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Law Division Judge rejects plaintiff’s attempt to circumvent his Child Support Lien and don't allow his attorney to reduce the attorney’s counsel fees so that plaintiff can receive more than the $2,000 allowed by statute. Plaintiff’s child support lien was greater than his recovery and if he settled he would only receive the $2,000 statutory amount. Plaintiff’s counsel sought a ruling to allow him to reduce his fees with the reduction going to the plaintiff not towards his outstanding child support lien. The balance of the settlement still went to the child support lien and that amount paid to probation did not change if the Court approved this request or not. Thus, Plaintiff was playing hard ball and refusing to settle if he did not receive more than the statutory amount of $2,000 of the $25,000 policy offer and his attorney did not want to be responsible for any monies the attorney paid to his client per a reduced contingency fee. Thus, they sought an Order allowing counsel to reduce the contingency fee and pay that reduction to the plaintiff in addition to the $2,000 plaintiff could receive per the statute as that was the only way the plaintiff would settle. The Court would not sanction that conduct and stated “that judicial policy of encouraging …settlement is trumped by the legislative intent in adopting … [the Child Support Lien Statue].” Plaintiff was told to either settle and receive $2,000 so that the balance of the settlement could go towards his child support lien or plaintiff could take his case to trial.

Judge Vena is a trial court judge in Essex County and he authored the unpublished opinion of Charles v Thomas. ESX-L-9911-13 holding that the actual Medicaid bill and not the grand total of all the bills go to the jury. Since unpublished appellate court decisions are not binding, his unpublished trial court decision is also not binding. But, the logic and reasoning used by Judge Vena can be reiterated and used to support the position that only “that” amount that has to be paid back is the actual amount that goes to the jury, not the total amount of the bills. Unfortunately, there are no Appellate Court decisions and that results in varying rulings/uncertainty as to what amount goes to the jury. Basically, it would be either the total amount and then the amount is molded after the verdict or the actual amount that has to reimbursed. Per Judge Vena and citing Caldwell v Haynes, 136 N.J. 422, 433 (1994), the plaintiff is to be made whole and is to be compensated for the actual loss; Medicaid is not a collateral source, per N.J.S.A. 2A: 15-97 so there is no double recovery; and expenses “incurred” means the amount that plaintiff is liable for, not the total amount of the bills. Finally, Judge Vena states that he is fully aware that R. 1:36-3 and what it provides with respect to unpublished opinions, but notwithstanding that rule, the Appellate Division has made it clear that while unpublished opinions are not binding, the trial courts are nevertheless permitted to consider the analyses and find them persuasive and use the analyses as guideposts in reaching conclusions. National Union Fire Ins. Co. of Pittsburgh v. Jeffers, 381 N.J. 13, 19 (App. Div. 2005). Thus Judge Vena used the Appellate Court’s unpublished opinion in Ribeiro v. Sintra, 2008 N.J. Super. Unpub. LEXIS 771 at *2, (App. Div. July 10, 2008) to further support his analyses and ruling. In Ribeiro, the plaintiff's medical bills were almost $179,000 but the providers accepted a little over $25,000 from plaintiff's health insurance company as payment in full. Plaintiff argued that the entire amount should go before the jury and the defense argued that the amount accepted as payment in full should be presented to the jury. The Appellate Division noted that the purpose of the collateral source rule, N.J.S.A. 2A: 15-97, is to prevent double recovery and the statue placed no restriction on the introduction or evidence of the total amount of medical bills incurred. Id. at *6, citing Dias v. A. J. Seabra’s Supermarket, 310 N.J. Super. 99, 102 (App. Div. 1998). Thus, in Ribeiro, the Appellate Division held that medical expenses incurred are the equivalent to the amount accepted by medical providers for the full payment of their services rather than the actual amount stated in the medical bills. Id. At *7. Thus, the analyses and persuasiveness of both Judge Vena’s trial court case and the unpublished Ribeiro appellate court case should be used as guideposts to argue that only the amount of the medical bills/lien that must be reimbursed is to go to the jury and that is the boardable amount and NOT the total amount of the bills incurred. BUT, a trial judge is free to reject that argument as we are not aware of any published appellate court cases that support the position that it is limited to the reimbursable amount. Please contact us with any questions about these unpublished decisions or if we can help you in any way.

