SUSAN RIZZO v. NEW JERSEY MANUFACTURERS INSURANCE COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0437-08T20437-08T2

SUSAN RIZZO and VINCENT

RIZZO, her husband,

Plaintiffs-Appellants,

v.

NEW JERSEY MANUFACTURERS

INSURANCE COMPANY,

Defendant-Respondent.

__________________________________________________________

 

Argued March 11, 2009 - Decided

Before Judges Parrillo and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4218-07.

David T. Wheaton argued the cause for appellants (Levinson Axelrod, P.A., attorneys; Mr. Wheaton, on the brief).

David J. Leone argued the cause for respondent (Carton Law Firm, L.L.C., attorneys; James D. Carton, IV, on the brief).

PER CURIAM

Plaintiffs Susan Rizzo, and her husband Vincent, appeal from the August 25, 2008 judgment of no cause of action in favor of defendant, New Jersey Manufacturers Ins. Co. (NJM), following a jury trial, and the September 12, 2008 order that denied their motion for a new trial, or in the alternative, additur. We have considered the arguments raised in light of the record and applicable legal principles. We reverse and remand the matter for a new trial.

I.

On October 8, 2004, plaintiff's van was broadsided by a car driven by Lorraine Calascione at the intersection of East Freehold Road and Robertsville Road in Freehold Township. The force of the impact caused plaintiff's vehicle to flip over initially onto the driver's side, smashing the window and causing plaintiff's elbow to come into contact with the roadway and the glass. The van continued to roll over onto its roof, then onto the passenger side of the vehicle, finally coming to rest in an upright position on someone's lawn.

Both plaintiff and Calascione were insured by NJM. Calascione's liability policy limit was $15,000, and plaintiff's underinsured motorist (UIM) policy limit was $300,000. On June 23, 2006, plaintiff filed suit against Calascione and NJM. After settling with Calascione for the full policy limit, plaintiff and NJM proceeded to UIM arbitration, resulting in a finding that Calascione was one-hundred percent liable for the occurrence of the accident, and awarding plaintiff $100,000 in damages. NJM rejected the arbitrator's award, and plaintiff filed a second complaint seeking a jury trial. NJM subsequently admitted Calascione's responsibility for the accident, and the matter proceeded to trial on damages only.

Plaintiff testified describing the accident and the movement of the van after it was struck. She was conscious throughout, and "was terrified," "th[inking] [she] was going to die." When the van came to a stop, plaintiff believed it "would start on fire," so she tried to get out but, because "the door was crushed," she could not open it. She was in pain, and her left arm was bleeding profusely at the elbow.

Police and other emergency personnel responded, and plaintiff was removed by stretcher in an ambulance to the hospital where she was treated by Dr. Michael Rose, a board certified general and plastic surgeon. Plaintiff's elbow wound was cleaned, debrided, and sutured at the hospital, and Rose fitted her with a "fiberglass [] splint" that immobilized her arm, which in turn was placed in a sling. Plaintiff was discharged from the hospital on the same day.

Initially, her wound required a change of dressing and application of anti-bacterial cream twice per day. Her husband assisted her with this because she could not do it herself. It took two to three weeks before the sutures sufficiently healed, and plaintiff was referred to an orthopedist, Dr. Charles Rizzo. Rizzo discovered through x-rays that a shard of glass remained in plaintiff's elbow, and, as a result, she was scheduled for further surgery at the hospital on November 22, 2004. After this procedure, plaintiff's arm remained in a sling, and, although she returned to work, she needed assistance from a co-worker to remove the bandage and clean the wound. At the time of the accident, plaintiff worked part-time at a Wegman's supermarket on behalf of a magazine distributor, Harrisburg News Company, approximately twenty-seven hours per week, and she was on her way to work when the accident occurred.

Plaintiff underwent other surgical scar revisions in 2005 and 2006, each involving the administration of local anesthesia, the surgical removal of debris from the wound site, cleaning, debriding, and re-suturing the area. Although her scar looked much better at the time of trial, plaintiff remained "uncomfortable" with its appearance. She still experienced pain whenever she "roll[ed] onto the arm" while sleeping, had to rest her arm on a pillow when she did needlepoint, and could no longer do yoga. If she hit her elbow against any surface, she experienced "excruciating[] pain[][.]"

