On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10073-08.
The opinion of the court was delivered by: Messano, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall*fn1 and Messano.
On December 9, 2005, plaintiff Charles Haywood was injured in a motor vehicle accident when an uninsured driver, defendant Ricky Harris, driving a car owned by defendant Louis P. Sterlin, ran a red light and collided with plaintiff's car.*fn2 Plaintiff filed a complaint for uninsured motorist (UM) benefits against his automobile insurance carrier, defendant New Jersey Manufacturers' Insurance Company (NJM), and proceeded to arbitration. NJM rejected the arbitration award, and the matter was tried before a jury.
NJM stipulated to liability. Plaintiff's insurance policy contained the limitation on lawsuit option, N.J.S.A. 39:6A-8a (the LOL). The case was tried, therefore, on three issues --whether plaintiff's claimed injury, a herniated disc at L1-L2, was proximately caused by the accident; whether it was "a permanent injury," ibid.; and damages. The jury concluded Harris's negligence was the proximate cause of plaintiff's injuries, but that he had not suffered a permanent injury. It therefore made no award to plaintiff for any "non-economic loss." See N.J.S.A. 39:6A-2i. However, the jury awarded plaintiff $75,000 "for his loss of income and/or earning capacity . . . ."
When a form order for judgment was circulated, NJM objected, contending that since plaintiff had suffered no permanent injury, he was not entitled to any award for future lost earnings. It requested that the judge "mold" the verdict to conform to the proofs at trial. The judge entered judgment in favor of plaintiff for $27,878.50, an amount that only reflected plaintiff's claim for past lost wages between the date of the accident and the trial. Plaintiff's motion for reconsideration was subsequently denied, and this appeal followed.
Plaintiff contends for a variety of reasons that the judge should not have molded the verdict and urges our reinstatement of the original jury award of $75,000. NJM contends that the evidence adduced at trial only supported an award of lost wages for the amount reflected by the judgment as entered, though it also argues that plaintiff was barred as a matter of law from recovering any future economic losses. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.
The testimony at trial revealed that on the date of the accident, plaintiff was thirty-three years old, married with two children, and employed as a union mason. Plaintiff declined medical attention at the scene, but when the pain in his back worsened, he sought treatment with Dr. Frank Zaccaria, a chiropractor. Zaccaria ordered an MRI and diagnosed plaintiff with a herniated disc. Plaintiff moved from the northern New Jersey area and relocated to Tuckerton, during which time he continued treatment with another chiropractor. In 2007, plaintiff also saw Dr. Cary Glastein, an orthopedist, who recommended epidural injections, which plaintiff declined.
Plaintiff moved north in the fall of 2008 and began seeing Zaccaria again. Zaccaria testified that he last saw plaintiff approximately three weeks prior to trial, that plaintiff still complained of pain in his lower back, and that his prognosis was "pretty guarded." Zaccaria opined that plaintiff, as a result of the accident, was permanently injured and could no longer work as a mason. Dr. Steven J. Meyerson, a radiologist who interpreted the MRI films at trial, confirmed Zaccaria's diagnosis of a disc herniation.
On April 25, 2008, plaintiff was involved in a second accident while riding his motorcycle. Plaintiff fractured his femur and required surgery; plaintiff also suffered fractures of two thoracic vertebrae. However, plaintiff contended that he did not injure his lower back in this accident and any residual pain in his lower back and incapacity as a result was solely from the 2005 accident.
Plaintiff testified that in 2005, his earnings were appreciably lower than they had been the prior two years, both of which exceeded $28,000 each. He believed this was due to a general slowdown in the economy. Plaintiff tried to work after the accident, but pain curtailed his activities. He could no longer lift heavy brick and stone, and, instead, found some work caulking windows on job sites and supervising the work of others. His net earnings in 2006 and 2007, as reflected on his W-2 forms, were $5,911.75 and $10,909.50 respectively. In 2008, a W-2 form in evidence revealed that plaintiff received more than $14,000 in wages, and plaintiff testified that he began receiving temporary Social Security disability benefits that year due to injuries from the motorcycle accident.
NJM produced Dr. Steven Robbins, an orthopedic surgeon, as its expert. He testified that the MRI revealed a disc bulge in plaintiff's lower back, but no herniation. Robbins opined that this condition was normal for someone of plaintiff's age and work history.
After summations, the judge charged the jury in accordance with Model Jury Charge (Civil) 8.11C, "Loss of Earnings" (2004). He also reviewed the verdict sheet with the jurors. After deciding that Harris's negligence was the proximate cause of "the injuries suffered by plaintiff," the jury concluded that plaintiff had not "sustained a permanent injury as a result of th[e] accident . . . ." The verdict sheet directed the jury to proceed to answer whether plaintiff had lost "income or suffer[ed] an impairment of his earning capacity as a result of the injuries he received in this accident . . . ." The jury unanimously answered "yes." When asked "[w]hat amount of money w[ould] fairly and reasonably compensate [plaintiff] for his loss of income and/or earning capacity?", the jury answered "$75,000." There was no objection to either the charge or the jury verdict sheet.
NJM objected to the form order of judgment and sought oral argument. Although it never moved for a judgment notwithstanding the verdict (j.n.o.v.) or a new trial, NJM argued that "any claim for future lost income was barred, as a matter of law, upon the jury's finding that plaintiff had not suffered a 'permanent injury' . . . ." NJM further contended that plaintiff's maximum recovery for past lost earnings in 2006 and 2007 was $27,878.50, which reflected the maximum difference between his average earnings for the three years prior to the accident, and his actual earnings for 2006 and 2007. NJM ...