MARIA NAPOLITANO VS. MSS VENDING, INC. (L-5330-14 AND L-3916-14, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3119-17T4
MARIA NAPOLITANO,
Plaintiff-Respondent,
v.
MSS VENDING, INC., and
TONY HUDSON,
Defendants-Appellants,
and
GIUSEPPE NAPOLITANO,
Defendant-Respondent.
____________________________
Argued September 10, 2019 – Decided November 7, 2019
Before Judges Messano, Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket Nos. L-5330-14
and L-3916-14.
Jeffrey John Czuba argued the cause for appellants
(Hoagland Longo Moran Dunst & Doukas, attorneys;
Jeffrey John Czuba, of counsel and on the briefs).
Nicholas P. Scutari argued the cause for respondent
Maria Napolitano (Nicholas P. Scutari and Fruhschein
& Steward, LLC, attorneys; Nicholas P. Scutari, of
counsel and on the briefs; Carleen M. Steward, on the
brief).
Eric G. Kahn argued the cause for amicus curiae New
Jersey Association for Justice (Javerbaum Wurgaft
Hicks Kahn Wikstrom & Sinins, attorneys; Eric G.
Kahn and Annabelle Moskol Steinhacker, of counsel
and on the brief).
Stephen Jospeh Foley, Jr. argued the cause for amicus
curiae New Jersey Defense Association (Campbell
Foley Delano & Adams, LLC, attorneys; Stephen
Joseph Foley, Jr., on the brief).
PER CURIAM
Plaintiff Maria Napolitano was a passenger in a car driven by her father,
Giuseppe Napolitano, when it was struck in the rear by a truck driven by
defendant Tony Hudson and owned by MSS Vending, Inc. Defendant claimed
that after stopping partially in an intersection for a red light, Giuseppe
Napolitano placed his car in reverse and backed into defendant's vehicle.1
Plaintiff sought damages for pain and suffering based on alleged injuries to her
knees, shoulders, and spine. Additionally, plaintiff was insured under a standard
automobile insurance policy that included a $50,000 limit for personal injury
1
Giuseppe Napolitano settled his claims against defendant but remained a
defendant at trial on his daughter's complaint.
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2
protection (PIP) benefits. Plaintiff also sought more than $765,000 in medical
expenses that allegedly exceeded policy limits.
Following the close of discovery, defendant moved to bar plaintiff's
medical expense claim, asserting she failed to identify any witness who
possessed expertise or training in evaluating medical bills and who was
competent to testify as to their reasonableness. Defendant further argued that
the PIP fee schedule adopted by the Department of Banking and Insurance
(DOBI) should be applied to all medical bills, and any recovery should be
limited to the fee schedule amounts for services provided. Although the motion
was opposed, and defendant sought oral argument, the judge denied the motion
without granting argument or issuing any written or oral decision.
Defendant moved for reconsideration, plaintiff filed opposition, and
defendant again requested oral argument. The judge denied the motion without
argument and, in a brief written statement of reasons, concluded defendant failed
to establish any grounds for reconsideration. Relying on our decision in Haines
v. Taft, 450 N.J. Super. 295 (App. Div. 2017), the judge wrote plaintiff's
"medical expenses exceeding PIP limits were not inadmissible under N.J.S.A.
39:6A-12."
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The parties took the de bene esse deposition of Dr. Matthew Garfinkel, a
board-certified orthopedic surgeon, who operated on both of plaintiff's knees
and both of her shoulders. Plaintiff's counsel questioned Dr. Garfinkel about
the medical bills associated with his treatment, and defense counsel objected,
noting the bills contained amounts for the anesthesiologist and use of the
surgical facility. Immediately before trial, defendant moved in limine to exclude
those portions of Dr. Garfinkel's testimony regarding the medical bills. The trial
judge, who was not the pre-trial motion judge, denied defendant's request.
In addition to her own testimony and Dr. Garfinkel's videotaped
deposition, plaintiff produced the expert testimony of Dr. Paresh Rijsinghani, a
radiologist; Dr. Michael Robinson, a chiropractor; Dr. Wayne Fleischhacker, a
board-certified anesthesiologist and pain management specialist; and Dr. Marc
Cohen, a board-certified spine surgeon. Defendant testified and also offered the
videotaped deposition of Dr. Steven Fried, an orthopedic doctor.2
The jury concluded defendant was negligent, Giuseppe Napolitano was
not, and defendant's negligence was a proximate cause of the accident. It
2
We have not been furnished with a copy of Dr. Fried's testimony, but we gather
from defense counsel's closing argument that Dr. Fried opined plaintiff's injuries
were pre-existing and not aggravated by this accident, or degenerative in nature.
