Thompson v. Liberty Mut. Ins. Co.

• Decision Date: 01 July 2020
• Docket Number: DOCKET NO. A-2810-18T3
• Parties: JENNIFER THOMPSON and JOHN THOMPSON, Plaintiffs-Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant, and ALLSTATE INSURANCE COMPANY, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

JENNIFER THOMPSON and JOHN THOMPSON, Plaintiffs-Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant,and ALLSTATE INSURANCE COMPANY, Defendant-Respondent.

DOCKET NO. A-2810-18T3

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted March 31, 2020

July 1, 2020

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Hoffman and Firko.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1727-16.

Maggs, McDermott & Dicicco, LLC, attorneys for appellant (James A. Maggs, of counsel; Victoria J. Adornetto, on the briefs).

Hoagland Longo Moran Dunst & Doukas, attorneys for respondent (Richard J. Mirra, on the brief).

PER CURIAM

On December 14, 2012, an Acura MDX driven by Jonathan Judson collided with a Mercury Grand Marquis driven by plaintiffs' daughter. As a result of the collision, plaintiff¹ - a belted front-seat passenger in her daughter's vehicle - sustained injury. After settling with Judson for the policy limits of the insurance covering the MDX, plaintiffs presented a claim for underinsured motorist (UIM) compensation to their auto insurance carrier, Allstate Insurance Company (Allstate). Pursuant to the Automobile Insurance Cost Reduction Act,² Allstate's policy contained a provision requiring plaintiff to show she suffered a permanent³ injury in order to recover noneconomic damages.

Unable to resolve their UIM claim, plaintiffs filed suit against Allstate.⁴ After Allstate stipulated liability, the matter proceeded to trial before a jury on the issues of proximate cause and damages. On January 17, 2019, at the conclusion of a three-day trial, the jury returned a unanimous verdict, finding plaintiffs did not prove that plaintiff sustained a permanent injury that was proximately caused by the December 14, 2012 accident. Based on the jury's verdict, the trial judge entered a "no cause" order of dismissal. This appeal followed, with plaintiffs contending that erroneous evidentiary rulings resulted in harmful error. We agree, and therefore reverse the dismissal order, reinstate plaintiffs' complaint, and remand for a new trial.

I.

We derive the following facts from the trial record. We first address the happening of the accident and then plaintiff's injuries.

A. The Accident.

The accident occurred when the Grand Marquis driven by plaintiffs' daughter stopped for a red light in the westbound lane of Route 70, at itsintersection with Lake Ridge Boulevard, in Toms River. According to plaintiff, after her daughter brought the vehicle to a complete stop for the red light, the MDX struck them from behind; as a result of the impact, the Grand Marquis "jolted forward."

Plaintiff recounted that after Judson "exchanged words" with her daughter, he "[got] in his car, [went] around us[,] and [left] the scene." Plaintiff and her daughter then pulled off into a nearby parking lot and called the police.

According to Judson, the Grand Marquis "made a complete stop at a yellow light and [he] didn't have time to react." He tried to swerve around it, but "end[ed] up clipping her bumper just enough where it tapped her car . . . ." Judson estimated his speed at the point of impact at "[n]o more than ten miles an hour, no more than ten."⁵ Judson testified that, after the collision, he and plaintiff's daughter got out of their vehicles and exchanged words. He claimed he provided his name to plaintiff's daughter but lost sight of her car after it pulled away. Instead of searching for her car, Judson continued to his destination.

Patrolman Sean Smith of the Toms River Police Department responded to the scene, where he spoke with plaintiff and her daughter. He recorded hisobservations in a written police report, noting, "Rear end damage was observed to [the Grand Marquis]. No injuries were reported by the driver or passenger . . . ." Patrolman Smith offered to call an ambulance for plaintiff, but she declined.

Provided with the license plate number of the MDX, the next day Patrolman Smith proceeded to an address in Lakewood, where he found the Acura involved in the accident. He observed "[m]inor damage . . . to the front of the vehicle." He testified that "minor damage" usually indicates "cosmetic damage" or "non-disabling" damage.

Patrolman Smith spoke to the owner of the MDX, who told him that Judson drove the Acura the day before. After phoning Judson and hearing his version of events, Patrolman Smith issued traffic citations charging him with leaving the scene of an accident, N.J.S.A. 39:4-129(b), and careless driving, N.J.S.A. 39:4-97.

Plaintiff's husband testified that his daughter called him and informed him of the accident. He came to the scene and drove plaintiff home, with their daughter following in her car. Shortly after arriving home, plaintiff's husband drove her to the Ocean Medical Center emergency room.

