KRYSTYNA SIEK 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NOT FOR PUBLICATION WITHOUT THE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-3892-08T33892-08T3

KRYSTYNA SIEK,

Plaintiff-Respondent,

and

RYSZARD SIEK,

Plaintiff,

v.

NEW JERSEY MANUFACTURERS

INSURANCE COMPANY,

Defendant-Appellant.

_________________________________

 

Argued December 2, 2009 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-177-07.

Anthony Young argued the cause for appellant (Parker Young & Antinoff, LLC, attorneys; Mr. Young, on the briefs).

Michael G. Donahue argued the cause for respondent (Stark & Stark, attorneys; Mr. Donahue, on the brief).

PER CURIAM

Defendant New Jersey Manufacturers Insurance Company (NJM) appeals the Law Division's order denying its motion for a remittitur to reduce the amount of the jury's award to plaintiff Krystyna Siek for lost wages. We affirm.

I.

On July 27, 2001, Siek sustained injuries to her neck and back as the result of an automobile accident involving an uninsured motorist. Siek brought this action against NJM for payment of uninsured motorist (UM) benefits. Siek's claim was subject to the "verbal threshold" contained in N.J.S.A. 39:6A-8(a).

NJM stipulated that the uninsured driver was negligent. The issue of damages was tried before a jury, which concluded that Siek's injuries were not "permanent" and did not satisfy the verbal threshold. Consequently, Siek did not receive an award for non-economic damages. The jury found, however, that Siek suffered economic damages from the injuries she sustained in the accident, awarding her $36,000 in lost wages.

Arguing that Siek's lost wage claim was limited to the period between the date of the accident and her initial return to work early the following year, NJM moved for a remittitur. NJM also argued that there had been an agreement among counsel to that effect. Siek opposed the motion, arguing that there had been testimony from which the jury could have determined that Siek retired at least a year before she was eligible because of pain resulting from her accident-related injuries. Siek also argued that NJM's motion was untimely.

Judge Paul Innes denied NJM's motion. Although he concluded that the motion was timely because of a delay in finalizing the judgment, he determined that there was a factual basis for the jury's verdict. He stated his reasons as follows:

It's argued by the defendant that the amount of lost wages claimed by plaintiff through the closing argument was 24 weeks at an average weekly earning of $468.

Counsel states that defendant's and plaintiff's counsel had come to an informal agreement that this form represented the gross amount of lost wages due to the plaintiff.

Counsel states that, prior to the commencement of the trial, defense counsel advised the Court that if he would simply refer to the tax tables relative to reducing any gross wage to a net wage.

It's argued by the defense counsel that the gross amount of lost wages at $468 over 24 weeks is $11,232 minus $1,797.12 in taxes for a wage loss of $9,435.

Plaintiff received $8,082 in temporary disability benefits which must be subtracted from the total amount as alleged by the defendant of $9,435 for a total of $1,353.

It's argued by the defendant that there was never any evidence put forth that plaintiff earned any other monies or actually applied for any other employment position which would have supplemented her salary. Therefore the only wages that were lost were in fact reflected in the closing argument of plaintiff's counsel.

It's argued by the defendant that the verdict in the amount of $36,000 must be remitted to that substantiated by the plaintiff at trial.

Plaintiff's counsel states that the motion was filed and served well beyond the time limit for remittitur which is 20 days and plaintiff argues that that period must be strictly complied with pursuant to Spedick v. Murphy, 266 N.J. Super. 573 (App. Div.), [certif. denied, 134 N.J. 567 (1993)].

With regard to the substantive argument, plaintiff states that the amount returned by the jury is supportable based upon the jury charge provided by the Court which includes the language that the first thing the jury must decide is was the plaintiff disabled by his or her injuries which in term resulted in a loss of income:

If you find that took place, then you have to decide and fix the amount of loss of earnings. You do this by considering the length of time during which plaintiff was not able to work, what her income was before the injuries, how much she earned upon return to work, whether the injuries affected her ability to do any tasks required on the job, and any lessening or decrease in her income after returning to work.

Plaintiff testified that she did not work from the date of the accident through February 2002. She then worked until 2004[] when she testified she could no longer perform her duties and she did take an early retirement. She testified that her retirement pension was not available until 2005.

Remittitur is an extraordinary remedy. "A jury verdict will be overturned on the ground of excessiveness only with reluctance and never except in a clear case." Tramutola v. Bortone, 118 N.J. Super. 503, [518] (App. Div. 1972), modified, 63 N.J. 9 (1973).

Excessiveness of damages alone, even if gross, is an insufficient ground for setting aside the jury's verdict rather than ordering a remittitur. Fertile v. St. Michael's Medical Center, 169 N.J. 481 (2001).

Remittitur is available only if the issue is the quantum of damages that claimant's right to relief is clear and the verdict was not the result of compromise or otherwise tainted. Caldwell [v. Haynes, 136 N.J. 422, 443 (1994)].

The trial court should take into account the jury's determination to view plaintiff's claims sympathetically and to credit plaintiff's testimony with respect to damages and the ability of the parties to proffer competent evidence relating to such matters as net income, work life expectancy and the current value of any awards based on future losses.

With regard to the argument by plaintiff that the defendant's motion fails to comply with the 20 day time requirement, Spedick was decided when [Rule] 4:49-1(b) consisted of a ten day time limit.

The rationale of Spedick, however, is still applicable. The Court in Spedick strictly complied with the time requirement and held the plaintiff's motion for a new trial was barred due to failure to timely serve defendant.

Here on December 18th, 2008, the jury returned its verdict and on January 29th, 2009, more than 20 days later, the defendant filed this motion on January 29th, 2009.