The judge ultimately ruled Mr. Napolitano was "unavailable" and the parties
read portions of his deposition testimony for the jury.
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4
awarded plaintiff $75,000 in damages for pain, suffering and loss of enjoyment
of life, and $383,000 for unpaid medical expenses, half the amount plaintiff
claimed. Defendant moved for a new trial, which the judge denied. This appeal
followed.
I.
Defendant argues that the judge's failure to grant oral argument on his
motion to bar plaintiff's claim for medical expenses, and the judge's failure to
provide a statement of reasons for her decision, requires reversal. Defendant
also contends that the actual testimony adduced at trial on the claim for medical
expenses was incompetent because it lacked "a [p]roper [f]oundation" and was
supported by only "[n]et [o]pinions[.]" As a corollary, defendant argues DOBI's
fee schedule provided a "[c]onclusive [r]easonableness [m]ethodology[,]" and
the trial court erred by refusing to limit plaintiff's claim to the amounts payable
to providers pursuant to the fee schedule. Lastly, defendant contends the judge's
decision to tell the jury defendant was insured was prejudicial and requires
reversal. We permitted the New Jersey Association for Justice (NJAJ) and the
New Jersey Defense Association (NJDA) to appear as amici curiae.
While the appeal was pending, the Court issued its decision in Haines v.
Taft, 237 N.J. 271 (2019). At the time, N.J.S.A. 39:6A-12 provided in relevant
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5
part: "Nothing in this section shall be construed to limit the right of recovery,
against the tortfeasor, of uncompensated economic loss sustained by the injured
party." "Economic loss" was and remains defined as "uncompensated loss of
income or property, or other uncompensated expenses, including, but not limited
to, medical expenses." N.J.S.A. 39:6A-2(k) (emphasis added). In reversing our
earlier judgment, the Court held that "interpreting [N.J.S.A. 39:6A-12] to allow
the admission of evidence of medical expenses falling between the insured's PIP
policy limit and the $250,000 PIP statutory ceiling transgresses the overall
legislative design of the No-Fault Law to 'reduc[e] court congestion[,] . . .
lower[] the cost of automobile insurance[,]' and most importantly, avoid fault-
based suits in a no-fault system[.]" Id. at 292 (first four alterations in original)
(citing Roig v. Kelsey, 135 N.J. 500, 516 (1994)). We asked the parties to
address the impact of the Court's holding on the issues in this case.
The landscape shifted again before we heard oral argument. The
Legislature passed, and the Governor signed, Senate Bill No. 2432 on August
15, 2019, which took effect immediately and "appl[ied] to causes of action
pending on that date or filed on or after that date." L. 2019, c. 244 § 2 (Chapter
244). Chapter 244 was a direct response to the Court's decision in Haines, and
amended N.J.S.A. 39:6A-12 by providing:
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Nothing in this section shall be construed to limit
the right of recovery, against the tortfeasor, of
uncompensated economic loss as defined by [N.J.S.A.
39:6A-2(k)], including all uncompensated medical
expenses not covered by the personal injury protection
limits applicable to the injured party and sustained by
the injured party. All medical expenses that exceed, or
are unpaid or uncovered by any injured party's medical
expense benefits [PIP] limits, regardless of any health
insurance coverage, are claimable by any injured party
as against all liable parties, including any self-funded
health care plans that assert valid liens.
[L. 2019, c. 244, § 1 (emphasis added).]
On the same day, the Legislature passed, and the Governor signed, Senate
Bill No. 3963, L. 2019, c. 245 (Chapter 245), with an effective date of August
1, 2019. Chapter 245 amended N.J.S.A. 39:6A-4.6(a), by requiring DOBI to
"promulgate medical fee schedules . . . for the reimbursement of health care
providers . . . for payment of unreimbursed medical expenses that are admissible
as uncompensated economic loss pursuant to [N.J.S.A. 39:6A-12]." L. 2019, c.
