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Werner v. Latham6/15/2000
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 23, 2000
On appeal from the Superior Court of New Jersey, Law Division, Essex County.
In Perreira v. Rediger, 330 N.J. Super. 455 (App. Div. 2000), we held that the collateral source rule of N.J.S.A. 2A:15-97 does not bar the health insurer of the plaintiff in a non-automobile, personal- injury negligence action from asserting a claim of reimbursement from the plaintiff or subrogation against the tortfeasor. Both in Perreira and in the consolidated companion case of Achor v. Oxford Health Plans, Inc. which we also then decided, there was no question but that the insurer's remedy would not affect the plaintiffs' right to a full recovery from the tortfeasor, that is, the fair value of their respective personal injury claim less the medical expenses that the health insurer had paid. Indeed, we emphasized in that opinion that our conceptual predicate was to assure that while plaintiffs are not, by virtue of the collateral source rule, entitled to recovery of their medical expenses both from the tortfeasor and from their own health insurers, they must nevertheless be assured, with respect to their other damage claims, of "the full extent of the single recovery to which they are entitled...." Perreira, supra, 330 N.J. Super. at 466- 467.
What we did not address in Perreira and must address on this appeal is the situation in which, for a variety of reasons, the settlement between the plaintiff and the tortfeasor, reasonable under the circumstances, is nevertheless insufficient to provide plaintiff with a full recovery. We hold that in such circumstances, the health insurer's reimbursement rights must yield to the plaintiff's right to full recovery.
Recitation of the undisputed facts here is itself sufficient to explain our holding. Plaintiff Robert Werner, whose wife Diane Werner sues per quod, sustained catastrophic injuries in an accident in which his motorcycle was involved in a collision involving three cars. Defendant Jerold P. Latham was the owner and operator of one of the cars, defendant Angelo F. Agosto was the owner and operator of the second car, and defendant Frank D. Petolino and defendant Michael A. Petolino were, respectively, the owner and operator of the third car. Suffice it to say that during the six months following the accident, plaintiff was hospitalized at both University Hospital in Newark and the Kessler Institute for Rehabilitation in West Orange and has since continued as an outpatient at Kessler. Because plaintiff was riding a motorcycle at the time of the accident, he was not entitled to personal injury protection benefits. N.J.S.A. 39:6A-4. Consequently, his health insurer, defendant Oxford Health Plans, Inc., paid his medical bills which amounted, at least when this matter was heard below, to about $510,000. Plaintiff's multiple disabilities include partial paralysis of all four limbs, and his working life--he was employed as a printer--appears to be over. He was 43 years old at the time of the accident.
Plaintiff brought suit against the tortfeasors and, by amended complaint, joined Oxford seeking a declaratory judgment ruling that under the facts of this case Oxford had no right, as it had claimed, to reimbursement out of any recovery plaintiff would obtain from the tortfeasors of the medical expenses it had paid on plaintiff's behalf. Plaintiff moved for summary judgment on the declaratory judgment count of the complaint. The motion was denied, the judge certified the ensuing order as final pursuant to R. 4:42-2, and plaintiff appealed. By our opinion under Docket No. A-3095-97T5, we dismissed the appeal as improvidently certified. W
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