Cross–Respondents, v. Cross–Appellant. (2011)

In this automobile accident case, plaintiffs Dawn and Octavio Zuniga appeal from a final judgment dismissing their complaint for underinsured motorist (UIM) benefits following a jury verdict.¹  Defendant Met Life Auto & Home (Met Life) cross-appeals from the trial judge's denial of its motion in limine for a declaration that the verbal threshold applied.   Because we affirm the final judgment, we need not address Met Life's cross-appeal.

Met Life insured plaintiffs' automobile under an automobile insurance policy, which noted that the lawsuit threshold applied to personal injury protection, bodily injury liability and uninsured/underinsured motorists bodily injury.   In April 2003, plaintiffs allegedly sustained injuries as the result of a three-car collision in Pennsylvania.   They filed a complaint in Pennsylvania against the tortfeasors, Pennsylvania residents, and they each settled.   They then filed a complaint against Met Life for underinsured motorist benefits.

At trial, Dawn described the collision as a “big impact” and said the damage to her vehicle was “serious.”   To counter this testimony, over plaintiffs' counsel's objection, defense counsel asked Dawn if she agreed with the police officer's notation in his police report that her vehicle sustained minor damage.   She disagreed.   The trial judge then permitted plaintiffs' counsel to show Dawn the vehicle damage estimate from an appraisal company to refresh her recollection about the damage to her vehicle.   Dawn then testified that “[t]he front part of the car was damaged, the whole front.   We had to do a lot of repair in the front.   And then when we were hit in the back the back also suffered damage.”

During summation, defense counsel said, without objection, “[i]f you believe that the plaintiffs sustained all of these injuries as a result of this minor accident, that was confirmed to be minor, and you heard the testimony that it was minor, or that there was some other reason for ․ that's for you to decide.”

In this appeal, plaintiffs contend the trial judge committed reversible error by permitting use of the hearsay police report on Dawn's cross-examination.   They also contend defense counsel's summation comment had the capacity to mislead the jury to believe the accident was minor and effectuated a miscarriage of justice.   We disagree with these contentions.

Met Life concedes the police report was inadmissible hearsay but argues the error was harmless.   We agree.   Dawn disagreed with the police officer's notation that her vehicle sustained minor damage.   She described the accident as a “big impact,” the vehicle's damage as “serious,” and she testified the vehicle sustained damage to the back and the “whole front.”   The jury, thus, heard evidence the accident was not minor.   In light of the totality of the evidence, there is no reasonable doubt that the error contributed to the verdict.  State v. Macon, 57 N.J. 325, 338 (1971).

Further, we find no error, let alone plain error in defense counsel's comments on summation.   The judge properly instructed the jury that nothing the attorneys said is evidence, the attorneys' comments were not binding on the jury, the jurors were the triers of fact, and their decision must be based on the evidence presented, which consisted of witness testimony.   Jurors are presumed to follow the court's instructions where, as here, there is no evidence demonstrating otherwise.  Fitzmaurice v. Van Vlaanderen Mach. Co., 110 N.J.Super. 159, 165 (App.Div.1970), aff'd, 57 N.J. 447 (1971) (citing Clark v. Piccillo, 75 N.J.Super. 123, 133 (App.Div.1962)).

The final judgment is affirmed.   Met Life's cross-appeal is dismissed as moot.

FOOTNOTES

FN1. Plaintiffs settled with the tortfeasors for their policy limits.   The jury awarded each plaintiff damages in amounts less than their settlement.   Because defendant was entitled to a credit toward each plaintiff, the trial judge molded the verdict and entered a no cause..  FN1. Plaintiffs settled with the tortfeasors for their policy limits.   The jury awarded each plaintiff damages in amounts less than their settlement.   Because defendant was entitled to a credit toward each plaintiff, the trial judge molded the verdict and entered a no cause.

PER CURIAM