245 § 1. In relevant part, Chapter 245 also further amended N.J.S.A. 39:6A-12
by subjecting any claim for "unreimbursed medical expenses[,]" as opposed to
uncompensated medical expenses, "not covered by the [PIP] limits applicable to
the injured party and sustained by the injured party, including the value of any
deductibles and copayments incurred through a driver's secondary insurance
coverage and medical liens asserted by a health insurance company related to
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the treatment of injuries sustained in the accident . . . to the current automobile
medical fee schedules established pursuant to [N.J.S.A. 39:6A-4.6]." Id. at § 2.
Chapter 245 applies to all automobile accidents that occurred on or after August
1, 2019. Id. at § 3.
At oral argument, defendant clarified that he was not relying on the Court's
decision in Haines, and he, along with NJDA, agreed with plaintiff and NJAJ
that Chapter 244 applies, since this action was "pending" direct appeal on
August 15, 2019. The parties and amici also do not dispute that by its terms
Chapter 245 does not apply, since the accident occurred before August 1, 2019.
Defendant, however, reiterates his primary arguments that the motion
judge's failure to provide oral argument and adequate reasons for denying his
pre-trial attempt to bar plaintiff's claim for medical expenses requires reversal,
plaintiff's evidence of unpaid medical expenses was premised on the
inadmissible net opinions of the various treating doctors and their
unauthenticated billings, and DOBI's fee schedule is essentially presumptive
evidence of reasonableness. NJDA frames the issue as whether the trial
testimony, which essentially permitted the doctors to state the gross amount of
their bills, permitted plaintiff to mischaracterize the bills as "unpaid," when in
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fact there may have been payments made to, and accepted by, those providers
by plaintiff's PIP insurer or some other insurer.
Initially, we do not condone the motion judge's failure to accord defendant
oral argument, or her entry of an order devoid of any written or oral statement
of reasons. Rule 1:6-2(d) grants oral argument "as of right" for all civil motions
except those involving pre-trial discovery or the calendar. Rule 1:6-2(f) requires
the judge to indicate on the order whether her findings of fact and conclusions
of law that explain her disposition of the motion were oral or written, and when
they were rendered. As noted, the motion judge did neither when she denied
defendant's motion to bar plaintiff's claim for medical expenses. See Raspantini
v. Arocho, 364 N.J. Super. 528, 531–32 (App. Div. 2003) ("While a request for
oral argument respecting a substantive motion may be denied, the reason for the
denial of the request, in that circumstance, should itself be set forth on the
record.") (citations omitted).
Nevertheless, we are convinced these errors were not "clearly capable of
producing an unjust result," the standard governing our review for harmful error.
R. 2:10-2. That is so because at trial defendant had the opportunity and did
vigorously challenge the admissibility of evidence supporting plaintiff's claim
for medical expenses under then-existing N.J.S.A. 39:6A-12.
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We also reject defendant's contention that the DOBI fee schedule
contained presumptively reasonable amounts for medical services, and
plaintiff's claim was therefore limited to those amounts. When this case was
tried, N.J.S.A. 39:6A-4.6(a) provided that DOBI shall "promulgate medical fee
schedules on a regional basis for the reimbursement of health care providers
providing services or equipment for medical expense benefits for which payment
is to be made by an automobile insurer under [PIP] coverage . . . [or] by an
insurer under medical expense benefits coverage[.] " (emphasis added); see also
N.J.A.C. 11:3-29.1(b) (implementing the provisions of N.J.S.A. 39:6A-4.6 to
establish fee schedules "for the reimbursement . . . to be made by automobile
insurers under PIP coverage[.]"). The regulation makes clear that the fee
schedules do not apply to "[o]ther coverages contained in an automobile . . .
insurance policy[,]" or to "[a]ny other kind of insurance[.]" N.J.A.C. 11:3-
29.1(d)(1) and (2). At the time of the trial in this case, and because the accident
occurred prior to August 1, 2019, the DOBI fee schedules did not apply to claims
for medical expenses in excess of those paid under plaintiff's PIP coverage.
Chapter 245 amended the statute for all accidents that occurred after
August 1, 2019, and essentially adopted defendant's argument by making the
DOBI fee schedule applicable to "payment of unreimbursed medical expenses
A-3119-17T4
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that are admissible as uncompensated economic loss pursuant to [N.J.S.A.
39:6A-12]." However, it is undisputed that Chapter 245 does not apply to this
case.
