NANCY A. PALMER v. KALEENA KOVACS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0956-04T50956-04T5

A-1257-04T5

NANCY A. PALMER,

Plaintiff-Respondent,

v.

KALEENA KOVACS and STEVEN KOVACS,

Defendants-Appellants.

________________________________

NANCY A. PALMER,

Plaintiff-Appellant,

v.

KALEENA KOVACS and STEVEN KOVACS,

Defendants-Respondents.

_______________________________________

 

Argued January 18, 2006 - Decided February 6, 2006

Before Judges Skillman, Axelrad and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, MON-L-5544-01.

James D. Carton, III, argued the cause for appellants in A-0956-04T5 and respondents in A-1257-04T5 (Carton Law Firm, attorneys; Mr. Carton, on the brief.)

Michael J. Hanus argued the cause for respondent in A-0956-04T5 and appellant in A-1257-04T5 (Gill & Chamas, attorneys; Mr. Hanus, on the brief.

PER CURIAM

These appeals arise out of a final judgment entered by the Law Division on September 26, 2004 in this personal injury case following a four-day jury trial in August 2004. We now consolidate the appeals.

The matter concerns an intersection accident on April 10, 2000, in which an automobile driven by defendant Kaleena Kovacs struck an automobile driven by plaintiff Nancy Palmer. Plaintiff is subject to the limitation on lawsuit option ("verbal threshold") under the Automobile Insurance Cost Reduction Act of 1998 ("AICRA"), N.J.S.A. 39:6A-8. The trial court denied defendant summary judgment on the verbal threshold issue. Defendant stipulated to liability for the collision, and the case was tried as to damages only.

After considering the proofs, the jury returned a verdict awarding plaintiff damages, all of which were non-economic in nature, of $460,000. The trial court increased that sum in the final judgment to $549,695.46, to encompass prejudgment interest under R. 4:42-11, plus fees, costs and additional interest awarded to plaintiff pursuant to the offer of judgment rule, R. 4:58-2.

Following the jury verdict, defendant moved for a new trial, or, in the alternative, for remittitur. The trial court denied those motions, leaving the full verdict intact.

Defendant appeals on various grounds, principally on the trial court's failure to grant a new trial or to remit the verdict. Defendant also seeks review of the trial court's denial of summary judgment on the verbal threshold, and its inclusion of prejudgment interest in fixing the amount of the supersedeas bond to be posted by defendant pursuant to R. 2:9-6.

Plaintiff filed a separate appeal, which contends that the trial court miscalculated the fees, costs and interest recoverable by plaintiff under R. 4:58. Specifically, plaintiff argues that the trial court erroneously used the date that plaintiff tendered her second offer of judgment to defendant in July 2004, rather than plaintiff's first offer of judgment in March 2002, to trigger those fee-shifting calculations.

We have considered the briefs and the oral arguments of counsel. As a preliminary matter, we address defendant's contention that the trial court should have granted defendant's motion for summary judgment on the verbal threshold issue. We find no error in the denial of that motion, particularly in light of the Supreme Court's supervening opinions on the AICRA verbal threshold in DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005).

In moving for summary judgment, defendant argued that plaintiff had not met either of what were then widely perceived to be the two prongs of the AICRA verbal threshold: (1) a serious "permanent injury" resulting from the accident, see N.J.S.A. 39:6A-8(a)(6), and (2) a so-called "serious impact" on plaintiff's life activities. See James v. Torres, 354 N.J. Super. 586, 596 (App. Div. 2003), certif. denied, 175 N.J. 547 (2003), disapproved by DiProspero, supra, 183 N.J. at 481-82 ("[A]n automobile accident victim who is subject to the [verbal] threshold and sues for noneconomic damages has to satisfy only one of AICRA's six threshold categories and does not have the additional requirement of proving a serious life impact.") and Serrano, supra, 183 N.J. at 510 (Such a victim "has to prove only an injury defined in N.J.S.A. 39:6A-8a, and does not have to clear the additional hurdle of proving a 'serious injury.'").

Defendant's motion arguments, and those in her initial brief before this court, focused substantially on the serious impact prong, emphasizing, among other things, that plaintiff had only missed two days of work after the accident, and had only received seven months of chiropractic care without any further treatment over the ensuing four years. In her reply brief on appeal and in her counsel's oral argument before this court, defendant conceded that the former "serious impact" prong of AICRA is inapplicable to this case, which was pending on appeal when the Supreme Court issued DiProspero v. Penn and Serrano v. Serrano. See Beltran v. DeLima, 379 N.J. Super. 169, 176-77 (App. Div. 2005)(applying "pipeline" retroactivity to DiProspero and Serrano). Thus, the trial court's denial of the motion on that basis should not be disturbed.

