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Dever v. New Jersey Manufacturers Insurance Co.

Superior Court of New Jersey, Appellate Division

October 23, 2013

JOHN K. DEVER, Plaintiff-Respondent/ Cross-Appellant,


Argued September 11, 2013

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3027-09.

Robert M. Kaplan argued the cause for appellant/cross-respondent (Margolis Edelstein, attorneys; Mr. Kaplan and Michelle L. Hodak, on the briefs).

Lars S. Hyberg argued the cause for respondent/cross-appellant (McAllister, Hyberg, White, Cohen & Mann, attorneys; Mr. Hyberg, on the brief).

Before Judges Lihotz, Maven and Hoffman.


The parties filed cross-appeals from a jury verdict rendered in this automobile negligence action. Because liability was not disputed, trial evidence was limited to causation and damages. The jury found plaintiff John K. Dever had not suffered a permanent injury as a result of the motor vehicle collision, but awarded lost wages of $275, 000. Both sides filed post-judgment motions challenging different aspects of the verdict. The judge determined plaintiff was entitled to reimbursement for unpaid medical bills, but otherwise denied the motions.

Defendant New Jersey Manufacturers Insurance Company (NJM) argues the trial judge erred in denying its motion for a new trial or, in the alternative, remittitur, contending the amount of the damage award was not supported by the evidence. Defendant also challenges as erroneous the order reimbursing plaintiff for the amount of a claimed workers' compensation lien for medical bills. Plaintiff's cross-appeal maintains the judge erred in denying his motion for a judgment notwithstanding the verdict (JNOV), seeking to set aside the jury's permanent injury finding. Following our review, we affirm the jury verdict, but reverse the order granting reimbursement of plaintiff's previously paid medical bills.

These facts are found in the trial record. On January 3, 2000, plaintiff, an on-duty Atlantic City police officer, suffered injuries when his police vehicle was struck by a vehicle driven by Alice Turner. Turner ran a red light and collided with plaintiff's vehicle, which had entered the intersection at a speed of twenty-five miles per hour. Turner's car was badly damaged and the force of impact turned plaintiff's vehicle at a forty-five degree angle, causing damage to the driver's side front quarter panel from the wheel well to the front fender. Plaintiff was wearing his seatbelt. He sustained no cuts, abrasions, lacerations or broken bones, and was taken to a near-by emergency room to address complaints of neck and lower back pain and an ache in his right hand. No diagnostic tests were performed and he was released.

With defendant's permission, plaintiff settled his claims against Turner, whose automobile liability carrier tendered her $25, 000 policy limits. Plaintiff then filed a claim under his underinsured motorist (UIM) policy, issued by defendant. At trial, the parties stipulated liability, premised on plaintiff's agreement to cap damages within the policy's $500, 000 limits, as reduced by Turner's payment.

Trial testimony concentrated on the extent and nature of plaintiff's injuries and resultant damages. Plaintiff described his background, his service as a Marine, and the events leading to his hiring by the police force. He described his various employment duties working in the department's detective bureau, SWAT team, and vice squad.

Next, he detailed the accident, its resultant effects and his medical treatment. Police surgeon Dr. Kuponiyi first treated plaintiff, ordering a cervical MRI, which revealed an irregularity in plaintiff's cervical discs. Dr. Kuponiyi referred plaintiff to Andrew Glass, M.D, a neurosurgeon, who began treatment for what he diagnosed as a C4-5 cervical disc protrusion. At trial, plaintiff admitted his back pain had been satisfactorily resolved. However, his neck pain remained and the use of his right hand was compromised, noting he often dropped things. Plaintiff was right-handed, making his use of a weapon in that hand unreliable. Consequently, he was determined to be disabled and placed on disability retirement.

Plaintiff also described the emotional withdrawal he experienced after the accident, which he later learned was depression. He explained for years he would not socialize with or call people. He was uninterested in things, watched television for hours, and would not leave his house unless he was forced to, except to go fishing alone. He stated it might take him three days of trying to go to the grocery store. When he began psychiatric treatment, he gradually began conversing with other fisherman and slowly began to reconnect with people.

Plaintiff described his return to school, taking courses in welding and diesel mechanics. Following the required 100 hours of welding, plaintiff applied for employment as a welder. He was able to weld for four to six hours at a time. He also returned to many everyday activities. Over the years, plaintiff painted the interior of his home, continued to work on his car, and maintained his lawn. He enjoyed surf fishing for four to six hours at a time, which he did almost every day in season. He also resumed spending time with his friends.

Plaintiff was under Dr. Glass's medical care for five sessions, beginning on January 28 and ending on May 9, 2000. The jury watched the video deposition of Dr. Glass, during which he discussed his diagnosis of plaintiff's condition.[1] Dr. Glass opined the accident caused the disc between plaintiff's fourth and fifth cervical vertebrae to become displaced, resulting in pain and stiffness in his neck, right arm and hand, as well as the lower back. He referred plaintiff for nine weeks of physical therapy and pain management, which included one analgesic neck injection. Plaintiff's lower back problems were resolved; however, his neck pain and the effect on the use of his right hand persisted. Dr. Glass suggested plaintiff was not a viable surgical candidate, reporting he felt plaintiff had achieved "maximum medical improvement" for his neck pain and could obtain no additional curative gain from continuing a treatment regimen. Accordingly, Dr. Glass opined plaintiff was permanently injured and could not return to work as a police officer unless he solely worked in a "sedentary capacity."

Based on Dr. Glass's medical diagnosis and prognosis, plaintiff applied for an accidental disability retirement pension, which the New Jersey Department of Pension and Benefits (NJDOPB) awarded, effective January 1, 2001. Dr. Glass performed a final examination of plaintiff on January 15, 2004. Plaintiff continued to complain of neck and arm pain and Dr. Glass observed plaintiff's "significant loss of range of motion" persisted.

Atlantic City Police Captain Eric Dooley testified plaintiff was forced into early retirement because his injury precluded him from performing his normal duties as an officer and permanent light duty positions were not available in the department. Captain Dooley was plaintiff's best friend spoke of his personality as a "solid individual, " "well rounded, " "very outgoing, " and "dynamic." He stated plaintiff was a good police officer, who received recognition and commendations for his performance, and who absolutely enjoyed his work. Following the accident, when plaintiff was told he could no longer be a police officer, Captain Dooley saw plaintiff undergo emotional changes, "close down, " generally withdraw from social interactions, and "be[come] totally disengaged with everyone and everything."

Captain Dooley also discussed his observations of plaintiff's physical and emotional improvement over the years. Although he believed plaintiff was "not the same, " Captain Dooley knew plaintiff lifted lighter weights and regularly engaged in abdominal workouts, went fishing, painted his house, attended welding classes, rotated his tires, shared driving responsibilities on trips ...

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