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Drea v. Bowe

November 6, 2008

AMBER J. DREA, PLAINTIFF-RESPONDENT/ CROSS-RESPONDENT,
v.
MARQUES T. BOWE, SHARON A. BOWE, INDIVIDUALLY, JOINTLY, SEVERALLY, AND/OR IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.
AAA MID-ATLANTIC INSURANCE COMPANY OF NEW JERSEY, DEFENDANT/INTERVENOR-APPELLANT/ CROSS-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-8421-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 29, 2008

Before Judges Winkelstein and Chambers.

In this verbal threshold case, defendants Marques T. Bowe and Sharon A. Bowe and defendant-intervenor AAA Mid-Atlantic Insurance Company of New Jersey appeal from the jury verdict in favor of plaintiff Amber Drea. Defendants and defendant-intervenor contend that the trial court erred in allowing plaintiff's treating chiropractor to testify to a Magnetic Resonance Imaging (MRI) report he received in the course of treating plaintiff indicating that plaintiff had two bulging discs and in allowing him to testify on the issue of permanency. Defendants also maintain that the trial court erroneously entered a judgment that exceeded the limitation on damages in the "stip-cap" agreement reached by the parties before trial.

We hold that the trial court erred when it allowed the chiropractor to testify to the MRI, and to the extent the chiropractor's permanency opinion rested on the MRI, it was inadmissible. On remand, the chiropractor may testify to permanency provided a proper foundation is laid for that opinion. Further, we conclude that the "stip-cap" agreement should have been enforced. We reverse and remand for a new trial in accordance with this opinion.

I.

This lawsuit arises out of a motor vehicle accident that took place on March 26, 2003, when plaintiff's vehicle was hit in the rear by a vehicle driven by defendant Marques T. Bowe. Defendant-intervenor, plaintiff's underinsured motorist carrier, intervened in the case pursuant to Zirger v. Gen. Accident Ins. Co., 144 N.J. 327 (1996).

Prior to trial, the parties reached a "stip-cap" agreement in which defendants conceded liability in exchange for a limitation on plaintiff's recovery in damages. Plaintiff agreed to a $100,000 cap on her damages. Under the agreement, defendants would not be responsible for more than $50,000 in damages, which was the limit of their liability insurance, and defendant-intervenor could not be liable for more than $50,000 in damages, which fell within its coverage limitations. Plaintiff's recovery could not exceed $100,000 in total. Notably, no party waived the right to appeal from a damages verdict as part of this agreement nor did the parties have any discussions regarding waiver of the right to appeal. The case then went to trial on the issue of damages only.

Plaintiff's claim was governed by the "limitation on lawsuit option," also known as the verbal threshold, set forth in the Automobile Insurance Cost Reduction Act of 1998 ("AICRA"), N.J.S.A. 39:6A-8(a). A person injured in an automobile accident whose claim is governed by AICRA may not recover for non-economic loss unless the claim meets one of the six statutory categories. Ibid. One of those statutory categories is a "permanent injury," defined as an injury that occurs "when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment." Ibid. In addition, in order to pass the verbal threshold, the claim must be supported by a physician's certification that "shall be based on and refer to objective clinical evidence." Ibid. This statutory language has been interpreted as incorporating into the claim the requirement that a finding of a qualifying injury be supported by "objective credible evidence." DiProspero v. Penn, 183 N.J. 477, 495 (2005). Thus, to recover damages, plaintiff was required to prove with objective, credible evidence that she sustained a permanent injury.

At trial, plaintiff's treating chiropractor, Dr. Anthony Calzaretto, testified about plaintiff's injuries and treatment. Licensed as a chiropractor in New Jersey, Dr. Calzaretto was qualified by the court to testify as an expert in the field of chiropractic care. Over the objections of the defense, he was permitted to testify that he had reviewed plaintiff's MRI report showing bulging discs at C4-C5 and C5-C6. Plaintiff's counsel indicated that he was not asking the chiropractor to review the MRI films themselves but only to testify to the reports he relied upon. On cross-examination, when asked if he had personally reviewed the MRI films, Dr. Calzaretto could not say definitively whether or not he had reviewed the films themselves, as well as the report, although it was his policy to do so. He testified that plaintiff's loss of curvature in her lumbar and cervical spine and the two disc bulges at C4-C5 and C5-C6 constituted objective clinical findings indicating a permanent injury caused by the accident.

The jury found that plaintiff had sustained a permanent injury proximately caused by the accident and supported by objective credible medical evidence and awarded her $250,000 in damages. A judgment was entered in favor of plaintiff in that amount. Defendant-intervenor joined in defendants' motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. That motion was denied by the trial court, and this appeal followed.

On appeal, defendants and defendant-intervenor maintain that the trial court erred in allowing the chiropractor to testify to the MRI results and to testify on the issue of permanency. Defendants also maintain that the trial court failed to mold the verdict in accordance with the pretrial "stip-cap" agreement they had reached with plaintiff in which they agreed to stipulate to liability in exchange for a $50,000 limitation on his liability for damages. Plaintiff contends that at trial the defense waived its right to challenge ...


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