Defendant still contends, however, that the trial court should have granted her summary judgment on the permanent injury issue. We disagree. Viewing the record in a light most favorable to plaintiff, we perceive genuine issues of material fact on issues of permanency and causation that required the denial of defendant's motion under R. 4:46. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Plaintiff was twenty-three years old at the time of the accident, which involved sufficient force to activate the air bag in her vehicle. She was taken to the emergency room with initial complaints of pain in her neck and in her left hand and arm. An x-ray performed at the hospital that day showed no fractures, but did show "a straightening of the normal cervical lordosis consistent with muscle spasm." That evening plaintiff began to experience lower back pain that radiated into her thigh and severe headaches with a stiff neck that would wake her up during the night.

About two months after the accident, plaintiff began treating with Thomas Dandrea, D.C., a chiropractor in Red Bank, still complaining of sharp pains that traveled up and down her back, and of other symptoms. Two months later, plaintiff transferred her care to Richard Sanford, D.C., a chiropractor in Middletown.

Plaintiff's injuries improved somewhat with Dr. Sanford's treatment, but her neck and back problems persisted. In his report rendered in June 2001, Dr. Sanford noted that plaintiff continued to have "significant limitations in her cervical and lumbar spine," citing "persistent cervical and lumbar spasms throughout her treatment," and "nearly a 40% loss" of cervical extension and lumbar extension and flexion.

Plaintiff also underwent various diagnostic tests that objectively revealed abnormalities in her neck and lower back. A cervical MRI performed on September 7, 2000 disclosed a small disc bulge at C3-C4, a disc bulge with central canal stenosis at C4-5, and a small disc bulge with central canal stenosis at C5-C6. A lumbar MRI on March 6, 2001 revealed a mild disc bulge at L4-L5 level, and posterior element spondylosis at L5-S1 with bilateral facet joint hypertrophy.

Additionally, Robert Dennis, M.D., a board certified orthopedic surgeon, examined plaintiff on February 26, 2002 at her counsel's request. His examination of plaintiff's lumbar spine, nearly two years after the accident, revealed "mild muscle spasm palpated through her sweater, and limited forward motion and backward extension." He also found "approximately a[n] 80% range of motion of her lumbar spine" and "moderate" tenderness in her lumbar spine.

Further, Dr. Dennis' cervical examination revealed:

[R]estriction in the extremes with forward flexion possible to only 60 degrees, and backward extension to 15 degrees. Lateral bending was limited to 10 degrees to the right and 15 degrees to the left. A positive compression test. . . noted. . . fibrosis or tightness of the paraspinal muscles of both her neck and back area. . . . Tenderness in the mid-area of the cervical spine, particularly as the muscles attach to the occiput, revealed persistent and significant tenderness, and multiple trigger points were noted about the trapezius. There was limited ability to shrug shoulders.

Dr. Dennis' final diagnoses were: (1) hyperflexion/hyperextension injury to the cervical and lumbar spine, (2) cervicobrachial syndrome, (3) brachial, neuralgia, (4) transient lumbosacral neuritis/radiculitis, (5) lumbosacral muscle spasm resulting in mild fibrosis and limitation of motion, (6) disc bulges at C3-4, C4-5, C5-6, and (7) disc bulge, lumbar spine, at L4-5 with spondylosis at L5-S1. Dr. Dennis concluded that the "objective medical evidence provided by the MRI confirms. . . that this motor vehicle accident produced the bulging discs at two levels of the cervical spine that were not there previously and that are causing the patient current, active, and persistent complaints that I believe will continue on a permanent basis."

J. Bruce Bosniak, M.D., a retired orthopedic surgeon, examined plaintiff on April 8, 2002 on behalf of defendant. Dr. Bosniak documented plaintiff's persistent complaints as involving "numbing or shooting" pain in the lower back, once or twice-weekly temporary sharp shooting pain radiating from lower back into posterior thighs (most frequently when changing from seated to standing position), daily neck pain accompanied by stiffness and soreness (awakening each morning with a stiff neck) and headache every other day, with plaintiff reportedly taking over-the-counter pain relievers one to two times daily.

Dr. Bosniak's evaluation of plaintiff's cervical and lumbar ranges of motion documented no limitation of motion in the lumbar area and limited lateral flexion and left lateral rotation in the cervical area. He concluded that there was "no objective physical residua consistent with any significant soft tissue, muscular or neurologic abnormality in this patient that [he] could specifically attribute to the accident of April 10, 2000" and that "[n]othing. . .precluded this patient from the normal performance of her daily occupation, or from the pursuit of a variety of recreational activities."

