CHARLES HAYWOOD, ET AL. VS. RICKY HARRIS, ET AL. A-1120-09T3 7-2-10
Plaintiff appeals from the judgment entered after trial in
this uninsured motorist litigation brought against his carrier.
Plaintiff was subject to the "limitation on lawsuit" option
(LOL), N.J.S.A. 39:6A-8(a), and alleged a "permanent" injury, as
well as past and future lost wages based upon his inability to
return to his prior position as a union mason. Defendant
stipulated to liability, and the case was tried as to whether
plaintiff's injury was "permanent," and on causation and
damages. The jury concluded plaintiff's injury was not
permanent, but awarded plaintiff $75,000 in economic damages.
The jury interrogatory did not distinguish between an award for
past versus future loss of earnings.
Plaintiff's past lost wages were approximately $28,000, and
the judge granted defendant's request to mold the verdict and
enter judgment in that amount. Plaintiff contended that the
jury's award reflected past lost wages, as well as future lost
wages for a reasonable period of time, and that the award was
fully supported by the evidence.
We concluded that plaintiff's claim for future lost wages
was not barred as a matter of law simply because the jury
concluded the injury was not "permanent" within the meaning of
N.J.S.A. 39:6A-8(a). However we affirmed, concluding that
plaintiff had failed to adduce sufficient proof of a continuing
future wage loss.
We also concluded that the current model jury charge on
future loss of earnings should be modified in situations where
the plaintiff alleges a permanent injury and the LOL applies.
The jury should be specifically instructed that in the event it
concludes that plaintiff's injury is not permanent, it may make
an award for future loss of earnings, but the amount of any
award must be limited to only those earnings "lost during a
reasonable period of recuperation and recovery." Miskelly v.
Lorence, 380 N.J. Super. 574, 578 (App. Div.), certif. denied,
185 N.J. 597 (2005).
