MED-X MEDICAL MANAGEMENT SERVICES v. BATIA GRINBLAT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0167-10T3

MED-X MEDICAL MANAGEMENT

SERVICES,

Plaintiff-Respondent,

v.

BATIA GRINBLAT,

Defendant/Third-Party

Plaintiff-Appellant,

v.

LOUISE HANSEN and STATE

FARM INSURANCE COMPANY,

Third-Party Defendants-

Respondents.

 

________________________________________________________________

November 21, 2012

 

Submitted March 27, 2012 - Decided

 

Before Judges Espinosa and Kennedy.

 

On Appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-009702-10.

 

Batia Grinblat, appellant pro se.

 

Timothy J. Dey, attorney for respondent Med-X Medical Management Services.

 

Swartz Campbell, LLC, attorneys for respondent Louise Hansen (Jordan S. Derringer, on the brief).

 

Chasan Leyner & Lamparello, attorneys for respondent State Farm Indemnity Company (Joseph A. Lagana, of counsel and on the brief).

 

PER CURIAM

Defendant Batia Grinblat, a pedestrian, was struck by a motor vehicle and injured on January 29, 2007. Her automobile insurance policy with defendant State Farm Indemnity Company (State Farm) provided $250,000 in Personal Injury Protection (PIP) benefits. After defendant's PIP benefits were exhausted in June 2007, State Farm denied payment for any additional medical services.1

On March 22, 2010, plaintiff Med-X Medical Management Services (Med-X) filed a complaint in the Special Civil Part against defendant, seeking $10,703. Its principal, Lenny August, testified that the claim was for twelve trips of wheelchair van transportation.

Defendant filed an answer and jury demand, dated May 3, 2010. She also filed a third party complaint against State Farm and Louise Hansen, whom she described as State Farm's agent. In her third party complaint, defendant alleged:

Louise Hansen ordered all goods & services from Med-x [sic] and told Grinblat that Hansen will pay for them; Hansen was agent of State Farm which paid for all goods & services ordered by Hansen; State Farm hired Hansen as agent thru her employer; Grinblat relied on Hansen and her promises and arrangements, otherwise Grinblat would have made other arrangements.

On May 12, 2010, the trial court entered a "jury trial order" sua sponte, which required all parties to exchange and submit the following at least seven days before the scheduled trial date of June 29, 2010:

A. Any proposed jury voir dire questions.

 

B. A list of proposed jury instructions pursuant to R. 1:8-7 with specific references to Model Jury Charges if applicable, or to applicable legal authority which charges must be tailored to the facts involved in the instant case. Any substantive issue which is not included in the request to charge, may, at the discretion of the Court, be deemed abandoned or may be viewed as an issue for determination by the Court rather than by a jury. Failure to tailor any request to charge to the facts involved in this case may be viewed as constituting a request for a general charge and a waiver of a request for a tailored charge.

 

C. A proposed jury verdict form pursuant to R. 4:39-2 which shall address and include all possible verdicts which the jury may return. The Court may decline to submit any issue to the jury which is not addressed in the proposed verdict forms[.]

 

The order further stated, "failure to exchange and submit all of the information required by this Order, within seven (7) days prior to the scheduled trial date, may result in sanctions as determined by the trial judge including waiver of the jury trial demand."

In response to the court's sua sponte order, defendant submitted proposed instructions to be given before voir dire and after the evidence was presented. The response cited specific Model Civil Jury Charges; included proposed voir dire questions, with specific references to Directive #4-07; and proposed a verdict sheet that listed elements set forth in relevant portions of the Model Civil Jury Charges. The trial court ruled that defendant's submission did not comply with its order because the instructions were not tailored to the facts of the case. Relying upon Velazquez v. Portadin, 163 N.J. 677 (2000), the court ruled that because defendant failed to comply with its order, she waived her demand for a jury trial.

Following a bench trial, the court entered judgment in plaintiff's favor for $10,703 and dismissed defendant's third-party complaint.

Defendant presents the following issues for our consideration in this appeal:

POINT I

 

JURY TRIAL

DEFENDANT SHOULD HAVE HAD A JURY TRIAL AS GUARANTEED BY THE NJ CONSTITUTION, AS PROPERLY DEMANDED AND AS REQUIRED BY R.6:5-3(d), AND AS SUPPORTED BY R.4:25-7(b) AND SUPREME COURT DECISIONS

 

POINT II

 

QUANTUM MERUIT CLAIM

THE COURT SHOULD HAVE DISMISSED PLAINTIFF'S QUANTUM MERUIT CLAIM BASED PRINCIPALLY ON THE FACTS THAT THERE WAS NO RELATIONSHIP BETWEEN PLAINTIFF AND DEFENDANT AT THE TIME THE BENEFIT WAS CONFERRED AND THERE WAS NO MISTAKE ON THE PART OF THE PERSON CONFERRING THE BENEFIT

