SANDRA KOHLER v. LIFE INSURANCE COMPANY OF NORTH AMERICA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SANDRA KOHLER,

Plaintiff-Appellant,

v.

LIFE INSURANCE COMPANY OF

NORTH AMERICA and BEST MED

CONSULTANTS, P.A.,

Defendants-Respondents.

___________________________________

May 5, 2014

Submitted December 18, 2013 Decided

Before Judges Sapp-Peterson and Maven.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2609-11.

Hagner & Zohlman, L.L.C., attorneys for appellant (Thomas J. Hagner and Andrew T. McGuire, on the briefs).

Grossman & Heavey, P.C., attorneys for respondentBest MedConsultants, P.A.(Richard A. Grossman, on the brief).

PER CURIAM

Plaintiff Sandra Kohler appeals from the Law Division order granting summary judgment dismissing, with prejudice, the remaining counts of her four-count complaint against defendant Best Med Consultants, P.A. ("Best Med").1 Plaintiff alleged Best Med tortiously interfered with her contractual relationship with her long-term disability provider, defendant LINA, a subsidiary of Cigna Group Insurance ("CIGNA"), and engaged in insurance fraud. Judge Susan L. Claypoole granted summary judgment in favor of defendant, finding no basis for either claim as a matter of law. We affirm.

Plaintiff sustained a work-related injury while employed as a nurse at Catholic Health East's Saint Francis Medical Center in Trenton. She sustained injuries to her head, right shoulder, and hips. She underwent rotator cuff surgery, after which her treating specialist, Dr. George Stollsteimer, an orthopedic surgeon, placed lifting, pushing, and pulling restrictions upon her. In addition, he restricted plaintiff from engaging in activity above her shoulder height and from engaging in any repetitive use of her right shoulder. He opined that plaintiff could no longer work in her previously assigned nursing position, could not lift more than one or two pounds, and had limited use of her shoulder. He concluded her restrictions were permanent and expressed that she would more than likely be unable to return to work as a nurse.

In November 2008, the Social Security Administration declared plaintiff fully disabled. Through a long-term disability policy issued to her employer by LINA, plaintiff applied for and was awarded long-term disability benefits. Under the terms of the policy, LINA was required to pay specified benefits to plaintiff over time, provided she demonstrated proof of total disability. The benefits paid to plaintiff under the LINA policy were remitted to her from Cigna.

In 2010, LINA initiated an investigation of plaintiff, which included surveillance of plaintiff conducted by Photo Fax, Incorporated. LINA's investigative report, provided to Cigna, included surveillance and film of plaintiff from September 29, 2010 through October 1, 2010, and included comments about plaintiff using her right arm to push a stroller, opening and closing her car and truck door, using her right arm to talk into a cell phone, and adjusting a lawn decoration. Cigna had previously referred plaintiff for a functional capacity evaluation, which was performed on September 30, 2010. The results of that evaluation reported "decreased right upper extremity shoulder and elbow strength and active range of motion."

By letter dated January 12, 2011, Cigna notified plaintiff that she would be required to undergo an independent medical examination ("IME") as a prerequisite to its evaluation of her long-term disability claim. Cigna specifically advised plaintiff that the contract under which her long-term disability benefits claim was covered contained the following condition: "The Insurance Company, at its expense will have the right to examine any person for whom a claim is pending as often as it may reasonably require."

Cigna retained Dr. Timothy Pinsky, the principal owner of Best Med, to perform the IME. Dr. Pinsky, who is board certified in occupational medicine, preventive medicine and family practice, issued a report in which he opined, plaintiff "would be able to return to the workforce with [the light to medium physical demand] restrictions. She does appear more functional than she would otherwise portray."

Following this examination, Cigna notified plaintiff, by letter dated February 25, 2011, that upon completing its review, it determined "that [plaintiff] no longer remain[ed] disabled as defined by your contract," which Cigna noted defined disabled as:

The Employee is considered Disabled if, solely because of Injury or Sickness, he or she is either:

1. unable to perform all the material duties of his or her Regular occupation or a Qualified Alternative: or

2. unable to earn 80% or more of his or her Indexed Covered Earnings.

After Disability Benefits have been payable for 24 months, the Employee is considered Disabled if, solely due to Injury or Sickness, he or she is either:

1. unable to perform all the material duties of any occupation for which he or she is, or may reasonably become, qualified based on education, training or experience; or

2. unable to earn 80% or more of his or her Indexed Covered Earnings.

