DAVID SABO v. CLARK D. SABO

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5636-06T25636-06T2

DAVID SABO,

Plaintiff-Respondent,

v.

CLARK D. SABO and

SUSAN SABO,

Defendants-Appellants.

_____________________________________________________________

 

Argued March 3, 2008 - Decided

Before Judges Graves, Sabatino, and Alvarez.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Docket No.

L-4710-05.

Joseph D. Connell, Jr., argued the cause for

appellants (Law Office of Robert R. Nicodemo III,

attorneys; Mr. Connell, on the brief).

Joseph J. Urban argued the cause for respondent

(Flynn & Associates, P.C., attorneys; Mr. Urban,

on the brief).

PER CURIAM

Plaintiff David Sabo filed a complaint seeking damages for injuries he sustained after falling from a ladder while working on the outside of defendants' home. Plaintiff and defendant Clark Sabo are cousins. Prior to trial, the parties negotiated a high-low agreement in which defendants agreed to pay plaintiff a minimum sum of $10,000 in return for plaintiff's agreement to accept a maximum sum of $125,000 regardless of the outcome of the trial.

The jury found plaintiff was sixteen percent negligent and defendants were eighty-four percent negligent, and it awarded damages in the amount of $140,000. In addition, the parties had stipulated that plaintiff's medical bills in the amount of $24,624.25 were to be added to the verdict. When plaintiff's total damages were reduced by his comparative negligence, plaintiff was entitled to a net award of $138,284.37. Nevertheless, based on the high-low agreement, the court entered a judgment in the amount of $125,000 on June 15, 2007.

On appeal, defendants claim the trial court erred in failing to grant a mistrial after plaintiff testified his cousin told him "don't worry, I talked to the insurance company, everything's taken care of." After considering this argument in light of the record and in the context of the discretion afforded to trial courts on mistrial motions, we affirm. See Greenberg v. Stanley, 30 N.J. 485, 503 (1959) (stating the denial of a mistrial will not be reversed "unless it so clearly appears from the printed page alone that the happening on which the motion was based was so striking that because of it one of the parties could not thereafter have a fair trial").

Pursuant to N.J.R.E. 411: "Evidence that a person was or was not insured against liability is not admissible on the issue of that person's negligence or other wrongful conduct." "The Rule recognizes the obvious fact that a person's having procured liability insurance has virtually no relevance to the question of whether he was negligent or guilty of wrongdoing on a particular occasion." Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 411 (2008). The Rule also recognizes the obvious danger "that if jurors know that an insurance company will be paying a judgment, they might be reckless in awarding damages to a plaintiff." Ibid. See also Wenz v. Allstate Ins. Co., 316 N.J. Super. 570, 574 (App. Div. 1998) ("[A]wareness by the jury of the existence of insurance is thought to present the danger of an award of damages based upon the deep pockets of the carrier." (Internal quotations omitted)).

Nevertheless, "every inappropriate, impermissible reference to insurance coverage . . . is not necessarily grounds for a mistrial." Pickett v. Bevacqua, 273 N.J. Super. 1, 4 (App. Div. 1994). As we have stated, "a mistrial should be ordered only when the court in the realistic exercise of its sound discretion concludes that in the special circumstances of the case a party thereto is likely to have suffered prejudice by the mention of insurance." Runnacles v. Doddrell, 59 N.J. Super. 363, 369 (App. Div. 1960).

In the present matter, Judge Michael J. Kassel concluded defendants were not prejudiced by the reference to insurance coverage, and we are in substantial agreement with his stated rationale for denying a mistrial. Moreover, given the nature and extent of plaintiff's injuries and the high-low agreement, it is clear the damages awarded by the jury were neither reckless nor excessive.

Affirmed.

 

Judge Sabatino was not present for the oral argument, but was provided with an audio recording of the proceeding.

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A-5636-06T2

August 14, 2008