Wise v. Marienski

• Decision Date: 16 June 2011
• Citation: 39 A.3d 947,425 N.J.Super. 110
• Parties: Cecilia WISE, Plaintiff, v. Cynthia MARIENSKI, Dawn Celli, John Does 1–10, and ABC Corporations 1–10 (said names being fictitious), Defendants.Nina Wise, Plaintiff, v. Cynthia Marienski, ABC Corporations 1–10 (unknown corporations, bars and/or liquor establishments responsible for the incident in question) and John Does 1–10 (unknown individuals responsible for the incident in question), Defendants.
• Court: New Jersey Court of Chancery

39 A.3d 947

425 N.J.Super. 110

Cecilia WISE, Plaintiff,

v.Cynthia MARIENSKI, Dawn Celli, John Does 1–10, and ABC Corporations 1–10 (said names being fictitious), Defendants.Nina Wise, Plaintiff,

v.Cynthia Marienski, ABC Corporations 1–10 (unknown corporations, bars and/or liquor establishments responsible for the incident in question) and John Does 1–10 (unknown individuals responsible for the incident in question), Defendants.

Superior Court of New Jersey,Law Division, Union County.

Decided June 16, 2011.

Howard N. Wiener, Rahway, for plaintiff Cecilia Wise (Tobin, Koster, Reitman, Greenstein, Caruso, Wiener & Konray, attorneys).

Nicholas Scutari, for plaintiff Nina Wise.

Gregory F. McGroarty, for Defendant Cynthia Marienski (Litvak & Trifiolis, Cedar Knoll, attorneys).KENNETH J. GRISPIN, P.J.Cv.

In this personal injury matter, defendant Cynthia L. Marienski has moved for an order barring plaintiffs Cecilia Wise (“Cecilia”) and Nina Wise (“Nina”) (collectively, “plaintiffs”) from entering evidence of their outstanding medical expenses at the time of trial, pursuant to N.J.S.A. 39:6A–12. For the following reasons, this court holds that N.J.S.A. 39:6A–12 does not preclude recovery of medical expenses beyond those collectible or paid under the several “Standard” Personal Injury Protection (“PIP”) plans. Evidence pertaining to plaintiffs' medical expenses above those payable by PIP is, therefore, admissible. Accordingly, defendant's motion is denied.

The facts of this case (as opposed to the legal issues) are simple. On September 22, 2007, the parties were involved in an automobile accident, in which a vehicle driven by defendant rear-ended Cecilia's car, which Cecilia was driving at the time and in which Nina, Cecilia's sister, was riding as a passenger. Nina is not a licensed driver in the State of New Jersey, and is not a named insured on Cecilia's policy, or a resident of her household. As a result of the accident, Cecilia suffered injuries to her neck, back and both of her knees. Nina suffered injuries as well. Cecilia subsequently underwent treatment for her injuries, including surgery to repair her left knee. Cecilia's automobile insurance policy provides for PIP coverage for economic damages of up to $15,000, which has been exhausted. As a result, Cecilia has $21,820 in outstanding medical bills and Nina has $26,212.96 in outstanding medical bills. Defendant now seeks to bar from trial evidence of these outstanding bills.

DISCUSSION

Part I

In 1972, the New Jersey Legislature enacted the New Jersey Automobile Reparation Reform Act (the “No Fault Act”), L. 1972 c. 70, codified as N.J.S.A. 39:6A–1 to –18. See Cynthia M. Craig & Daniel J. Pomeroy, New Jersey Auto Insurance Law 11 (Gann 2011) (“Craig & Pomeroy 2011”). Under this legislation, “all insurance policies written for private passenger vehicles were required to provide enumerated [PIP] benefits to certain classes of persons without regard to who was at fault in causing the accident. The primary object of this reform legislation was to get needed money to injured people quickly.” Ibid.

N.J.S.A. 39:6A–12, entitled, “Inadmissibility of evidence of losses collectible under personal injury protection coverage,” and last amended by L. 2003, c. 89, § 55, states, in pertinent part:

[E]vidence of the amounts collectible or paid under a standard automobile insurance policy pursuant to [ N.J.S.A. 39:6A–4] ... to an injured person, including the amounts of any deductibles, copayments or exclusions, including exclusions pursuant to [ N.J.S.A. 39:6A–4.3], otherwise compensated is inadmissible in a civil action for recovery of damages for bodily injury by such injured person.

The court shall instruct the jury that, in arriving at a verdict as to the amount of the damages for noneconomic loss to be recovered by the injured person, the jury shall not speculate as to the amount of the medical expense benefits paid or payable by an automobile insurer under personal injury protection coverage payable under a standard automobile insurance policy pursuant to [ N.J.S.A. 39:6A–4] ....

Nothing in this section shall be construed to limit the right of recovery, against the tortfeasor, of uncompensated economic loss sustained by the injured party.

Defendant asserts that a trio of cases, Roig v. Kelsey, 135 N.J. 500, 641 A.2d 248 (1994), D'Aloia v. Georges, 372 N.J.Super. 246, 858 A.2d 16 (App.Div.2004), and Kim v. Kim, Docket No. BER–L–5471–08, 2010 WL 2220599, 2010 N.J.Super. Unpub. LEXIS 2302 (Law Div. May 24, 2010), dictates that N.J.S.A. 39:6A–12 be interpreted to preclude plaintiffs from pursuing claims for their medical expenses above and beyond those covered by Cecilia's $15,000 PIP policy.