In a supplemental report dated August 14, 2002, Dr. Bosniak reviewed the earlier MRI studies of plaintiff's cervical and lumbar spine. He opined that the changes noted on the cervical MRI study, with the exception of the partial reversal of the cervical lordosis, were minimal in nature and not traumatically induced. He did note, however, that "a tiny midline protrusion indents the thecal sac but does not approach the cervical cord." His report further acknowledged that the lumbar MRI study had shown a "very mild" disc bulge at L4-5, but no protrusion or herniation. On the whole, Dr. Bosniak's view was that plaintiff's cervical and lumbar disc bulges were insignificant.

Faced with the objective indicia of a permanent injury, and the competing interpretations of plaintiff's injuries by the doctors retained by each side, the trial court properly found that there were genuine issues of material fact warranting a jury trial.

The indicia that plaintiff had suffered a permanent injury were not confined to range-of-motion limitations, see Oswin v. Shaw, 129 N.J. 290, 320 (1992)(noting that "most range-of-motion tests are based only on patients' pain responses, [and] ordinarily will not suffice unless the restricted mobility is verified by physical examination and observation"), but were further reflected in the multiple bulges shown on the MRI studies and the persistence of spasm more than two years post-accident. These objective factors were coupled with plaintiff's continued subjective complaints, including her assertion that she would awaken every two or three hours each night with pain or discomfort.

Causation also was an appropriate issue for trial. Although we recognize that degenerative non-traumatic changes in the spine are often part of the aging process, the plaintiff here was in her early twenties. She had at least two prior motor vehicle accidents and also was involved in another accident following the subject collision, although none of those accidents led her to seek medical treatment. Given these circumstances, the jury properly was asked to assess the cause or causes of plaintiff's neck and back problems.

Therefore, we affirm the trial court's denial of the defendant's summary judgment motion. The remaining issues before us, however, are not amenable for disposition, for reasons that we explain below.

In his oral opinion denying defendant's post-trial motion for new trial or remittitur, the trial court concluded that the $460,000 verdict did not amount to a "miscarriage of justice." See R. 4:49-1 ("trial judge shall grant the motion if, having due regard to the opportunity to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law."); see also Baxter v. Fairmont Food Co., 74 N.J. 588 (1977). However, apart from generalized statements about the jury's role in fixing damages in personal injury cases, the trial court offered no reasons specific to this case in support of that conclusion. The judge alluded to no particular trial proofs regarding plaintiff's injuries, their severity or duration. Nor did he provide any insight into the credibility of the witnesses or other intangibles that could explain why the jury's verdict was not, in the judge's view, manifestly excessive.

In ruling upon a motion for new trial, additur or remittitur, the trial court has an obligation to canvass the proofs and consider whether the verdict, in light of those proofs, is manifestly excess or insufficient. Vartenissian v. Food Haulers, Inc., 193 N.J. Super. 603, 612 (App. Div. 1984) ("if the reasons why the judge found such a lack of [a miscarriage of justice under the law] are unclear, a remand would be proper to obtain such reasons.").

As we observed in the comparable additur context, "[d]etailed findings. . .should be given by the trial court, not only for our use in the event of an appeal, but for the parties' review so that they can consider the court's sound reasons for reaching a fair result." Tronolone v. Palmer, 224 N.J. Super. 92, 104 (App. Div. 1988). Such detailed findings are simply absent here. That omission severely handicaps this court's ability to make a fair and informed assessment of the parties' contentions about the verdict on this appeal.

We do not believe it appropriate under these circumstances to exercise our original jurisdiction in considering whether this verdict constitutes a miscarriage of justice. The trial judge is apt to have developed a feel for this case, and a comparative sense of this verdict relative to others routinely tried in his court involving plaintiffs of about the same age and with similar injuries, which could benefit our own perceptions. See Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 501 (2001) (in explaining why a jury verdict was excessive, a trial court properly can rely upon "the evidence that it saw and heard. . . [and] on its own common knowledge, as well as its experience with other injury verdicts[.]").

We are mindful that the trial took place over a year ago, and that the judge's recollection may not be distinct or complete. The record does indicate that the trial judge did have bench notes from the trial, and it is our hope that those bench notes, if they still exist, coupled with the trial transcripts which counsel shall furnish to him forthwith, will assist the judge in refreshing his perceptions on the case.

Accordingly, we remand this case and instruct the trial judge to reconsider the defendant's motion, and to provide this court and counsel with an amplified statement of reasons pursuant to R. 1:7-4(a), which shall be completed by March 10, 2006. See also Barnett and Herenchak, Inc. v. State, 276 N.J. Super. 465, 473 (App. Div. 1994). In so doing, we make no comment as to whether the verdict is or is not manifestly excessive. We do not reach the remaining issues on appeal, as we shall resolve those issues on a comprehensive basis following our receipt of the trial judge's statement of reasons, unless, of course, the parties settle the case in the interim.

 
Remanded for a statement of reasons; jurisdiction is retained.

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A-0956-04T5

February 6, 2006