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Rizzo v. New Jersey Manufacturers Insurance Co.

April 8, 2009

SUSAN RIZZO AND VINCENT RIZZO, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
NEW JERSEY MANUFACTURERS INSURANCE COMPANY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4218-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 11, 2009

Before Judges Parrillo and Messano.

Plaintiffs Susan Rizzo, and her husband Vincent, appeal from the August 25, 2008 judgment of no cause of action in favor of defendant, New Jersey Manufacturers Ins. Co. (NJM), following a jury trial, and the September 12, 2008 order that denied their motion for a new trial, or in the alternative, additur. We have considered the arguments raised in light of the record and applicable legal principles. We reverse and remand the matter for a new trial.

I.

On October 8, 2004, plaintiff's van was broadsided by a car driven by Lorraine Calascione at the intersection of East Freehold Road and Robertsville Road in Freehold Township.*fn1 The force of the impact caused plaintiff's vehicle to flip over initially onto the driver's side, smashing the window and causing plaintiff's elbow to come into contact with the roadway and the glass. The van continued to roll over onto its roof, then onto the passenger side of the vehicle, finally coming to rest in an upright position on someone's lawn.

Both plaintiff and Calascione were insured by NJM. Calascione's liability policy limit was $15,000, and plaintiff's underinsured motorist (UIM) policy limit was $300,000. On June 23, 2006, plaintiff filed suit against Calascione and NJM. After settling with Calascione for the full policy limit, plaintiff and NJM proceeded to UIM arbitration, resulting in a finding that Calascione was one-hundred percent liable for the occurrence of the accident, and awarding plaintiff $100,000 in damages. NJM rejected the arbitrator's award, and plaintiff filed a second complaint seeking a jury trial. NJM subsequently admitted Calascione's responsibility for the accident, and the matter proceeded to trial on damages only.

Plaintiff testified describing the accident and the movement of the van after it was struck. She was conscious throughout, and "was terrified," "th[inking] [she] was going to die." When the van came to a stop, plaintiff believed it "would start on fire," so she tried to get out but, because "the door was crushed," she could not open it. She was in pain, and her left arm was bleeding profusely at the elbow.

Police and other emergency personnel responded, and plaintiff was removed by stretcher in an ambulance to the hospital where she was treated by Dr. Michael Rose, a board certified general and plastic surgeon. Plaintiff's elbow wound was cleaned, debrided, and sutured at the hospital, and Rose fitted her with a "fiberglass [] splint" that immobilized her arm, which in turn was placed in a sling. Plaintiff was discharged from the hospital on the same day.

Initially, her wound required a change of dressing and application of anti-bacterial cream twice per day. Her husband assisted her with this because she could not do it herself. It took two to three weeks before the sutures sufficiently healed, and plaintiff was referred to an orthopedist, Dr. Charles Rizzo. Rizzo discovered through x-rays that a shard of glass remained in plaintiff's elbow, and, as a result, she was scheduled for further surgery at the hospital on November 22, 2004. After this procedure, plaintiff's arm remained in a sling, and, although she returned to work, she needed assistance from a co-worker to remove the bandage and clean the wound. At the time of the accident, plaintiff worked part-time at a Wegman's supermarket on behalf of a magazine distributor, Harrisburg News Company, approximately twenty-seven hours per week, and she was on her way to work when the accident occurred.

Plaintiff underwent other surgical scar revisions in 2005 and 2006, each involving the administration of local anesthesia, the surgical removal of debris from the wound site, cleaning, debriding, and re-suturing the area. Although her scar looked much better at the time of trial, plaintiff remained "uncomfortable" with its appearance. She still experienced pain whenever she "roll[ed] onto the arm" while sleeping, had to rest her arm on a pillow when she did needlepoint, and could no longer do yoga. If she hit her elbow against any surface, she experienced "excruciating[] pain[][.]"

On cross-examination, plaintiff acknowledged that except for two visits to Rizzo, and the treatments she received from Rose, she had not seen any other doctors as a result of the accident. She took non-prescription Ibuprofen for pain on a daily basis, but did not take any prescription medication for her injuries. She lost $966 in wages after receipt of disability benefits.*fn2

Plaintiff's husband testified regarding the events of the day of the accident. For seven weeks thereafter, he slept on the bedroom floor because he did not want to bump into his wife's wound. He also assisted with more of the household chores than he had before the accident, but, with the exception of "heavy lifting," his wife had resumed most of those activities. Her personality ...


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