137 A.3d 1204
N.J. Super. Ct. App. Div.2016Background
- On June 2, 2008 Stuart Sackman's car was rear-ended; he alleged permanent left-side injuries (notably left shoulder) and settled with the tortfeasor, then sought UIM benefits from NJM.
- NJM's policy invoked AICRA verbal-threshold: plaintiff must prove a "permanent injury" under N.J.S.A. 39:6A-8(a) to recover.
- At trial the jury (after ~20 minutes) found Sackman did not prove a permanent injury proximately related to the accident; the trial court denied a new trial.
- Medical record: plaintiff had remote left-shoulder/neck problems (including 2003 complaints) and prior shoulder treatment; he underwent arthroscopic shoulder surgery (labrum repair) in 2009. Treating and defense experts agreed surgery addressed the labral tear; treating surgeon testified there is some permanency (pain), defense experts testified functional recovery was achieved.
- Plaintiff moved pre-verdict to preclude the jury from deciding permanency (arguing hardware/surgery proved permanency as a matter of law); the motion was denied. Plaintiff also challenged brief jury deliberations and defense counsel’s reference to the tortfeasor as "defendant."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the jury should have been precluded from deciding permanency and the court should rule as a matter of law that injury is permanent | Sackman: surgical fixation/orthopedic hardware and treating surgeon's testimony establish permanency as a matter of law (citing Gilhooley) | NJM: evidence was disputed; reasonable jurors could find plaintiff recovered functionally; credibility issues exist | Denied — permanency was a contested factual issue for the jury under Rule 4:40-1 and AICRA standard |
| Whether short (~20 min) deliberation requires overturning the verdict as a miscarriage of justice | Sackman: brevity indicates bias or miscarriage of justice | NJM: no authority that brevity alone is miscarriage; verdict supported by evidence | Denied — brevity alone insufficient; argument lacks merit and cited authority |
| Whether defense counsel’s opening reference to the tortfeasor as "defendant" required a curative instruction or reversal | Sackman: misleading characterization in UIM suit (insurer is real defendant); requested instruction to clarify tortfeasor’s non-party financial exposure | NJM: identification of tortfeasor is ordinarily irrelevant in UIM trials; Bardis permits counsel/trial judge discretion | Denied — judge’s response adequate; Bardis controls and allows trial-court discretion |
| Whether plaintiff's appellate brief warranted sanctions for deficient briefing | Appellate counsel: (no persuasive authority/analysis presented) asserted errors | NJM/court: brief lacked relevant legal authority, failed to apply standards, and did not analyze controlling law | Sanction imposed — $200 payable by plaintiff’s appellate counsel to State (concurring judge would not have sanctioned) |
Key Cases Cited
- Gilhooley v. County of Union, 164 N.J. 533 (discusses permanency standard in TCA context)
- Frugis v. Bracigliano, 177 N.J. 250 (standard for directed verdict / Rule 4:40-1 review)
- Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (summary-judgment standard; whether evidence is one-sided)
- Bardis v. First Trenton Ins. Co., 199 N.J. 265 (UIM trials and whether insurer must be identified as defendant; trial-court discretion)
- Ames v. Gopal, 404 N.J. Super. 82 (permanency disputed → jury must decide)
- Krohn v. New Jersey Full Ins. Underwriters Ass'n, 316 N.J. Super. 477 (treats UIM action as substitute for tort action)