On cross-examination, plaintiff acknowledged that except for two visits to Rizzo, and the treatments she received from Rose, she had not seen any other doctors as a result of the accident. She took non-prescription Ibuprofen for pain on a daily basis, but did not take any prescription medication for her injuries. She lost $966 in wages after receipt of disability benefits.

Plaintiff's husband testified regarding the events of the day of the accident. For seven weeks thereafter, he slept on the bedroom floor because he did not want to bump into his wife's wound. He also assisted with more of the household chores than he had before the accident, but, with the exception of "heavy lifting," his wife had resumed most of those activities. Her personality had not changed since the accident, but she was "much more [] anxious when she[] [was] in the car."

Rose testified by videotape. When he responded to plaintiff in the hospital on the date of the accident, "her elbow [] was . . . pretty badly . . . lacerated." He "could see inside the open wound . . . that the bone had been scraped . . . and . . . the triceps tendon . . . was . . . lacerated as well." The "wound was not just one straight cut," but rather "was a series of abrasions and cuts . . . and there was a tremendous amount of [] dirt or road material . . . embedded into this lacerated area of her elbow." On the day of the accident, Rose surgically removed the glass, "aggressively[] scrubbed" the wound, and sutured first the tendon and then the skin. Rose could not remove all the "road debris" at the time because doing so would have left an area of open wound "far too large to close."

After some interim visits to check on plaintiff's progress, Rose performed a second surgery on November 22, 2004 to remove glass and "traumatic tattooing," i.e., when "dirt gets underneath the skin" creating "a dark patch." Rose rejected the option of doing a "skin graft" on plaintiff's elbow, instead electing to do "serial excisions," "meaning time after time [] tak[ing] a little bit" of the debris from the wound. Rose saw plaintiff again in April 2005 and scheduled another procedure because the traumatic tattooing was still evident.

Plaintiff underwent a third procedure on May 26, 2005 to revise the scar and remove more of the tattoo. Rose saw plaintiff one month later to check on her progress, and thereafter, two more procedures followed, on January 9, 2006 and October 30, 2006. Rose performed "lasering" on plaintiff's elbow after this last surgery to remove "some of the redness" of the scar.

Rose's prognosis was that plaintiff's injury would not cause "a major impact on her life[.]" He acknowledged, however, there may be "numbness in the area[,]" "chronic pain," and "the scar will probably always be a little [] tight there." Rose agreed that plaintiff's complaint about pain when she struck her elbow "[wa]s not uncommon at all," because nerve damage in the area would create "hypersensitivity." Rose characterized plaintiff's current appearance as a "very good result" with which he was "pleased."

Plaintiff called no further witnesses, and defendant rested without presenting any evidence. After summations and the charge, the jury deliberated for less than one hour and returned a verdict in plaintiff's favor for $6000, and zero for her husband's loss of consortium claim. Because defendant was entitled to a credit of $15,000 resulting from plaintiff's settlement with Calascione, a judgment of no cause was entered on August 25, 2008.

Plaintiff moved for a new trial on damages, or in the alternative, additur. She argued that comments made, but not objected to, by defense counsel in summation confused the jury on the law regarding damages, and that the verdict was "shocking and against the weight of the evidence." In denying her motion, the judge noted that defense counsel's summation comments "could have [been] objected [to] [] either during or after the summation" but were not, thus denying the judge an opportunity to "have cured if there was a problem." As to the quantum of damages, the judge noted "[t]here were two very different versions . . . of the aspects of this injury." He noted that defense counsel's cross-examination "somewhat undermined" plaintiff's complaints about "the degree of her disability and the degree of problems she had with th[e] scar." The judge noted the jury "simply . . . did not view this as [] an injury worthy of extensive compensation." Finding no basis to disturb the verdict, the judge also denied the motion for additur, citing Caldwell v. Haynes, 136 N.J. 422 (1994), for the proposition that he "could not give additur unless a new trial is warranted." This appeal followed.