We turn our attention then to defendant's substantive challenge to the
award of economic damages to plaintiff. Pursuant to Chapter 244, plaintiff was
entitled to recover from defendant "uncompensated economic loss . . . including
all uncompensated medical expenses not covered by the [PIP] limits applicable
to the injured party and sustained by the injured party." N.J.S.A. 39:6A-12. "All
medical expenses that exceed, or are unpaid or [are] uncovered by any injured
party's medical expense benefits [PIP] limits . . . are claimable . . . as against all
liable parties . . . ." Ibid. (emphasis added).
It is axiomatic that "[u]nder the common law, a person injured by the
negligent acts of another had an unqualified right to the recovery of medical
expenses from the wrongdoer." Haines, 237 N.J. at 297 (J. Albin, dissenting)
(citing Sotomayor v. Vasquez, 109 N.J. 258, 261 (1988)); Schroeder v. Perkel,
87 N.J. 53, 69–70 (1981); see also Model Jury Charges (Civil), 8.11A, "Damages
Charges — General, Medical Expenses (Non-Auto)" (approved Dec. 1996)
("The amount of payment is the fair and reasonable value of such medical
expenses."). We recognize the cases defendant cites in arguing the testimony of
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plaintiff's treating doctors failed to supply an adequate foundation for the
admission of plaintiff's medical bills into evidence. See, e.g., Sallo v. Sabatino,
146 N.J. Super. 416, 418 (App. Div. 1976) (affirming the trial court 's refusal to
admit the plaintiffs' hospital bills because they failed to properly show that "the
treatment was necessary and the charges [were] reasonable"); Hackensack Hosp.
v. Tiajoloff, 85 N.J. Super. 417, 419–20 (App. Div. 1964) (finding that when the
reasonableness of medical bills is at issue, "the books of account alone usually
cannot supply that proof").
However, here, all the testifying doctors were asked to examine the
medical bills and state whether the treatments provided were necessary and the
costs associated with those treatments reasonable. For example, Dr.
Rijsinghani, the radiologist, identified a bill for five MRIs performed on plaintiff
at a cost of $2000 each. He explained that the amount charged was based upon
"the geographic area . . . and the type of services . . . rendered[,]" and that the
charges were "customary fees in [his] industry." He further explained that he
knew "many people in the industry" and "what the customary charges [we]re."
Cross-examination only further solidified the doctor's conclusions based upon
personal knowledge and experience.
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Dr. Robinson, the chiropractor, identified a bill for $13,845 for his
services. He explained that he based his billing rate upon prior experience
working for other chiropractors, discussions he had with a "billing and
consulting firm[,]" conversations with other chiropractors, and the Association
of New Jersey Chiropractors. Dr. Robinson also explained that he bil led
plaintiff $57,959 for physical therapy performed in his office, and that he
formulated the billing amounts for these services in the same manner. On cross-
examination, Dr. Robinson acknowledged that a portion of his bill had been paid
by plaintiff's PIP carrier, and that he accepted much less than the billed amount.
Dr. Fleischhacker examined bills from his office, the surgical center
where he performed a discogram on plaintiff's spine, and the radiological center
that performed a CAT scan after the surgery. The doctor was part owner of the
surgical center, and described how its bills were formulated in consultation with
"advisors[] and a billing company . . . that charges the usual and customary
rates." He also explained in detail how he relied upon "health care accountants
. . . associations and organizations[,]" as well as a company that "surveys doctors
throughout different areas of the country" to identify his rates.
On cross-examination, Dr. Fleischhacker acknowledged that his bills
would "get reduced" when submitted to insurance companies in amounts that
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varied from company to company. He was not asked if any of the outstanding
bills were unpaid, and, on re-direct, he testified that his practice would "bill the
patient" for any unpaid balance "if the insurance . . . company [did not] pay the
whole bill[.]"
Dr. Cohen, who performed spinal fusion revision surgery on plaintiff,
identified a list of billings for his services, the hospital where the sur gery was
performed, and those of other providers associated with the surgery. The doctor
testified he had been performing surgery in conjunction with these providers for
eighteen years, and had personally arranged for some of them to assist in
plaintiff's surgery. He acknowledged these bills were "reasonable and
customary with respect to the procedures [he performs] on a regular basis." On
cross-examination, Dr. Cohen stated that he did not "accept insurance[,]" but did
not know if the hospital did.