The issue before the Roig Court was whether N.J.S.A. 39:6A–12 prohibited a claimant from recovering in tort his otherwise uncompensated deductible and twenty percent copayment under a PIP policy. 135 N.J. at 501, 641 A.2d 248. The Roig Court noted that, in the original No–Fault Act, N.J.S.A. 39:6A–12 stated as follows: “Evidence of the amounts collectible or paid pursuant to sections 4 and 10 of this act to an injured person is inadmissible in a civil action for recovery of damages for bodily injury by such injured person.” Id. at 504, 641 A.2d 248.

In 1983, the Legislature amended the No–Fault Act to provide for the selection of a $500, $1000, or $2500 medical expense deductible. Ibid.; L. 1983, c. 362.¹ Under this system, in exchange for choosing a higher deductible, an insured would benefit from paying a lower premium. Ibid. Presumably, because options existed for insureds to have deductibles covered by health insurers, this system would shift the costs of automobile insurance to those alternative insurers, thereby reducing the cost of automobile insurance overall. Id. at 505–06, 641 A.2d 248.

The 1983 amendment also added language to N.J.S.A. 39:6A–12, providing, in part:

Evidence of the amounts collectible or paid ... to an injured person, including the amounts of any deductibles or exclusions elected by the named insured ... otherwise compensated is inadmissible in a civil action for recovery of damages for bodily injury by such injured person.

....

Nothing in this section shall be construed to limit the right of recovery, against the tortfeasor, of uncompensated economic loss sustained by the injured party.

[ Id. at 506, 641 A.2d 248.]

In response to further spiraling auto insurance costs, the Legislature again amended the No–Fault Act in 1988. Id. at 506, 641 A.2d 248; L. 1988, c. 119.² This amendment “mandate[d] a $250 medical deductible and a 20% copayment for medical expenses between $250 and $5,000[,]” which would, the Legislature hoped, lower the costs of insurance premiums for all New Jersey motorists. Id. at 507–14, 641 A.2d 248. N.J.S.A. 39:6A–12 was again amended, to reflect these additions:

[E]vidence of the amounts collectible or paid pursuant to [ N.J.S.A. 39:6A–4 and N.J.S.A. 39:6A–10] ... to an injured person, including the amounts of any deductibles, copayments or exclusions ... otherwise compensated is inadmissible in a civil action for recovery of damages for bodily injury by such injured person.

The court shall instruct the jury that, in arriving at a verdict as to the amount of the damages for noneconomic loss to be recovered by the injured person, the jury shall not speculate as to the amount of the medical expense benefits paid or payable ... to the injured person.

Nothing in this section shall be construed to limit the right of recovery, against the tortfeasor, of uncompensated economic loss sustained by the injured party.

[ Id. at 507, 641 A.2d 248.]

The party seeking recovery of his mandatory deductible and twenty percent copayment in Roig argued that the third paragraph of Section 12 provided for recovery of those “uncompensated” out-of-pocket expenses from the tortfeasor. Id. at 513, 641 A.2d 248. However, in response, the Court reasoned that

all New Jersey motorists[ ] paid a lower annual insurance premium because of the mandatory PIP medical deductible and copayment. [Therefore,] [t]o allow a claim for the deductible and the copayment would be antithetical to the entire No–Fault statutory scheme. That kind of recovery could be available only if the Legislature reinstituted a fault-based system.

[ Id. at 514, 641 A.2d 248.]

The respondent further argued that because these amounts had not been “otherwise compensated,” as per the first paragraph of Section 12, they should be admissible. Id. at 514–15, 641 A.2d 248. The Court rejected this interpretation as “contrary to the clear legislative intent of the No–Fault Law [,]” Id. at 515, 641 A.2d 248, which, the Court stated, was enacted and amended with the purposes of removing the need for predetermination of fault prior to recovery, thereby eliminating minor tort claims from the judicial system and expediting relief to accident victims suffering from serious and disabling injuries, which would in turn reduce trial court backlog, as well as the cost of insurance. Id. at 502–11, 641 A.2d 248. To allow litigants to sue in tort for recovery of uncompensated deductibles and copayments would have been contrary to this purpose. The Court concluded by stating, broadly, that the Legislature never intended to leave the door open for fault-based suits when enacting the No–Fault Law. [Otherwise], courts would again feel the weight of a new generation of congestion-causing suits, and automobile-insurance premiums would again rise. If the Legislature disagrees with our interpretation of its intent, it is, of course, empowered to enact clarifying legislation.

[ Id. at 516, 641 A.2d 248.]

In 1998 the Legislature enacted, as an amendment to the previous No–Fault Act, the Automobile Insurance Cost Reduction Act (“AICRA”), L. 1998, c. 21 and c. 22, N.J.S.A. 39:6A–1.1 to 35. See Craig & Pomeroy 2011 at 87. This amendment changed the first clause of N.J.S.A. 39:6A–12 to read, in part:

... [E]vidence...