On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9276-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Newman.
In this chiropractic malpractice action, the jury returned a verdict compensating plaintiff Joseph Saitta with $235,000 for past lost wages, $0 for future lost wages, and $200,000 for pain and suffering. The jury apportioned fifty-eight percent of total liability to defendant Dr. Theodore Hiller and attributed the remaining forty-two percent to plaintiff's pre-existing condition. It found defendant Dr. Art Heinrich not liable and did not award damages to Patricia Saitta.
Defendant Hiller (references to defendant are to Hiller only) moved to mold the verdict or for remittitur, seeking a reduction of the jury award for past lost wages pursuant to the collateral-source statute, N.J.S.A. 2A:15-97, to reflect plaintiff's receipt of Social Security disability benefits and union pension benefits during the period for which he was compensated by the damages award.*fn1 The trial judge determined that a deduction for plaintiff's pension benefits would be inappropriate, but allowed a deduction for disability benefits less an amount reflecting Social Security contributions that plaintiff would have made during the relevant period and the taxes he paid on those benefits.
Defendant appeals from the court's order that plaintiff's pension benefits should not be deducted, while plaintiff cross-appeals to challenge the court's method of calculation of the deduction for social security disability benefits. We reverse the trial court's order with respect to its resolution of the pension issue and remand for further consideration in light of document production and testimony, if necessary. We affirm in part and reverse and remand in part with respect to the method of calculation of the deduction for social security disability benefits.
Our collateral-source statute, N.J.S.A. 2A:15-97, provides in relevant part:
In any civil action brought for personal injury or death, . . . if a plaintiff receives or is entitled to receive benefits for the injuries allegedly incurred from any other source other than a joint tortfeasor, the benefits, other than workers' compensation benefits or the proceeds from a life insurance policy, shall be disclosed to the court and the amount thereof which duplicates any benefit contained in the award shall be deducted from any award recovered by the plaintiff . . . .
The statute abrogated the common-law collateral-source rule, which allowed a tort victim to recover from a defendant notwithstanding the victim's collection of collateral benefits in order to "deny a wrongdoer the benefit of any rights that the victim might have against other entities based on contract, employment, or some other relation." Kiss v. Jacob, 138 N.J. 278, 281 (1994) (citing Patusco v. Prince Macaroni, Inc., 50 N.J. 365, 368 (1967)); see also Weber v. Morris & Essex Rr. Co., 36 N.J.L. 213, 215 (Sup. Ct. 1873) (explaining that, under the common-law rule, "[a] person committing a tort cannot set up in mitigation of damages that somebody else, with whom he had no connection, has either in whole or in part indemnified the party injured"). In disallowing double recovery in this respect, the statute sought "to protect and relieve the burden placed on insurance companies when a plaintiff's benefits are cumulative." Thomas v. Toys "R" Us, Inc., 282 N.J. Super. 569, 584 (App. Div. 1995) (citing Kiss v. Jacob, 268 N.J. Super. 235, 248 (App. Div. 1993), rev'd on other grounds, 138 N.J. 278 (1994)).
The collateral benefits contemplated by the statute are the same as those contemplated by the common-law rule it replaced, "includ[ing] those from life- or health-insurance policies, from employment contracts, from statutes such as worker's compensation acts and the Federal Employers' Liability Act, from gratuities, from social legislation such as social security and welfare, and from pensions under special retirement acts." Kiss, supra, 138 N.J. at 282 (citing Restatement (Second) of Torts § 920A cmt. c (1979)); see also Parker v. Esposito, 291 N.J. Super. 560, 565 (App. Div. 1996); Thomas, supra, 282 N.J. Super. at 584.
Defendant argues that plaintiff's union pension benefits must be counted as a collateral benefit in that plaintiff received the benefits in lieu of salary during the period for which he recovered damages. Plaintiff contends instead that, unlike a disability insurance policy and like an individual retirement account (IRA), the pension benefits were similar to an investment to which plaintiff regularly contributed and the receipt of which was not designed to compensate him specifically for his loss from disability, as was the damages award. The trial court determined that only "specific pensions allocated to lost income" are covered under the statute and that whether the statute would apply to plaintiff's pension was speculative.
In Kiss v. Jacob, supra, the Court referred specifically to "pensions under special retirement acts" when enumerating the types of benefits to which the statute would apply, but did not purport to enumerate an exclusive list of those collateral benefits covered by the statute. See 138 N.J. at 282 (stating only that the benefits contemplated by the statute merely "include[d]" those listed). The Court summarized its list according to that set forth in the Restatement, which additionally includes employment benefits, including those "arising out of the employment contract or a union contract." Restatement (Second) of Torts § 920A cmt. c(2). In general, whether any particular benefit is covered by the statute depends on the extent to which it compensates for "the injuries allegedly incurred" and genuinely duplicates a damages award. See N.J.S.A. 2A:15-97. Plaintiff's pension qualifies as a ...