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Walsh v. Transit

January 25, 2008


On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-1684-04.

Per curiam.


Submitted January 14, 2008

Before Judges Lintner and Sabatino.

Plaintiff, Mary Walsh, was allegedly injured while a passenger in a bus operated by Princeton Airporter Service and driven by its employee, Charles Fisher, when it was struck in the rear by a vehicle driven by defendant Randy Heller. Liability was admitted and the matter was tried to a jury on the issues of non-economic, pain, suffering, and inconvenience damages under the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. The jury returned its verdict, finding that plaintiff had not "proven by a preponderance of the credible evidence that she sustained a permanent injury that was proximately caused by the October 9, 2002 accident."

Plaintiff does not appeal from the judgment entered following the jury verdict.*fn1 Instead, she appeals from the denial of two pretrial in limine motions.*fn2 In the first application, relying on Ingersoll v. Aetna Cas. & Sur. Co., 138 N.J. 236 (1994), and N.J.S.A. 2A:15-97, plaintiff sought to introduce into evidence $10,000 in medical bills that were paid by her automobile insurance carrier under its extended medical benefits coverage provided in compliance with N.J.A.C. 11:3-7.3(b). N.J.S.A. 2A:15-97 allows a plaintiff to introduce medical bills subject to a deduction from any award that duplicates the benefits received by plaintiff from sources other than the tortfeasor. In her second pretrial motion, plaintiff sought to have the trial judge take judicial notice that she had met the verbal threshold, based solely upon the physician's certification filed by her pursuant to N.J.S.A. 39:6A-8a.

We agree that the judge mistakenly denied plaintiff's application to introduce the medical bills based upon the procedure set forth in N.J.S.A. 2A:15-97. However, we conclude that the error was harmless. The judge correctly denied plaintiff's motion to deem that she satisfied the lawsuit threshold. Accordingly, we affirm.

On October 9, 2002, plaintiff was being transported to the airport where she was to board a flight to Texas. There were two other passengers on the shuttle. One passenger was seated in the aisle seat of the bench directly behind plaintiff and the other passenger was seated behind the driver in the front row. Plaintiff testified that she was in the front passenger side seat and was not wearing a seatbelt because her seat did not have one. Fisher, however, testified that plaintiff was seated in the second or third row.

While the bus was stopped for traffic at the intersection of Routes 130 and 32, Fisher "felt a bump in the back of the shuttle." According to defendant, he was driving two to three miles per hour when he "inch[ed] forward and hit the bumper" of the shuttle. Plaintiff testified that the bus was slammed from behind. She put one hand up to stop herself from going forward into the Plexiglas in front of her, and used the other hand to protect her glasses in the event that she fell. Her hand struck the Plexiglas partition and she felt like she "jammed something" in her shoulder and neck. She did not fall out of her seat or lose consciousness and her glasses did not fall off her face. She did not suffer any cuts, bleeding, or bruising.

Fisher testified as a defense witness. After the accident, he pulled the shuttle to the side of the road, where he exchanged information with defendant. However, defendant claimed that no information was exchanged because neither he nor Fisher observed any damage. Although Fisher wrote in his accident report that the bus suffered damage to its "rear bumper and right rear panel," he testified that he found no damage on the rear of the shuttle or the front of defendant's car and got back in the bus. Five photographs of the rear of the shuttle were introduced into evidence by defendant. They showed little or no damage.

After the accident, plaintiff continued on the bus until it reached the airport, where she boarded her flight to Texas. She stated that she felt "[d]izzy [and] anxious" during the remainder of the bus ride, and experienced soreness in her neck, shoulder, and back. Plaintiff said that she told Fisher that she had neck, shoulder, and back pain, but did not ask him to call for an ambulance.

Plaintiff remained in Texas until October 14, during which time she was "dizzy" and experienced pain in her neck, shoulders, and lower back. However, in an effort not to "ruin" her daughter's graduation, plaintiff did not seek medical treatment while in Texas. Upon returning from Texas, plaintiff contacted her attorney and then called the South Brunswick Police Department to see if a report had been filed, which it had not. Plaintiff filed a report with the South Brunswick Police Department on October 17, noting in the report that she suffered upper back, shoulder, and lower back injuries. She did not report at that time any wrist, hand, or arm injuries, testifying that she did not experience wrist or hand pain until eight weeks after the accident.

On October 15, plaintiff sought medical treatment at Hamilton Health Care (Hamilton). There, she received heat packs, underwent x-rays, and was administered chiropractic treatment. Plaintiff went to Hamilton once a week for her first three visits, and went twice per week thereafter for about seven months. During that time, she felt pain in her neck, back, shoulder, and arm. After finishing her treatment with Hamilton on May 1, 2003, she consulted with a Dr. Aita from Mercer Orthopedics, Dr. Robert Dunn, Dr. Michael Grenis, and her family doctor, Dr. Cudrup.

Plaintiff did not take any days off from work as a result of the accident. She testified that she experiences numbness in both hands, which first began about eight weeks after the accident. She testified that she sometimes experiences pain in her shoulder and neck. She described that she starts her workday with both hands on the computer. Once one of her hands goes numb, she uses the other until that hand goes numb, at which point she switches back to the hand she used first. Plaintiff testified that she is unable to pick up or bathe her dog, vacuum, ...

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