Defendant argues, however, that the Court requested that the verdict be molded and the order of judgment was not filed until January 15th, 2009. The order of judgment was in fact filed on that date and although the motion was not filed within 20 days of the return of the jury's verdict, the actual judgment was not made final until January 15th, 2009, on account of the molding of the verdict.

Thus the Court finds that the motion was timely made pursuant to Rule 4:49-1(b).

Here while the jury found that plaintiff did not suffer a permanent injury, the jury did find that plaintiff suffered an economic loss and awarded damages in the amount of $36,000.

Now the Court, having had the opportunity to sit over this trial and to hear the testimony that was presented, clearly remembers that the testimony of the plaintiff here was that on account of the injuries suffered as a result of this accident she did take an early retirement, earlier than what she had otherwise expected.

Certainly I think a jury could have taken that testimony and, based upon the other facts they have with regard to the earnings of the plaintiff, extrapolated an amount that was reasonably based upon testimony that was presented during the trial.

Of course the amount of economic loss for lost income or future income does not have to be mathematically precise. All that needs to be done is that there be some support in the evidence for the jury's verdict.

And I do find that here there is support for the jury's verdict, and I'm going to deny the motion for remittitur.

This appeal followed.

II.

A court's role in assessing a jury verdict for excessiveness 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." Caldwell v. Haynes, 136 N.J. 422, 433 (1994). The court must review the "totality of the evidence" in the record, Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977), analyzed in a light most favorable to the plaintiff, Johnson v. Scaccetti, 192 N.J. 256, 281 (2007).

The authority to set aside damage awards on grounds of excessiveness is limited, Carey v. Lovett, 132 N.J. 44, 66 (1993), and should be exercised only in clear cases, Fritsche v. Westinghouse Electric Corp., 55 N.J. 322, 330 (1970). A jury verdict is generally determined to be excessive only when "it is so disproportionate to the injury and resulting disability shown as to shock [the] conscience and to convince [the court] that to sustain the award would be manifestly unjust." Baxter, supra, 74 N.J. at 596.

The Supreme Court addressed the issue of judicial review of damage verdicts in Jastram v. Kruse, 197 N.J. 216 (2008). The Court reiterated that "the 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." Id. at 229 (citations and internal quotation marks omitted). The Court further noted that "where an award, even if generous, has reasonable support in the record, the jury's evaluation should be regarded as final." Id. at 230 (citations and internal quotation marks omitted).

On appeal, the standard of review for determining the excessiveness of a damages award is the same standard applicable to the trial court, see Baxter, supra, 74 N.J. at 596, with one significant exception. An appellate court must pay deference to the trial court's "'feel of the case,'" given that, on appeal, review is confined to "the cold record." Id. at 600.

Our review of the record and applicable law leads us to conclude that Judge Innes applied the appropriate standard to reach a result fully supported by the record. Siek explained her reasons for stopping work in November 2005 as follows:

Q. When did you stop doing that job after you returned to work?

A. In 2005 in November.

Q. Did you have difficulty with your work responsibilities between the time you started back to work and when you finally stopped working as a result of your injuries?

A. Yes, but I would just work, the pace of my work was slower. Also I got a helper, I got a helper, a girl. She would come and help me.

Q. Did anything change that affected your decision to leave the job?

A. Yes. The number of machines increased, they purchased more machines. Now they had 40 machines and there was a new manager. He didn't really care if I was injured or not, if I was in pain or not. And he wanted me just to do everything he wanted me to do.

And I just decided that I was no longer able to do it. My leg was hurting more and more and more, same with my lower back, so I stopped. I just told him I'm quitting.

Also my husband's condition worsened. I just decided to quit.

Q. Was an early retirement available to you?

A. Not yet. No, only just after one more year.

Based on that testimony, the jury could easily have found that she retired approximately one year prior to her eligibility to retire because of the pain associated with injuries from the accident, combined with her employer's recent unwillingness to accommodate her need to work at a slower pace because of those injuries. That her attorney did not emphasize that fact in his closing argument did not preclude the jury from considering the testimony and making the award.

NJM also argues that there was an agreement between counsel with respect to the amount of damages. In his December 22, 2008, letter to Siek's counsel seeking an agreement on reduction of the lost wage verdict, counsel for NJM wrote: "I believe we can both agree that this verdict as to your client's lost wages was in error." He then calculated the amount he believed was due to Siek and wrote: "If you are in agreement, please reflect this in your proposed form of the Order of Judgment in this matter." Clearly, the language of counsel's contemporaneous letter does not bespeak the existence of a pre-existing agreement to limit the damages.

NJM's reliance on the brief colloquy with the judge after the jury rendered its verdict is also misplaced. Judge Innes merely told Siek's counsel that he should make an application to the court to mold the verdict if he and counsel for NJM could not agree on how the verdict should be molded. Again, there was no reference to a pre-existing agreement between counsel. In fact, Siek's counsel submitted a certification noting that the $36,000 verdict should be reduced to $28,094.60 because of adjustments outlined in the certification. The judgment entered by Judge Innes reflects that reduction.

III.

In summary, we conclude that Judge Innes's decision to deny the motion for remittitur was based on the appropriate legal standard and adequately supported in the record. Consequently, we affirm for the reasons stated in his oral decision, as supplemented above.

Affirmed.

It appears from plaintiff's testimony as set forth on page nine of this slip opinion that she actually worked until 2005.

NJM's citation of Miskelly v. Lorence, 380 N.J. Super. 574, 578-79 (App. Div.), certif. denied, 185 N.J. 597 (2005), in its reply brief is misplaced. In this case, Siek was not awarded any future lost wages.

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A-3892-08T3

December 21, 2009