Nortesano v. Torres-Romero, No. A-0521-05T3 (N.J. Super. 12/4/2006)
| Decision Date | 04 December 2006 |
| Docket Number | No. A-0521-05T3,A-0521-05T3 |
| Parties | GERARD NORTESANO, Plaintiff-Appellant, v. DAVID TORRES-ROMERO, Defendant-Respondent. |
| Court | New Jersey Superior Court |
On appeal from the Superior Court, Law Division, Middlesex County, MID-L-6797-03.
Before Judges Lefelt and Parrillo.
Joseph G. Hughes argued the cause for appellant (Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, attorneys; Mr. Hughes, of counsel; Mr. Hughes and Rosalind Westlake, on the brief).
Frank Cofone, Jr. argued the cause for respondent (D'Amico & Cofone, attorneys; Mr. Cofone, on the brief).
Plaintiff Gerard Nortesano appeals from a judgment of no-cause of action in his personal injury automobile negligence lawsuit against defendant David Torres-Romero. He ascribes error to the judge's decision to allow the verbal threshold defense. We affirm.
The facts may be briefly stated. At the time of the accident on August 6, 2002, plaintiff was eighteen years old and operating a vehicle owned by his father, with whom he resided, and insured by Allstate under a policy which contained the limitation on lawsuit. The accident occurred on Hadley Center Drive in South Plainfield when defendant pulled out of a bank parking lot striking the vehicle driven by plaintiff who was on his way to work at a nearby supermarket. At the time, plaintiff did not own a motor vehicle nor did he maintain liability insurance.
Plaintiff was taken to the emergency room and was later treated for injuries to his neck and right wrist. All medical expenses for treatment of these injuries were paid by his employer's workers' compensation carrier. Plaintiff then filed suit against defendant in the Law Division seeking non-economic damages arising from the automobile accident. Defendant answered and moved for summary judgment based on plaintiff's alleged failure to vault the verbal threshold of N.J.S.A. 39:6A-8. The motion judge denied the relief, finding the verbal threshold not applicable. When the matter was assigned for trial to a different judge nine months later, defense counsel renewed the motion, but the judge declined to reconsider the original decision, finding it to be "law of the case." Due to the unavailability of a defense expert, however, the matter was briefly adjourned and rescheduled before yet another judge who granted defendant's second request for reconsideration. Relying on the original motion briefs and holding the "law of the case" doctrine not applicable to a "clear error in the early decision," Judge Happas allowed the verbal threshold defense. Although the ruling was made on the first day of trial, Judge Happas found no prejudice to plaintiff because the case was prepared as a verbal threshold case and could be adjourned at any time upon plaintiff's request. No such request was ever made.
Ultimately, the jury attributed fifty-percent liability to each party but, more significant for present purposes, also found that plaintiff had not suffered significant scarring or disfigurement, or a permanent injury other than scarring or disfigurement, and therefore did not satisfy the verbal threshold. Consequently, a judgment of "no cause of action" was entered and this appeal follows.
Plaintiff contends the trial judge erred in subjecting him to the verbal threshold defense and in failing to apply the "law of the case" doctrine. We disagree.
At issue is whether an insured's resident child who recovered workers' compensation benefits for injuries sustained while operating an insured vehicle is otherwise entitled to PIP coverage within the meaning of our no-fault law, N.J.S.A. 39:6A-1 to -35, thereby subjecting him to the policy's verbal threshold option. We answer the question in the affirmative.
In New Jersey, every owner or registered owner of an automobile registered or principally garaged in New Jersey must maintain either a standard or basic automobile liability insurance policy with certain minimum limits of coverage insuring against bodily injury, death, or property damage sustained by any person "arising out of the ownership, maintenance, operation or use of an automobile." N.J.S.A. 39:6A-3, -3.1, and -4; N.J.S.A. 39:6B-1. A standard insurance policy also must provide PIP coverage for persons sustaining bodily injury as a result of an automobile accident or caused by an automobile. N.J.S.A. 39:6A-1, -4.
