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Lepera v. Chagnon

February 25, 2010

ALBERT L. LEPERA, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
v.
KIRK M. CHAGNON, HACKENSACK UNIVERSITY MEDICAL CENTER, DEFENDANTS-RESPONDENTS.
BERGEN RISK MANAGERS AS SUBROGEE FOR ALBERT LEPERA, PLAINTIFF-RESPONDENT/CROSS-APPELLANT,
v.
KIRK M. CHAGNON, DEFENDANT-RESPONDENT.
KIRK M. CHAGNON, PLAINTIFF,
v.
BOROUGH OF PARAMUS, AND ALBERT L. LEPERA, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket Nos. L-5955-06, L-6318-06, and L-6405-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 1, 2010

Before Judges Rodríguez and Yannotti.

Albert L. Lepera (Lepera) appeals from an order entered by the trial court on January 5, 2009, which required that he pay Bergen Risk Managers (Bergen Risk) $58,718.91 to satisfy a workers' compensation lien on the proceeds of his personal injury action against Kirk H. Chagnon (Chagnon) and Hackensack University Medical Center (HUMC). Lepera argues that the court did not have jurisdiction to enter the order and, if it did, erred by ordering him to pay more than $41,134.20. Bergen Risk cross-appeals from the order and argues that the court erred by reducing the amount of its claim. For the reasons that follow, we reject these contentions and affirm.

The facts are relatively straightforward. Lepera was a employed by the Borough of Paramus (Borough) as a police officer. On August 29, 2004, Lepera was riding a police motorcycle and escorting other motorcycles in a charity fundraising event sponsored by HUMC. Lepera's motorcycle collided with a motorcycle being driven by Chagnon on the Palisades Interstate Parkway in Alpine, New Jersey. Lepera sustained serious injuries in the accident and filed a claim with the Borough seeking workers' compensation benefits. The Borough is self insured and Bergen Risk administers the Borough's compensation claims.

On August 14, 2006, Lepera filed a civil action against Chagnon and HUMC seeking damages for the personal injuries he sustained in the accident. On August 24, 2006, Bergen Risk filed an action against Chagnon seeking damages on Lepera's behalf, as subrogee, for the purpose of obtaining reimbursement of the workers' compensation benefits that the Borough paid to Lepera. In addition, on August 28, 2006, Chagnon filed an action against Lepera, the Borough and Childrens' Hospital of HUMC seeking damages for the injuries he sustained in the accident. Thereafter, the trial court consolidated the three cases.

By letter dated January 17, 2008, Bergen Risk's attorney, John L. Schettino (Schettino) informed Lepera's attorney that Lepera had been paid $62,665.30 in medical benefits and $33,892.93 in temporary disability payments from August 9, 2004 through August 29, 2005, for a total of $96,558.23. In the letter, Schettino advised Lepera's attorney that Bergen Risk was seeking full payment of its lien "through any settlement of this matter."

The three cases were submitted to arbitration, which took place on May 8, 2008. The arbitrators filed a report, in which they found the following percentages of responsibility for the accident: Chagnon, 30%; HUMC, 40%; and Lepera, 30%. The arbitrators awarded Lepera gross damages of $455,000, less lost wages totaling $255,961 and $41,134.20 to satisfy the workers' compensation lien. Schettino signed the report, as counsel for Bergen Risk. On May 8, 2008, Lepera and Chagnon rejected the award and filed a demand for a trial de novo, pursuant to Rule 4:21A-6(c).

The trial court conducted a settlement conference on July 16, 2008. Schettino asserts that, at the conference, he informed the court that Bergen Risk would not compromise its lien. Lepera, Chagnon and HUMC agreed to settle the cases. It was agreed that Lepera would receive a gross amount of $382,500, with $41,134.20 to be set aside for payment of the workers' compensation lien. However, the terms of the settlement were not placed on the record, nor were they reduced to writing.

On September 5, 2008, Lepera's attorney contacted Schettino to confirm the amount of the workers' compensation lien. By letter dated September 11, 2008, Schettino informed Lepera's attorney that the amount of the lien was $63,729.40. Schettino said that this amount represented two thirds of the total medical bills and the temporary disability payments, minus $750 for third-party litigation expenses.

On September 24, 2008, a stipulation was filed with the court, dismissing Lepera's action with prejudice and without costs. The stipulation was signed by the attorneys for Lepera, Chagnon and HUMC. The settlement monies were released and Chagnon's attorney held $41,134.20 in escrow to pay Lepera's workers' compensation lien.

By letter of October 13, 2008, Schettino again informed Lepera's attorney that the lien totaled $63,729.40 and said that Bergen Risk would not compromise the lien. When Lepera refused to pay more than $43,134.20, Bergen Risk filed a motion in the trial court to compel Lepera to pay the full amount of its lien.

The trial court considered the motion on December 5, 2008, and requested the submission of additional information regarding Lepera's medical expenses. On January 5, 2009, the court filed a written opinion in which it concluded that Bergen Risk ...


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