In the well known Rova Farms decision, the New Jersey Supreme Court held that a liability insurer who in bad faith refuses to accept a plaintiff’s reasonable settlement demand, will be liable for the amount of any judgment above and beyond the insured’s policy limits. In an opinion approved for publication on June 30, 2008, the Appellate Division held that a UM carrier cannot be exposed to Rova Farms liability in refusing to settle with an insured. The court in Taddei v. State Farm, was faced with a case where the plaintiff/insured made a settlement demand after non-binding UM arbitration of $87,500. A jury eventually awarded the plaintiff $2.6 million. However, the trial judge molded the verdict to the $100,000 policy limit. On appeal , the plaintiff argued that the carrier had acted in bad faith, in light of the refusal to settle. The Appellate Division was un-persuaded, reasoning that the Rova Farms bad faith model is inapplicable in the UM and UIM context because the insured is the claimant and, therefore, not exposed to an award in excess of the policy limit.
Claimant Orsola Doria, sixty-eight years old at the time of her alleged “accident” filed occupational and specific accident claims against her employer alleging that as a result of her employment as a housekeeper for five years she was totally and completely disabled as a result of the following:
“occupational exposure to dust, fumes, pulmonary irritants, bending, lifting, repeated manipulations, standing, stress, strain, adverse environment causing occupational conditions and diseases . . . .she alleged impairment to her “chest, lungs, nose, throat, neck, back, knees, arthritis, nervous system, neurosis, and complications arising therefrom.”
The claimant presented the testimony of three doctors. Dr. Ahmad, an orthopedist, diagnosed “spinal sprain, arthritis, and [muscle pain.” Dr. Latimer, a psychiatrist, diagnosed her as suffering from “post concussion syndrome, chronic headaches, fatigue and depression” and Dr. Friedman, found that the claimant had “chronic bronchitis.”
Respondent’s doctors found no disability except for 2.5% of permanent partial total for “post-concussion syndrome” related to an incident where a ceiling tile fell on the claimant’s head.
After eight (8) trial days, the Judge of Compensation found a permanent partial disability of 30% of partial total and dismissed the petitioner’s claims against the Second Injury Fund. The claimant appealed.
The Appellate Panel cited the standard of review (exhaustively discussed in our book) found in Tlumac v. High Bridge Stone, stating that the appellate court will not disturb the fact findings of a Judge of Compensation provided they “are supported by substantial credible evidence in the record and not so wide off the mark as to be manifestly mistaken.”
Post-Tlumac, the ‘threshold’ for appellate review has been raised. A party seeking review of the decision of a Judge of Compensation has a difficult bar to surmount. The decision in Doria (above) should lend support to a Judge applying common-sense to a trumped-up claim.
Case: Doria v. Bayonne Hospital, A-4874-06T1 (App. Div. decided June 27, 2008)(Judges Coburn, Chambers, and Waugh, unpublished as of blog date). Attorneys for the claimant: Freeman & Bass.