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Bardis v. First Trenton Insurance Co.

December 20, 2007

JOHN BARDIS AND HELEN BARDIS, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
FIRST TRENTON INSURANCE CO., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-218-04.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 23, 2007

Before Judges Skillman, Winkelstein and Yannotti.

On February 13, 1997, plaintiff John Bardis was involved in an automobile accident.*fn1 After settling with the tortfeasor, he instituted this underinsured motorist (UIM) claim against defendant, First Trenton Insurance Company, his automobile insurance carrier. Defendant conceded that the driver who caused the accident, Joseph Bologna, was negligent. Because plaintiff suffered from degenerative disc disease and had been in prior and subsequent automobile accidents that had caused him back pain, the case was tried to a jury on proximate cause and damages, primarily with regard to plaintiff's herniated disc at L4-5. The jury concluded that plaintiff's injuries were not proximately caused by the February 1997 accident.

On appeal, plaintiff raises a number of issues. Among them is the novel question of whether, as support for his claim that his injuries were proximately caused by the accident, he is entitled to present evidence that his insurance carrier paid personal injury protection (PIP) benefits for medical expenses he incurred following the accident.*fn2 For evidentiary and public policy reasons, we hold that evidence that an insurance carrier paid PIP payments on an insured's behalf is not admissible in a UIM case to establish that the accident was a proximate cause of the insured's injuries. For that and other reasons, we affirm the final judgment in favor of defendant.

We begin with the trial evidence. Plaintiff had been involved in an automobile accident in 1991. He testified that he was driving twenty to thirty miles an hour on the Garden State Parkway when he was struck from the rear, causing him to hit the car in front of him. He sought treatment for his injuries until sometime in 1992. Medical records showed that he suffered pain radiating into both legs and he was unable to stand or sit. Plaintiff testified that he was symptom-free from 1992 until the February 1997 accident, but a 1998 doctor's report indicates that he had a prior back injury "four or five years" earlier, presumably referring to the 1991 accident, from which he had residual symptoms.

Plaintiff owns and works at the Golden Bell Diner in Freehold. In February 1997 he was involved in the three-car accident that is the subject of this lawsuit. His car was stopped while he was waiting to turn into the diner parking lot. A car operated by John Tague was stopped behind him. According to Tague, the car behind him, driven by Bologna, struck Tague's car, causing it to strike plaintiff's car. Plaintiff testified that his vehicle sustained approximately $3000 in damages.

Plaintiff asserted that his left shoulder did not strike his vehicle, but his left knee struck the bottom of the dashboard. A portion of his forehead, above his left eye, struck the ceiling of the inside of the car. He refused medical treatment at the scene. Following the accident, he drove the car into the diner parking lot and stayed at work for "a couple of hours" before going home. All parties to the accident drove their vehicles from the accident scene.

The next day, plaintiff went to the emergency room complaining of pain in his back, left shoulder, left knee and neck. An examination revealed tenderness in his neck, back spasms, and limitation of motion of his shoulder and knee. X-rays were substantially negative, but his low back showed mild degenerative spurs indicating a pre-existing, degenerative condition.

Before the accident, since 1985, plaintiff had worked seven days a week at the diner as a chef, which required him to lift heavy objects. Following the accident, he continued to work there in various capacities.

Several weeks after the accident, plaintiff began treatment with Dr. Brian Halpern, board certified as a family physician and in sports medicine. At his first visit, plaintiff related a history of having no prior problems with his neck, back or shoulder. He complained of pain in his neck; headaches; radiating pain from his neck down to his hand with numbness of his left hand; pain in his back that radiated into his leg; and pain in his left shoulder. Dr. Halpern's examination revealed muscle spasm in plaintiff's neck and back, as well as decreased range of motion in his neck, back and left shoulder. A sensory examination showed decreased sensation "in the distribution of one of [plaintiff's] L5 nerve[s] from his back." The doctor's impression was that plaintiff had cervical and lumbosacral strains and left shoulder rotator cuff irritation.

Dr. Halpern ordered MRIs of plaintiff's neck, back, and shoulder, which were performed in April 1997. The cervical MRI disclosed a posterior right central disc herniation at C4-5, and "degenerative disc generation" and a bulging disc at C6-7. The lumbar MRI showed disc desiccation at L4-5, disc bulges at L2-3 and L4-5, and minimal central stenosis at L4-5; this MRI did not reveal any herniations. An MRI of plaintiff's left shoulder disclosed a torn rotator cuff.

On September 11, 1997, plaintiff was in a subsequent motor vehicle accident, a head-on collision. He testified that his car and the other car were going ten miles per hour, and it was "not [a] strong collision." He said his car sustained minor damage.

Plaintiff sought an opinion from Dr. Jack Habermann sometime after the September 1997 accident. According to Dr. Habermann's notes, plaintiff told him that he had been in a car accident, and was rear-ended at a speed of approximately fifty to sixty miles per hour. The record does not indicate to which accident the note was referring.

Dr. Habermann ordered new MRIs for plaintiff's neck, back and left shoulder, which were performed on October 18, 1997. The shoulder MRI showed a tear of the rotator cuff; the cervical MRI showed bulging discs, but the previously-demonstrated herniated disc was no longer present; the lumbar MRI showed a bulging disc at L3-4 and a herniated disc at L4-5, where previously there had been a bulging disc. Both Dr. Halpern and the defense expert, Dr. Douglas Noble, a board certified neuroradiologist, testified that the herniated disc in plaintiff's low back was not present on the April 1997 MRI, but was first observed on the October 1997 MRI.

Plaintiff was involved in another automobile accident in 1999. He testified that he was in a collision with a police officer, but he did not recall any of the details.

Another MRI of plaintiff's lumbar spine was performed in August 2001. Dr. Noble said the MRI revealed mild degenerative disc disease at L1-2 and L2-3, degenerative disc disease with ridging at L3-4, and degenerative disc disease and osteophytic ridging at L4-5; the doctor attributed the findings to normal age-related wear and tear. He also described a small posterior herniated disc at L4-5, with no evidence of nerve compression.

Plaintiff underwent an L4-5 laminectomy and fusion surgery in February 2003, which he asserts were necessitated by the February 1997 automobile accident. Defendant claims that the surgery was not related to injuries plaintiff sustained in that accident, but that plaintiff's condition was caused by either a normal degenerative process or by plaintiff's September 1997 automobile accident. The operative report listed the surgeon's preoperative diagnoses as: (1) degenerative disc disease; (2) spinal stenosis; (3) disc herniation of L4-5; (4) lumbar instability; and (5) lumbar radiculopathy. ...


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