Lastly, Dr. Garfinkel identified certain bills during his deposition,
including the bills for the surgical centers, which he partially owned, where he
performed the procedures on plaintiff's knees and shoulders, and the
anesthesiologists involved. The doctor identified the charges as "reasonable and
customary." On cross-examination, Dr. Garfinkel was asked "[w]hat
methodology . . . [he] use[d] to establish that the unpaid medical bills were fair
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and reasonable?" The doctor cited his "many years" of experience, "certain
publications . . . used . . . to evaluate appropriate billing both in-office, as well
as at a surgical treatment," and discussions within his medical group. The doctor
acknowledged that patients were billed the same amounts, without regard to
insurance, although he confirmed he was not always paid the billed amount by
an insurance company.
Contrary to defendant's repeated assertions before trial, at trial, and before
us at oral argument, whether medical charges reflect the fair and reasonable
value of services rendered does not require the opinion of someone with
expertise in billing practices or approved insurance rates of payment. We have
recognized that "health care providers and health agencies" themselves define
what are the "usual, reasonable and customary" charges for medical services.
Hahnemann Univ. Hosp. v. Dudnick, 292 N.J. Super. 11, 20 (App. Div. 1996).
"One would presume that an amount charged would be reasonable if it is within
a range customarily charged for such services within the community and the
amount charged compares with the amount charged by such physician to other
patients of his receiving similar treatment." Ibid. (quoting Thermographic
Diagnostics, Inc. v. Allstate Ins. Co., 219 N.J. Super. 208, 229 (Law Div. 1987)).
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Here, all the medical experts testified regarding their billings and the basis
for the reasonableness of the charges. Defendant vigorously challenged the
reasonableness of the bills, both by noting the doctors were frequently paid less
by insurance companies and lacked personal knowledge of the billing
procedures of associated providers. We acknowledge that some of the billings
were not performed by the doctors who testified, and, therefore, even if
admissible as business records excepted from the hearsay rule, see N.J.R.E.
803(c)(6), contained embedded hearsay. However, that issue is not before us. 3
In short, we conclude the medical providers were competent witnesses who did
not provide "net opinions" regarding the reasonable costs of the medical
treatment and procedures provided to plaintiff.
Lastly, we address NJDA's assertion that the trial judge permitted plaintiff
to mischaracterize the identified bills as "unpaid," when in fact there may have
been payments made to, and accepted by, those providers by plaintiff's PIP
insurer or some other insurer. As we understand the contention, NJDA asserts
3
At trial, defendant did assert the bills contained hearsay. However, before us,
defendant argues only that the doctors provided "[n]et [o]pinions" as to the
reasonableness of the bills, and "[e]ven assuming plaintiff . . . call[ed] . . .
providers' office managers or accounting department employees . . . th[ose]
individuals would lack personal knowledge of the foundational predicate . . . :
the reasonable value of the underlying medical services."
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the judge was required to mold the jury's award to credit any payments insurers
made to plaintiff's medical providers, including PIP benefits paid by her
automobile insurer. NJDA cites to "inconsistencies" in the billings contained in
defendant's appendix, and entries on some bills that reflect receipt of payments
from plaintiff's auto insurer and health insurer.
The record on appeal is quite confusing, and the trial transcripts do not
clarify the evidence actually adduced before the jury. During her testimony,
plaintiff was shown the bills attributed to the testifying doctors. In each
instance, she testified or acknowledged those were the amounts she owed. 4
Some of the billings in the appendix, which includes the PIP payment ledger, do
reflect receipt of insurance payments on plaintiff's behalf. The PIP payment
ledger likewise reflects some payments to the testifying doctors or their
associated entities.
N.J.S.A. 39:6A-12 is, at its core, "intended to prevent a double recovery
of damages[,]" Haines, 237 N.J. at 296 (J. Albin, dissenting), as is the collateral
source statute. See N.J.S.A. 2A:15-97.5 However, defendant never disputed
4
For example, in summation, plaintiff's counsel advised the jury that her claim
was for $765,666 in unpaid medical expenses. However, in her testimony,
plaintiff identified a number of billings totaling more than $900,000 as "unpaid."
5
N.J.S.A. 2A:15-97 provides:
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that plaintiff's PIP benefits were exhausted. Indeed, the trial testimony revealed
that several of the testifying doctors did not treat plaintiff until after $50,000 in
benefits were paid. More importantly, defendant never argued to the trial judge,
including when he moved for a new trial, that he was entitled to a reduction of
the jury's award of medical expenses. Nor has he made such an argument in his
brief. See Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2
(2019) (noting an issue not briefed is waived).
It is well-settled that "[a]n amicus curiae may not interject new issues, but
must accept the issues as framed and presented by the parties." James v. Arms
Tech., Inc., 359 N.J. Super. 291, 324 (App. Div. 2003) (quoting Fed. Pac. Elec.