After answering questions about his wife's injuries, plaintiff's husband testified that he took the Grand Marquis to a body shop and personally monitored the repairs. At that point, Allstate's attorney asked to be heard at sidebar, where the following exchange occurred:

[ALLSTATE'S ATTORNEY]: I'm not quite sure where this is going. The vehicle was repaired by . . . Atlantic Auto Body. There is no witness named from Atlantic Auto Body that's coming here. I don't know if [plaintiff's attorney] intends to get into with this witness what repairs were done but there needs to be some type of expert to say, here is what repairs were done related to any damage cause by this accident. This witness can testify what his observations are, but he's not an expert witness.

[PLAINTIFFS' ATTORNEY]: He can talk about his observations of the car and the damage he observed while at the body shop.

[ALLSTATE'S ATTORNEY]: No he can't.

. . . .

[PLAINTIFFS' ATTORNEY]: I don't have to call [an] expert. [Plaintiff's husband] went to the site, he saw the bumper removed, he saw the undercarriage damage, he saw the damage to the frame . . . . They were repairing the frame, they repaired the trunk. If [Allstate is] going to put in pictures of just the bumper, then it's highly prejudicial to leave out the fact that there is damage completely behind [the bumper] -

[THE COURT]: But you need an expert.

. . . .

[PLAINTIFFS' ATTORNEY]: He can discuss his personal observations.

[THE COURT]: But it's too speculative as to what caused it. He's saying, they opened up the bumper and I saw this. How does he know what caused it?

. . . .

[PLAINTIFFS' ATTORNEY]: . . . . [Allstate] wants to put in pictures of the bumper and say it was a tap and minimal damage. It's highly prejudicial if you [keep] out the rest of the - the remainder of the pictures that show that that was not the extent [of the damage].

. . . .

[THE COURT]: . . . . No. [He] can't testify. He's not an expert to testify to that and you had ample opportunity . . . to get an expert for that. It would have been so easy for you to get an expert for that. I'm not going to do this, no way. In the 12th hour [you] put him on to say they took off the bumper and I saw this cracked. It's too speculative. Sorry.

After the sidebar ended, the judge then announced, "I'm sustaining the objection." He did not provide the jury with any explanation or instruction regarding his ruling.

Based upon the court's ruling, plaintiffs' attorney did not question plaintiff's husband any further about the observations he made when the bumper was removed from the Grand Marquis, nor did she attempt to have him identifyphotos he took during the process. Consequently, the jury did not hear the observations made by plaintiff's husband⁶ at the body shop nor did they get to view photographs of the damage behind the rear bumper.

After plaintiffs rested, Allstate called Judson as a witness and he provided the previously described testimony that he "tapped" plaintiffs' car and that the impact and damage were minor. Over objection,⁷ the trial judge allowed Judsonto authenticate multiple photographs of the Grand Marquis with the rear bumper still intact and testify that he only caused a "scratch" to the right side of the vehicle's bumper. While the photographs apparently also showed damage to the left rear brake light and misalignment of the trunk, Judson testified that this other damage "had to [have] been [pre-existing], unless I hit the car at [forty] miles an hour."

B. Plaintiff's Injuries.

At the emergency room, plaintiff presented with complaints involving her neck, back and right wrist. According to plaintiff, "They took x-rays of my right wrist. . . . They gave me a brace and a sling. They also took x-rays of my neck, as I told them I was in a prior accident and had hardware. They wanted to make sure the hardware was not affected . . . ." Plaintiff was released with a recommendation for follow-up care.

Six days later, plaintiff went for follow-up care with Dr. Hoan-Vu Nguyen, M.D.,⁸ a board certified orthopedic surgeon with a sub-specialty in spinal surgery. According to Dr. Nguyen, plaintiff reported complaints relating to her "neck, her right wrist, her upper back and her lower back." Initially, he prescribed conservative treatment in the form of physical therapy and a wrist splint. When plaintiff's symptoms persisted, Dr. Nguyen sent her for an MRI of her lumbar spine in April 2013, approximately four months after the accident. He read the MRI as showing "a [disc] herniation at L5-S1 . . . a central herniation with associated annular tear." Dr. Nguyen also sent plaintiff to another physician in his practice, Dr. Meyers, who performed epidural injections, facet injections, and radiofrequency ablation at L4-L5 and L5-S1.

Dr. Nguyen sent plaintiff for a second MRI of her lumbar spine in September 2014. He interpreted the MRI as showing "more compression on the nerve...