of Dr. Kenneth Zahl, a board-certified anesthesiologist with a sub-specialty in pain management and pain control medicine, was presented by plaintiff via videotape deposition. He testified that plaintiff's history revealed that she developed symptoms of a common sprain to her left wrist resulting in the application of a temporary splint. However, the pain worsened and plaintiff was referred to a hand surgeon who diagnosed instability in the wrist and intervened surgically to perform a limited fusion of the wrist, which required the grafting of piece of bone taken from plaintiff's iliac crest.

Plaintiff ultimately came under Dr. Zahl's care and treatment. Dr. Zahl diagnosed Reflex Sympathetic Dystrophy or Chronic Regional Pain Syndrome (RSD). He described plaintiff as suffering from hypersensitivity to light touching and "magnification pain" with normal touching. He explained RSD as the development of sympathetic and reflex reactions to what otherwise is a "fairly trivial injury." He stated:

The pain continues to send more signals to the brain or other areas of the spinal cord and then the symptoms then get reflected back on the hand or the foot. And the dystrophy occurs . . . there are permanent changes in the bones, in the ligaments, in the tissues, or in the skin. . . . It's what we call a vicious cycle. The more pain there is, the more is perceived and then there is more pain outflow going back to the original source of injury.

Dr. Zahl's treatment consisted of injecting anesthesia into a portion of the sixth cervical vertebrae. He performed nine such injections over a period of time, with the last injection being given on December 4, 1997. Dr. Zahl opined that the RSD sustained by plaintiff is a permanent condition for which there is no known cure and was causally related to the pushing incident. He related that the condition is "very rare occurrence . . . atypical and very uncommon." He acknowledged that, in his opinion, the injuries sustained by plaintiff were not reasonably expected to result from a push into a locker or hard surface.

On cross-examination, Dr. Zahl conceded that a wrist injury such as a sprain is not an uncommon occurrence under the circumstances presented. He also recognized that a fractured wrist would not be rare in a bad fall but, "most people [who] do fall for one reason or another don't always break their wrist."

He stated that from plaintiff's history it was initially believed that she suffered from a sprain but she was later diagnosed with a fracture that did not heal, thus requiring surgery. He testified that plaintiff's condition, which he described as a wrist fracture that developed into a need for repetitive procedures and ultimately RSD, was a "unique complication and fairly rare" in someone plaintiff's age.

Allstate presented two medical experts. Dr. Eli Curi, a vascular surgeon, testified that plaintiff was not suffering from RSD. Dr. Curi conceded on cross-examination that plaintiff had pre-existing Tourette's Syndrome, a "hetergenetic [condition] which includes both motor and behavior dysfunction [which] probably has been an important factor in the hypersensitivity and slow progress for the achievement of maximum recovery." Dr. David Grefinger, an orthopedic surgeon, testified that the diagnosis of RSD had never been firmly established and plaintiff's symptoms were not consistent with the syndrome. He felt that plaintiff sustained a sprain that developed into a ligament injury causing instability in three bones of the wrist, thus requiring fusion surgery. On cross-examination Grefinger acknowledged that when ...


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