EARL J. SCOTT v. ALLSTATE NEW JERSEY INSURANCE COMPANY

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0027-07T20027-07T2

EARL J. SCOTT,

Plaintiff-Appellant,

v.

ALLSTATE NEW JERSEY

INSURANCE COMPANY,

Defendant-Respondent.

__________________________________

 

Submitted April 30, 2008 - Decided

Before Judges Cuff and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3850-06.

Marmero & Mammano, P.C., attorneys for appellant (Edward H. Mulvihill, on the brief).

Green, Lundgren & Ryan, P.C., attorneys for respondent (Francis X. Ryan and Alexa J. Nasta, on the brief).

PER CURIAM

Following a damages only trial in an auto negligence action, the jury rendered a verdict awarding lost wages, but determined plaintiff suffered no compensable nonecomonic damages. Plaintiff appeals from that verdict, arguing "it was plain error for the court to rule that the defendant was to be identified . . . as the underlying tortfeasor rather than Allstate New Jersey Insurance Company." We disagree and affirm.

On May 23, 2004, plaintiff Earl Scott was involved in a traffic incident. A vehicle driven by John Bridges struck plaintiff's vehicle from behind, while plaintiff was stopped at a traffic light. The limits of Bridge's auto liability policy was $25,000. His insurance company offered to settle for $24,000. Defendant, Allstate New Jersey Insurance Company (Allstate) authorized plaintiff to accept the offer of settlement.

Plaintiff filed an underinsured motorist claim and demand with Allstate asserting he suffered injuries resulting from the accident including lumbar and cervical sprain, a herniated disc at L5-S1 with radiculopathy, and a herniated cervical disc with radiculitis. Allstate declined to participate in arbitration. Thereafter, plaintiff initiated this Law Division matter.

Prior to jury selection, the trial judge denied plaintiff's request to identify defendant as either "defendant" or "Allstate." Guided by this court's opinion in Wenz v. Allstate Ins. Co., 316 N.J. Super. 570 (App. Div. 1998), Judge Millenky determined:

I find that the better approach, one of the approaches suggested by Wentz [, supra, 316 N.J. Super. at 579] is to have this matter proceed in the name of John Bridges, the tortfeasor. To . . . the extent that the plaintiff is concerned that it's a fiction, it is not wholly a complete fiction. It is something that represents the underlying genesis of this case, a tort that was committed by John Bridges. To the extent that Allstate is in this case under the underinsured provisions, they are in this case because of the tortfeasor's actions, and I see nothing inherently unreasonable in having this case proceed in Mr. Bridge's name. . . . [T]he jury will understand that their focus is simply on the issue of damages. That is what we're trying to accomplish here. I find that . . . constitutes the fair, reasonable, equitable and non-prejudicial approach to this matter.

The trial proceeded with the videotaped testimony of the physician experts and plaintiff. The verdict rendered compensated plaintiff for lost wages of $8,925 and concluded plaintiff suffered no compensable permanent injury proximately caused by the accident.

We discern no abuse of discretion in Judge Millenky's decision declining plaintiff's request to reference the defendant as "Allstate" in favor of the named tortfeasor. See Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div. 1996) (on appellate review, we do not substitute our judgment for that of the trial court, we determine only whether the trial judge pursued a manifestly unjust course).

"[I]n an uninsured or underinsured motorist claim, the insurance company is a contractual substitute for the tortfeasor." Bardis v. First Trenton Ins. Co., 397 N.J. Super. 138, 150 (App. Div. 2007) (citing Midland Ins. Co. v. Colatrella, 102 N.J. 612, 617 (1986)), certif. granted, 194 N.J. 444 (2008). "'[I]n effect, an [underinsured] motorist provision is a contractual substitute for a tort action against an [underinsured] motorist.'" Id. at 152 (quoting Midland, supra, 102 N.J. at 617).

Although the trial court may have informed the jury that the action was a suit against plaintiff's own insurance carrier and "instructed that that fact has no relevancy on the issue of damages," nothing mandated that it do so. Wenz, supra, 316 N.J. Super. at 580.

Affirmed.

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A-0027-07T2

July 9, 2008