 

POINT III

 

PROMISSORY ESTOPPEL

THE COURT SHOULD HAVE FOUND THIRD PARTY DEFENDANTS LIABLE ON PROMISSORY ESTOPPEL BASIS IF IT FOUND THAT PLAINTIFF IS OWED ANY MONEY AT ALL

 

POINT IV

 

CONCLUSION

THE APPELLATE DIVISION SHOULD ORDER THAT PLAINTIFF'S CASE BE DISMISSED WITH PREJUDICE AND THAT DEFENDANT BATIA GRINBLAT BE AWARDED FEES AND COSTS BECAUSE THE PLAINTIFF HAD NO LEGAL OR EVIDENTIAL SUPPORT FOR ITS CLAIMS WHATSOEVER

 

Defendant sought a jury trial on both Med-X's complaint against her and her third-party complaint against State Farm and Hansen. For the following reasons, we agree that she was erroneously denied her right to a jury trial in Med-X's action against her and conclude that she had no right to a jury trial on her third-party complaint.

The New Jersey Constitution of 1947 provides that "[t]he right of trial by jury shall remain inviolate[.]" N.J. Const. art. I, 9. "This provision guarantees the right to jury trial to the extent that that right existed at common law when the New Jersey Constitution was adopted." State v. One 1990 Honda Accord, 154 N.J. 373, 377 (1998); see also State v. Anderson, 127 N.J. 191, 207 (1992); Muise v. GPU, Inc., 332 N.J. Super. 140, 168 (App. Div. 2000). Defendant's claim against State Farm and Hansen derives from the statutory creation of PIP benefits by the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A.39:6A-1.1 to -35, not from any common law right that existed at the time the New Jersey Constitution was adopted. Thus, in Manetti v. Prudential Prop. & Cas. Ins. Co., 196 N.J. Super. 317 (App. Div. 1984), we concluded, "there is no right to a jury trial for PIP benefits where the issue is what benefits, if any, are due." Id. at 320. As a result, defendant's argument that the court's ruling erroneously deprived her of her right to a jury trial in her third-party complaint must fail.

Although the court found defendant liable to Med-X on a theory of quantum meruit, Med-X alleged breach of contract in its complaint, stating that defendant owed money on a book account. As a result, defendant's demand for a jury trial enjoyed constitutional protection under Article 1, paragraph 9 of the New Jersey Constitution of 1947. Rule 6:5-3, which governs jury trials in the Special Civil Part, defines specific circumstances in which a jury trial shall be deemed to be waived in subsection (b), none of which are applicable here. Rule 6:5-3(d) explicitly states that if there is a jury demand, which is not withdrawn, "the action shall be tried by jury."

Notwithstanding the constitutional guarantee and the applicable rule, the trial court determined that defendant waived her right to a jury trial because she failed to comply with a pretrial order. Although defendant had submitted proposed jury charges, voir dire questions, and the elements to be included in a verdict sheet, which could be considered substantial compliance with the order, the court viewed the effort as completely deficient because the proposed jury charges had not been tailored to the facts. In support of its order, the trial court cited Velazquez, supra, 163 N.J. at 690 and, in a supplemental statement of reasons, Das v. Thani, 171 N.J. 518, 527 (2002). However, neither of these malpractice cases provides support for the proposition that purported deficiencies in a party's proposed jury charges could provide a basis for a court to deem a jury demand waived.

In each case, the Supreme Court reviewed the errors of trial courts in delivering jury instructions, not any deficiency in a party's proffered jury instructions. In Velazquez, the trial court gave a medical judgment rule charge to the jury in a case in which there were multiple issues that did not call for the exercise of medical judgment, but instead implicated the question of deviation from the applicable standard of care. Stating well-established principles regarding the need to give appropriate instructions, the Court concluded that the trial court's failure to tailor the instructions to the facts of the case constituted reversible error. Similarly, Das concerned the reversible error of the trial court in giving an instruction on medical judgment.

The trial court offered no other legal authority to support the harsh sanction it imposed for defendant's failure to comply with its pretrial order to its satisfaction. In this appeal, Med-X has offered no opposition to defendant's argument that she was erroneously deprived of her right to a jury trial. We are satisfied that the trial court erred in concluding the demand for a jury trial had been waived based upon defendant's purported failure to comply with the pretrial order.

The judgment dismissing defendant's third-party complaint against State Farm and Hansen is affirmed. The judgment in favor of Med-X is reversed and remanded for further proceedings consistent with this opinion.

1 Payment was also denied by United Healthcare, defendant's health insurance carrier on the ground that wheelchair van transportation was not covered under its policy.