Our no-fault law exempts holders of PIP policies, as required by N.J.S.A. 39:6A-4, from tort liability for non-economic harm unless the verbal threshold is met. N.J.S.A. 39:6A-8. Thus, section 8 provides in pertinent part:
Every owner, registrant, operator or occupant of an automobile to which . . . personal injury protection coverage . . . applies, and every person or organization legally responsible for his acts or omissions, is hereby exempted from tort liability for non-economic loss to a person who is subject to this subsection and who is either a person who is required to maintain personal injury protection coverage . . . or is a person who has a right to receive benefits under [personal injury protection coverage], as a result of bodily injury, arising out of the ownership, operation, maintenance or use of such automobile in this State, unless that person has sustained a bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
[N.J.S.A. 39:6A-8.]
Together N.J.S.A. 39:6A-4 and N.J.S.A. 39:6A-8 assure prompt payment of medical costs to an injured party, in exchange for the foreclosure of tort liability for non-economic injuries that do not meet the threshold. Beaugard v. Johnson, 281 N.J. Super. 162, 170 (App. Div. 1995) .
To determine whether the verbal threshold of N.J.S.A. 39:6A-8 is applicable, we employ a two-prong analysis. Beaugard, supra, 281 N.J. Super. at 167-68. First, the status of the defendant-tortfeasor is examined. Id. at 167. For purposes here relevant, the exemption applies to "every owner, registrant, operator or occupant of an automobile" who, under N.J.S.A. 39:6A-4, is entitled to receive no-fault PIP benefits. Id. at 167. Here defendant is both the owner of an automobile and entitled to receive PIP benefits.
Second, the "characteristics" of the plaintiff are examined. Id. at 168. The plaintiff must be a person who is: (a) "subject to" N.J.S.A. 39:6A-8; and is either: (b)(i) required to maintain PIP coverage under N.J.S.A. 39:6A-4, or (ii) has a right to receive PIP benefits under N.J.S.A. 39:6A-4. Ibid.
As to the former, a plaintiff is "subject to" N.J.S.A. 39:6A-8 if he or she is a "named insured" or an "immediate family member residing in the named insured's household." Ibid. The term "immediate family member" includes "the spouse of the named insured and any child of the named insured or spouse residing in the named insured's household, who is not a named insured under another automobile insurance policy." N.J.S.A. 39:6A-8.1a.1
Under part (b)(i), a person is "required to maintain [PIP] coverage" if that person is an "owner or registered owner of an automobile registered or principally garaged" in New Jersey. N.J.S.A. 39:6A-3; Beaugard, supra, 281 N.J. Super. at 168. Under (b)(ii), a person has a "right to receive [PIP] benefits" if that person is a "named insured [or] member[] of his family residing in his household who sustain[ed] bodily injury," arising out of the ownership, operation, maintenance or use of such automobile in this State. N.J.S.A. 39:6A-4. See also Beaugard, supra, 281 N.J. Super. at 168.
Plaintiff argues that because of the availability of workers' compensation benefits, he was not entitled to PIP coverage under (b)(ii) and therefore is not subject to the verbal threshold. Plaintiff is mistaken. We think it plain that the availability or acceptance of workers' compensation funds does not foreclose application of the verbal threshold. N.J. Mfrs. Ins. Co. v. Hardy, 178 N.J. 327, 339 (2004) (); Cont. Ins. Co. v. McClelland, 288 N.J. Super. 185, 188-91 (App. Div. 1996) (); Olivero v. N.J. Mfrs. Ins. Co., 199 N.J. Super. 191, 200-01 (App. Div. 1985) (); see also N.J.S.A. 39:6A-4b to -4e.
Rather, under the "collateral source" provision of our no-fault law, the availability of workers' compensation only forecloses the injured party from collecting for the same injuries from his or her PIP provider. N.J.S.A. 39:6A-6 (). See also Wagner v. Transamerica Ins. Co., 167 N.J. Super. 25, 33 (App. Div.) (), certif. denied, 81 N.J. 60 (1979); Olivero v. N.J. Mfrs. Ins. Co., 227 N.J. Super. 367, 381 (App. Div. 1988) (...
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