II.

In reviewing the sufficiency of a jury verdict as to damages, we have said, "A new trial on damages should not be granted 'unless it is so disproportionate to the injury and resulting disability as to shock the court's conscience and convince it that to sustain the award would be manifestly unjust.'" Petitto v. Sands Hotel & Casino, Inc., 288 N.J. Super. 304, 308 (App. Div.) (quoting Tronolone v. Palmer, 224 N.J.Super. 92, 97 (App. Div. 1988) (in turn citing Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977))), certif. denied, 144 N.J. 589 (1996). "[T]he evaluation of damages is a matter uniquely reposed in the jury's good judgment, and to justify judicial interference, the verdict must be wide of the mark and pervaded by a sense of wrongness." Jastram v. Kruse, 197 N.J. 216, 229 (2008) (quotations omitted). When deciding a motion for a new trial as to damages, the trial judge must "evaluate the nature and extent of the injury, the medical treatment that the plaintiff underwent and may be required to undergo in the future, the impact of the injury on the plaintiff's life from the date of injury through the date of trial, and the projected impact of the injury on the plaintiff in the future." Ibid. The judge must review the record in a light most favorable to the party defending the verdict. Ibid.

"Although an appellate court must defer to the trial judge on witness credibility, demeanor, and 'feel of the case,' it determines for itself whether the record shows that there was a miscarriage of justice." Petitto, supra, 288 N.J. Super. at 309 (quoting Dolson v. Anastasia, 55 N.J. 2, 7 (1969)); see R. 2:10-1 (providing that "[t]he trial court's ruling on [] a motion [for a new trial] shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law"). "The 'feel of the case' factor, while entitled to deference, is the only element distinguishing the standard governing appellate review from that controlling trial court reaction to a jury verdict." Baxter, supra, 74 N.J. at 600. "[I]nsofar as the trial judge's decision rests on determination[s] as to worth, plausibility, consistency or other tangible considerations apparent from the face of the record, an appellate court need not defer." Jastram, supra, 197 N.J. at 230-31 (quotations omitted).

With these principles in mind, we turn to the record in this case. Baxter, supra, 74 N.J. at 602. In deciding plaintiff's motion for a new trial, the judge comprehensively reviewed her testimony, noting that the limitations upon her activities post-accident were few, that her scar was "difficult for [him] to see . . . when plaintiff was sitting in the . . . witness stand, approximately [twelve] feet away," and that her statements regarding her embarrassment over the scar's appearance may have been "undermined" by defense counsel's cross-examination. Finding "plaintiff extensively presented all the evidence she wished to at trial," the judge found "no reason to disturb the [j]ury verdict."

Defense counsel, in summation, highlighted the excellent recovery plaintiff made as to the appearance of her scar. Indeed, the summation comment to which plaintiff objects was essentially that while the jury's job was to "make the plaintiff whole," Rose had "already done that for [them]." The judge, too, noted that it was difficult to see the scar as plaintiff sat and testified. Having reviewed the photos presented at trial, we would concede that the physical appearance of plaintiff's scar has been significantly ameliorated.

However, in assessing the converse situation, that is whether a verdict was excessive, the Supreme Court noted a court's "role in assessing a jury verdict . . . is to assure that compensatory damages awarded to a plaintiff 'encompass no more than the amount that will make the plaintiff whole, that is, the actual loss.'" Jastram, supra, 197 N.J. at 228 (quoting Caldwell v. Haynes, 136 N.J. 422, 433 (1994) (in turn citing Ruff v. Weintraub, 105 N.J. 233, 238 (1987))). So, too, in this situation, we must evaluate whether the jury's award of $6000 could reasonably be related to plaintiff's actual loss and seen as having made plaintiff whole.