In Lambert v. Travelers Indemnity Company of America, et. al., A- 1073-14T3,a recently published Appellate Division case, the Appellate Court ruled that for work related car accidents workers’ comp pays the medical bills; PIP is not applicable; the medical expenses are subject to the workers’ comp lien; and the medical bills go to the jury as part of the damages. Briefly, these consolidated appeals involved work-related auto accidents where workers’ comp paid the medical bills and the trial court agreed that PIP barred the medical bills from being introduced at trial and thus the medical expenses were excluded from the workers’ comp lien. The relevant statutes were N.J.S.A. 39:6A–12 (PIP) and N.J.S.A. 34:15–40 (workers’ comp). The appellate court specifically held: "… because workers’ compensation benefits are the primary source of recovery for injuries suffered by employees in a work-related automobile accident, and PIP insurers are relieved from the obligation to pay medical expenses under N.J.S.A. 39:6A-6, any recovery obtained by employees from third-party tortfeasors, whether through settlement, trial or otherwise, is subject to Section 40 liens under the WCA. We further hold that in any action by such employees against third-party tortfeasors, the evidential bar of N.J.S.A. 39:6A-12 does not apply.” Thus, the workers'comp lien must be reimbursed. Please call us if you have any questions about this case or if we can assist you in any way.

The Appellate Division in the unpublished case of Ferrante v NJM, A-3680-13T4, disagreed with the Trial Court's ruling that the high-low agreement capped the verdict at the Tortfeasor’s policy barring a UIM claim. The facts are very interesting as this was a 10/06 accident; a 1/11/11 jury verdict; and it was the day after the jury verdict, 1/12/11 that plaintiff's counsel faxed NJM, the UIM carrier, notifying NJM for the VERY first time about the lawsuit and that it was seeking UIM benefits. Prior to trial plaintiff entered into a high- low agreement of $25,000 to $100,000 for this verbal threshold case. The jury returned a $250,000 verdict. However all NJM was told was that the Tortfeasor’s carrier was willing to tender their $100,000 policy and counsel provided information regarding the Tortfeasor’s assets presumably to help speed up their decision. This was plaintiff's Longworth notice. Plaintiff's counsel did not advise NJM that the matter was tried pursuant to a high-low agreement and that a $250,000 verdict was rendered. It was only due to motion and trial practice that NJM became aware of what transpired. NJM initially took the position that the plaintiff was only entitled to $50,000 ($300,000 UIM limits minus $250,000 verdict), but plaintiff took the position that $200,000 was still available ($300,000 UIM limits minus $100,000 paid by tortfeasor). At no time did NJM “articulate that it had been prejudiced”. But due to trial delays NJM ultimately took the position that plaintiff could not pursue UIM as the $100,000 cap per the high low agreement was plaintiff's representation as to the full value of the case. The Appellate Division majority did not agree with this position and did not find that there was any agreement or stipulation that the actual value of plaintiff's damages was limited to $100,000. The Appellate Court further stated that there was no authority supporting the premise that the floor or ceiling amounts in a high-low agreement represent or are an admission of the party's opinion of the case value. Rather the agreement guaranteed plaintiff would recover at least a modest sum if the jury rejected his claim. There was nothing about the terms of the agreement that constituted an admission of the value of the damages. The agreement was a symbiotic one, it advanced each party's interests and it did not impair plaintiff's right to pursue UIM benefits. The failure to timely notify NJM did cause the Appellate Court to remand the case to the trial court to resolve the issue of any prejudice to NJM. Please feel free to contact us if you have any questions about this case or if we can assist you in any way.

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