Based upon the IME, Cigna determined plaintiff could, among other activities, "function in the sedentary to medium duty level of physical demand[,]" could "sit, stand and walk without restriction. . . . use [her] upper extremity on a[n] occasional basis for overhead reaching . . . . could lift and carry up to 20 pounds frequently and occasionally up to 50 pounds." Cigna concluded the "medical information on file does not support a functional impairment that would prevent [plaintiff] from working in any occupation." LINA terminated her benefits effective May 8, 2011.

Plaintiff filed her complaint against defendants in August 2011. Upon completion of discovery, Best Med moved for summary judgment, arguing plaintiff failed to satisfy the requisite elements of a claim for tortious interference or insurance fraud. Following oral argument, Judge Claypoole granted Best Med's motion. She found its actions did not constitute actual interference with the contract and that plaintiff's proofs did not raise a genuinely disputed issue of fact that Best Med acted maliciously or intentionally interfered with plaintiff's contractual relationship with LINA. The present appeal followed.

Our review of a trial court's grant or denial of a motion for summary judgment is de novo. Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005). Under our de novo standard of review, we employ the same standard as that of the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Our analysis requires that we first determine whether the moving party has demonstrated there are no genuinely disputed issues of material facts, and then we decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in the "light most favorable to the non-moving party[.]" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Because our review of issues of law is de novo, we accord no special deference to the motion judge's legal conclusions. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

To establish a claim for tortious interference with a contract, a plaintiff must prove: "(1) actual interference with a contract; (2) that the interference was inflicted intentionally by a defendant who is not a party to the contract; (3) that the interference was without justification; and (4) that the interference caused damage." Russo v. Nagel, 358 N.J. Super. 254, 268 (App. Div. 2003).

Interference with a contract is intentional if the actor desires to bring it about or if he knows that the interference is certain or substantially certain to occur as a result of his action. An individual acts with malice when he or she intentionally commits a wrong without excuse or justification. However, the fact that a breaching party acted to advance its own interest and financial position does not establish the necessary malice or wrongful conduct.

[Ibid. (citations and internal quotation marks omitted).]

Here, Judge Claypoole properly concluded plaintiff failed to establish any of the requisite elements of a tortious interference claim. First, plaintiff produced no evidence that Best Med, through Dr. Pinsky, actually interfered with plaintiff's contract with LINA. Under the terms of the contract, as Cigna advised plaintiff, the "[i]nsurance company, at its expense," had the right to have plaintiff examined while her claim was pending "as often as it may reasonably require." Best Med was retained by the insurance company to conduct the IME. To accept plaintiff's argument would deprive LINA that which it bargained for in its agreement with plaintiff's former employer, namely, the right to have claimants examined. Alternatively, plaintiff suggests that any IME conclusion contrary to an opinion expressed by her treating physician must be viewed as interfering with her right to receive benefits under the policy. She was, however, additionally advised in the February 25, 2011 letter that she had the right to "submit written comments as well as any new documentation you wish us to consider." That information could have included "physician's office notes, hospital records, consultations, test result reports, therapy notes, physical and/or mental limitations, etc." Plaintiff did not avail herself of this opportunity. Instead, she commenced an action against Best Med.

Because plaintiff failed to establish the first element of a claim for tortious interference, we need not address the remaining elements, beyond noting plaintiff presented no evidence that Best Med's intentional performance of an IME of plaintiff was anything more than its contractual arrangement with LINA. Similarly, because LINA retained Best Med to perform the IME, it was justified in performing the evaluation. Additionally, plaintiff's loss of long-term disability benefits was not due to any action on the part of Best Med. Rather, her benefits were discontinued because LINA determined she no longer was disabled within the terms of the policy.

Finally, although plaintiff additionally pursued a claim of insurance fraud against Best Med, which Judge Claypoole also found lacking in merit, plaintiff has not advanced any argument in this appeal challenging the judge's ruling on this claim. We have no basis to consider an issue, which has not been briefed, and, accordingly, deem this issue abandoned. See Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2014); see also Gormley v. Wood-El, 422 N.J. Super. 426, 437 n.3 (App. Div. 2011), leave to appeal granted, 210 N.J. 25 (2012); 539 Absecon Blvd., L.L.C. v. Shan Enters. Ltd. P'ship, 406 N.J. Super. 242, 272 n. 10 (App. Div.), certif. denied, 199 N.J. 541 (2009) (portions of final judgment set forth in notice of cross-appeal but not briefed deemed abandoned); see also Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived.").

Affirmed.

1 Plaintiff's three-count complaint also named Life Insurance Company of North America ("LINA"). Counts one and two asserted claims of breach of contract and bad faith against LINA. Prior to disposition of the summary judgment motion, plaintiff and LINA settled their differences, resulting in the dismissal, with prejudice, of those two counts.