In addition to photos of plaintiff's scar, we have been supplied with copies of photos of her vehicle's condition after the accident that were introduced at trial. Needless to say, the collision itself was violent, such that plaintiff's fear for her life when the car flipped over, and her current apprehension when riding in a car, are understandable. Such mental anguish is clearly a recognized element of damages for which plaintiff was entitled to be compensated. See Model Civil Jury Charge 8.11E ("mental suffering, discomfort, and distress that a person may endure as a natural consequence of the injury" are compensable).

Defendant introduced no evidence to contradict plaintiff's expert, thus, the medical necessity of subjecting plaintiff to multiple operative procedures was not before the jury. Therefore, it is undisputed that plaintiff's initial condition required suturing of the underlying tendon which was lacerated in the collision, as well as the debridement, aggressive cleaning and suturing of the wound. Thereafter, plaintiff underwent multiple "serial excisions" every six months over the course of two years. Each time, she was required to go to the hospital, have local anesthesia administered, have the excision and cleaning, and then be sutured. Plaintiff was required to follow the same "wound care" procedure each time, including redressing the wound and applying antibiotic ointment. To the extent the jury viewed these discomforts as temporary in light of the favorable results occasioned by Rose's surgical skills, plaintiff was nevertheless entitled to be compensated for them. Model Civil Jury Charge, 8.11E, supra. Thus, "[e]ven if the jury discounted entirely plaintiff's complaints of pain and suffering . . . the jury verdict was woefully inadequate based on the medical testimony alone." Petitto, supra, 288 N.J. Super. at 310-11; see also Baxter, supra, 74 N.J. at 600 (noting that in conducting appellate review of the trial court's decision, "where no countervailing medical evidence was offered by defendant, as here, the 'feel of the case' factor is minimal").

In short, we are clearly convinced that the jury's evaluation was skewed by a cramped consideration of only the final result of all these operative procedures, i.e., how plaintiff's scar appeared at trial, and failed to include any fair and reasoned consideration of the other aspects of plaintiff's claim for damages. As a result, we conclude that the verdict was manifestly unjust and that plaintiff is entitled to a new trial on the issue of damages.

We do not conclude, however, that plaintiff Vincent Rizzo is entitled to a new trial on damages regarding his loss of consortium claim. First, while the notice of appeal refers to both plaintiffs, we note that plaintiffs' original brief discusses Vincent's claim factually in a single paragraph, and does not refer to the claim at all in the legal argument presented. Nor is any mention of the per quod claim made in the reply brief. An issue that is not briefed is deemed waived upon appeal. See El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 155 n.2 (App. Div. 2005) (co-plaintiff's appeal abandoned because brief posited no argument on separate claim); Pressler, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2009).

Moreover, we would reach the same result considering the merits of the appeal. "[T]he law allows spouses to sue derivatively in order to recover for some of the personal distress they suffer as a result of an injury to their husbands or wives. The per quod claim is the logical counterpart of the claim for pain and suffering that accrues to the spouse who is injured in the first instance." Landwehr v. Landwehr, 111 N.J. 491, 501 (1988). "[T]he pain and suffering that the per quod claim seeks compensation for is just as personal as the pain and suffering at issue in the primary action -- albeit usually less severe[.]" Ibid.

In this case, Vincent Rizzo testified that while he temporarily had to sleep on the floor of the bedroom, and assisted his wife with more chores than usual, the permanent effects of his wife's injuries upon him were minimal. Against this insubstantial evidence of the "loss or (sic) impairment of his [] spouse's services, society or consortium because of [her] injuries," Model Civil Jury Charge 8.30B, we cannot conclude the jury reached a manifestly unjust result in awarding him zero damages.

We reverse as to plaintiff Susan Rizzo only, and remand for a new trial on the issue of damages.

Vincent Rizzo's claim for per quod damages was entirely derivative of his wife's claim for damages. We shall use the singular "plaintiff" throughout the balance of this opinion in referring to both.

The parties later stipulated to this amount as the total of plaintiff's lost wages resulting from the accident.

In reality, because the parties stipulated that plaintiff lost $966 in wages as a result of the injuries, the jury's verdict for the remaining components of plaintiff's damage claim was $5034.

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A-0437-08T2

April 8, 2009