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Palmer v. Kovacs

May 16, 2006

NANCY A. PALMER, PLAINTIFF-RESPONDENT,
v.
KALEENA KOVACS AND STEVEN KOVACS, DEFENDANTS-APPELLANTS.
NANCY A. PALMER, PLAINTIFF-APPELLANT,
v.
KALEENA KOVACS AND STEVEN KOVACS, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, MONL-5544-01.

The opinion of the court was delivered by: Sabatino, J.S.C.,

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 18, 2006

Remanded February 6, 2006

Resubmitted March 9, 2006

Before Judges Skillman, Axelrad and Sabatino.

(temporarily assigned).

As we noted in our opinion dated February 6, 2006, the present appeal and cross-appeal raise multiple issues arising out of a final judgment entered in favor of plaintiff following a four-day jury trial of this automobile accident case in August 2004. In our first opinion we affirmed the trial court's denial of summary judgment to defendants under the Automobile Insurance Cost Reduction Act of 1998 ("AICRA"), N.J.S.A. 39:6A-8, given the sufficiency of plaintiff's injuries and corresponding medical proofs to surmount the AICRA verbal threshold. We also remanded the case to the trial judge for an amplified statement of reasons pursuant to R. 1:7-4(a), more fully expressing his rationale for denying defendants' motion for a new trial or, alternatively, for the remittitur of the jury's $460,000 damages award.

We have since received and reviewed a transcript of the trial judge's amplified statement of reasons, in which he reaffirmed his original denial of defendants' post-trial motion and further explained his basis for that disposition. With the benefit of that submission, we now address defendants' appeal on that particular issue. We also resolve the remaining appellate issues, which concern the trial court's award of counsel fees and other sanctions pursuant to the offer-of-judgment rule, R. 4:58, and its calculation of the supersedeas bond defendants were required to post on appeal pursuant to R. 2:9-6.

Briefly, this case involves an intersection accident on April 10, 2000 in which an automobile driven by plaintiff Nancy Palmer, who was then age twenty-three, was struck by a vehicle operated by defendant Kaleena Kovacs. The force of the collision caused plaintiff's airbag to deploy. Plaintiff sustained neck and back injuries, as reflected by MRI studies and medical examinations, which persisted for more than two years following the accident. Summary judgment on liability was granted in favor of plaintiff.*fn1 The ensuing trial solely addressed damages, and plaintiff's proofs included no claims for economic loss. The jury awarded her $460,000 for past and prospective pain and suffering.

We now affirm the denial of the defendants' motion to set aside or remit the verdict, modify the trigger dates used by the trial court in shifting fees and other allowances to plaintiff under R. 4:58, and affirm the trial court's calculation of the requisite supersedeas bond pending further proceedings.

I.

It is well established that post-trial relief to a defendant from an allegedly excessive verdict should only be granted when the trial judge, "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, [determines that] it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1. In making an assessment of a verdict's excessiveness or insufficiency, the trial judge must consider the evidence in a light most favorable to the prevailing parties in the verdict. Caldwell v. Haynes, 136 N.J. 422, 432 (1994). To be dislodged, the verdict must constitute "a manifest injustice that shocks the judicial conscience." Carey v. Lovett, 132 N.J. 44, 66 (1993).

Our scope of review of such post-trial determinations is narrow. An appellate court shall not reverse a trial court's ruling on a motion for a new trial "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. The appellate standard of review is "substantially the same as that controlling the trial court except that due deference should be made to its 'feel of the case,' including credibility." Feldman v. Lederle Lab., 97 N.J. 429, 463 (1984).

Guided by these deferential standards, we thus consider the trial judge's determination, and his redetermination upon remand, that the verdict in this case did not "shock the judicial conscience" or "clearly and convincingly" impose a "miscarriage of justice." Our analysis requires a further explanation of the facts.

Plaintiff is a college graduate and a civil engineer. As noted above, she was twenty-three years of age at the time of this motor vehicle accident. She was then living in a third floor apartment, which she gained access to by walking up three flights of stairs. She was employed as a project engineer, frequently working out in the field at various job sites. Prior to the collision, she had been living independently, supporting herself, cleaning her own quarters, and doing her own laundry and other daily tasks.

Following the neck and back injuries that she sustained from the accident, plaintiff missed only two days of work. However, she testified at trial that her post-accident persisting pain limited her activities at work, causing her to go out in the field less frequently, to refrain from lifting objects, and to minimize bending over.

As her injuries and physical limitations continued, plaintiff moved out of her three-story walk-up unit and into her mother's residence about five months after the accident. Plaintiff testified that she did so because she could no longer maintain her own residence, as she found herself unable to perform daily chores such as laundry, cleaning the tub, scrubbing floors, vacuuming, sweeping and mopping. This relocation to her mother's residence caused plaintiff to experience a diminution of her independence and her day-to-day well being. As plaintiff testified on direct examination:

I just did not like living at home. I didn't get along with my mom's husband at the time. I didn't like having to move back into a very small bedroom from a one bedroom apartment to myself, [where I had] my own independence.

Plaintiff remained in her mother's residence for nearly two years until the summer of 2002 when she moved into a first-floor studio apartment. At the time of trial, plaintiff continued to receive assistance in maintaining that apartment.

Plaintiff also described in detail at trial numerous adverse impacts of her injuries upon her lifestyle, particularly jogging and attending sporting events:

Q: Are there . .. any recreational activities that you enjoyed before this motor vehicle accident?

A: Yes.

Q: And what were they?

A: I loved to go jogging, I loved it.

Q: How long did you jo[g] before the accident?

A: At a minimum four times a week. I would go as much as I could though. Sometimes I would go five, six days a week, but a minimum of four.

Q: And how long had you been doing that?

A: For as long as I can remember, I mean like all through high school, and all through college.

Q: How much free time did you have after you got your job?

A: After I got my job --

Q: Civil engineering job.

A: Well I had only nights and weekends.

Q: And during those times did you have a favorite activity that you took part in?

A: My favorite thing was jogging, but I also went to like sporting events with my boyfriend and stuff. And we went to like professional hockey games, professional football games, and I went to my brother's high school events.

Q: Okay. Did you give up any of those activities because of the pain in your neck and your back?

A: Yes, I gave up going to sporting events all together because I could not sit there.

Those chairs are completely uncomfortable. I can't sit for that long a period of time. When I get up I'm miserable because I have the pain, and sometimes, not all the time, but the shooting pains down the back of [my] leg. And I would just get all cramped up and stiff sitting in those chairs.

Q: Is that in both your neck and ...


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