In any civil action brought for personal injury or
death, except actions brought pursuant to the provisions
of . . . [N.J.S.A.] 39:6A-1 et seq.[], if a plaintiff receives
. . . benefits for the injuries allegedly incurred from any
other source other than a joint tortfeasor, the benefits,
other than workers’ compensation benefits or the
proceeds from a life insurance policy, shall be disclosed
to the court and the amount thereof which duplicates
any benefit contained in the award shall be deducted
from any award recovered by the plaintiff, less any
premium paid to an insurer directly by the plaintiff or
by any member of the plaintiff’s family on behalf of the
plaintiff for the policy period during which the benefits
are payable. Any party to the action shall be permitted
to introduce evidence regarding any of the matters
described in this act.
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Co. v. N.J. Dep't of Envtl. Prot., 334 N.J. Super. 323, 345 (App. Div. 2000)).
Given the lack of clarity in the documentary record, upon which NJDA's
argument is solely predicated, we refuse to remand the matter for further
consideration of the issue now raised.
II.
Lastly, we address defendant's claim that the judge committed reversible
error by advising the jury defendant was insured. The issue arose in the
following context.
As indicated, defense counsel cross-examined plaintiff's doctors as to
whether they had received payments from an insurance carrier, and whether it
was their practice to accept what was paid by a carrier even though it was less
than the billed amount. Plaintiff's counsel objected, arguing the cross-
examination implied that plaintiff was insured, but defendant was not. He asked
the judge to issue a curative charge pursuant to our holding in Tomeo v. Northern
Valley Swim Club, 201 N.J. Super. 416 (App. Div. 1985).
Defense counsel explained his cross-examination was intended only to
demonstrate the doctors' bills were inflated and not the reasonable costs of
medical services provided. The judge agreed with plaintiff, finding the cross-
examination unnecessarily injected the issue of insurance into the case. He told
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the jury that defendant was insured, but that the issue of insurance was not
relevant to the jury's decision. The judge repeated the same instruction in his
final charge before deliberations.
We review the trial court's decision to provide a curative instruction for
an abuse of discretion. State v. Kueny, 411 N.J. Super. 392, 403 (App. Div.
2010). "Accordingly, the trial court's decision . . . should not be disturbed on
appeal unless the decision was 'made without a rational explication, inexplicably
departed from established practices, or rested on an impermissible basis.'"
Estate of Kotsovska v. Liebman, 221 N.J. 568, 588 (2015) (quoting Flagg v.
Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
In Tomeo, defense counsel told the jury in summation that his client's
swim club was a "family[-]owned organization[,]" described the family
members affiliated with the corporation, and said the plaintiff wanted to take the
defendant's "money[,]. . . possessions[,]. . . [and] house[.]" 201 N.J. Super. at
419. In granting a new trial, we said:
When defense counsel creates a false impression
of no insurance, ordinarily the trial judge should first
give him the opportunity of correcting that impression
so that he may explain, if it is the case, that he raised
the inference inadvertently. Before the incident passes,
however, the trial judge must be satisfied that the jury
is unequivocally advised, by counsel or by the court,
that the defendant is insured but that they are to
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disregard that fact because it is not relevant to the issues
they are to determine.
[Id. at 421 (emphasis added).]
Here, it was a mistaken exercise of the judge's discretion to have provided
the instructions, because it is clear from the record that the cross-examination
did not create a false impression that defendant was uninsured. Indeed, the judge
never made such a finding, but rather decided to issue the curative charge
because cross-examination raised the issue of insurance in a general sense. In
short, while it was well within the judge's discretion to tell the jury the issue of
insurance coverage was irrelevant, it was a mistaken exercise of that discretion
to advise the jurors that defendant was insured.
Defendant contends the instructions were prejudicial and brought about
an unjust result, because the jury asked during deliberations whether the billings
reflected the outstanding balance due after insurance payments. However, the
jury's question most likely arose because of defense counsel's cross-
examination, not because of the curative charge. Most importantly, the judge
told the jury more than once, including in response to its question, that
consideration of insurance was irrelevant to its deliberations. We assume the
jury understood and followed these instructions. See, e.g., State v. Herbert, 457
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N.J. Super. 490, 503 (App. Div. 2019) ("The authority is abundant that courts
presume juries follow instructions."). There was no reversible error.
Affirmed.
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