Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee, GP and was a speaker at the ABA Annual Meeting. To schedule a confidential consultation, call us or New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500,

www.njlaws.com

Wednesday, September 28, 2011

Is Failure by Officer to Sign Ticket a Defense to DWI? No, State v. Fisher __NJ__ (2004)

Is Failure by Officer to Sign Ticket a Defense to DWI? No, State v. Fisher __NJ__ (2004)

The unsigned ticket, which provided the defendant with adequate notice of the nature of the alleged offense and the date, time, and location of his required court appearance, does not require dismissal of the DWI charge. The ticket not only contained all of the vital information, but also the evidence does not suggest that the officer acted in bad faith in issuing it. Based on those facts, the absence of the officer's signature is an amendable defect under Rules 7:2-4 and 7:14-2. Although there is no reason to doubt that the officer had probable cause to issue the DWI ticket, the matter is remanded to the municipal court to allow the State to supplement the record by having the officer submit an affidavit or provide testimony indicating his belief that probable cause existed, or by offering into evidence a signed copy of the traffic ticket.Hire a Trial Attorney To Represent You If Charged With a Criminal Or Serious Motor Vehicle Matter Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office also helps people with traffic/municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended. Criminal and Motor vehicle violations can cost you. You may have to pay high fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV/MVC [Motor Vehicle Commission] or have your license suspended. Don't give up!The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal and motor vehicle violations. When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV/MVC surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule a free in-office consultation if you need experienced legal representation in a traffic/municipal court matter.Our website kennethvercammen.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations. Call the Law Office of Kenneth Vercammen at 732-572-0500 to schedule a free in-office consultation to hire a trial attorney for Criminal/ DWI/ Municipal Court Traffic/ Drug offenses.




Is a Probate Necessary?

Is a Probate Necessary?

Probate is the formal legal process that gives recognition to a will and appoints the executor or personal representative who will administer the estate and distribute assets to the intended beneficiaries. The laws of each state vary, so it is a good idea to consult an attorney to determine whether a probate proceeding is necessary, whether the fiduciary must be bonded (a requirement that is often waived in the will) and what reports must be prepared. Most probate proceedings are neither expensive nor prolonged.

Irreconcilable Differences Divorce Legislation Becomes Law


Irreconcilable Differences Divorce Legislation Becomes Law

On January 20, 2007, Governor Corzine signed into law S-1467 (Scutari/Gill/Bateman/Cohen/Vas), which adds news causes of action for divorce based on irreconcilable differences. The new law is P.L. 2007, c.6 and takes effect immediately. Kenneth Vercammen is a member of the NJ State Bar Association, which had been working with several key groups and lobbied successfully to seek passage of this legislation since 1995 Commission to Study the Law of Divorce issued its report. The commission recommended a new ground for divorce of irreconcilable differences to alleviate the need for allegations as may be used to substantiate other causes. The allegation which may be of a nature that set a tone of bitterness and accusations.”Additional information can be obtained from the Legislature’s website www.njleg.state.nj.us


Insurance - Automobiles - Cucccurillo v. Galinsky (A-1345-08T3)

Insurance - Automobiles - Cucccurillo v. Galinsky (A-1345-08T3)

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0233-08T30233-08T3

A-1345-08T3

CARMELA A. CUCCURULLO,

Plaintiff-Respondent,

v.

ESMIRA GALINSKY,

Defendant-Appellant,

and

AMICA MUTUAL INSURANCE

COMPANY,

Defendant-Respondent.

_________________________________

CARMELA A. CUCCURULLO,

Plaintiff-Respondent,

v.

AMICA MUTUAL INSURANCE

COMPANY,

Defendant-Appellant,

and

ELMIRA GALINSKY,

Intervenor.

________________________________________________________________


Argued October 27, 2009 - Decided

Before Judges Carchman, Parrillo and

Ashrafi.

On appeal from the Superior Court of New

Jersey, Law Division, Bergen County,

Docket Nos. L-6232-06 and L-6069-08.

Susan L. Moreinis argued the cause for

appellant in A-0233-08T3 and intervenor

in A-1345-08T3 Esmira Galinsky.

Donald A. Caminiti argued the cause for

for respondent Carmela Cuccurullo in

A-0233-08T3 and A-1345-08T3 (Breslin &

Breslin, attorneys; Mr. Caminiti, on the

brief).

Denise M. Luckenbach argued the cause for

respondent in A-0233-08T3 and appellant in

A-1345-08T3 Amica Mutual Insurance Company

(Sellar Richardson, attorneys; Ms. Luckenbach,

of counsel and on the brief).

PER CURIAM

In this automobile personal injury action, a jury awarded plaintiff Carmela A. Cuccurullo compensatory damages in the amount of $625,000. The jury concluded that defendant Esmira Galinsky was 100% negligent and further found no negligence on the part of a phantom driver who was allegedly also involved in the accident. The phantom driver was represented by an attorney provided by Amica Mutual Insurance Company (Amica), plaintiffs uninsured motorist (UM) carrier. Defendant Galinsky appeals from the jury verdict alleging various trial errors (A-0233-08T3). In a related appeal (A-1345-08T3), which we now consolidate for the purpose of this opinion, Amica asserts that the trial judge erred in ordering it to provide underinsured motorist coverage (UIM) for plaintiffs benefit. The impact of that order was that since Galinskys coverage was limited to $100,000, Amica was obligated to pay $200,000 of its UM/UIM $300,000 coverage to plaintiff. We affirm both the jury verdict in the Galinsky appeal as well as the order obligating Amica to provide UIM coverage.

These are the relevant facts adduced at trial. On November 20, 2004, plaintiff was operating her vehicle in the right-hand lane traveling eastbound on New Bridge Road in West Milford, a four lane road, with two lanes in each direction. Galinsky was driving westbound in the left-hand lane.

According to Galinsky, a phantom vehicle suddenly appeared in front of her. She did not know where the vehicle came from and stated: "I didnt see any cars. Thats why I assumed that [the phantom vehicle] came from Lynwood Street . . . ." Her daughter, Diana, a passenger in the vehicle saw, the vehicle come from the side but could neither identify the street that it came from nor whether the street was controlled by a stop sign. Galinsky applied her brakes. As a result, she lost control of her vehicle, started to spin, and crossed the double yellow line as well as two lanes of traffic, stopping on the opposite side of the road with her vehicle pointed in the opposite direction.

Plaintiff recalled that defendants vehicle crossed in front of her vehicle into her lane, causing her to "slam" on her brakes and collide with defendants vehicle. Her next recollection was that of a police officer asking her if she was okay.

Plaintiff was transported to the hospital where she complained of pain in her knee, face and finger; she was released later that day. That night, however, she began to experience pain in her neck and back.

Plaintiff sought treatment with Kenneth Ermann, D.C., who ordered an MRI of her cervical and lumbar spines. The MRIs revealed two disc herniations in plaintiffs cervical spine, which put pressure on her spinal cord, and one disc protrusion in her lumbar spine, which also put pressure on her spinal cord.

Plaintiff also consulted with a neurologist, Dr. Rosenbaum, who performed an EMG which confirmed Dr. Ermanns MRI findings. According to Dr. Ermann, the objective findings supported plaintiffs subjective complaints of pain and discomfort - the doctor characterizing this as a "textbook case." Dr. Ermann also noted that plaintiff had "no significant prior . . . injuries to her neck and back," and that her injuries were caused by the accident and were permanent. Utilizing the "Guides to Evaluation of Permanent Impairment," (published by the American Medical Association), Dr. Ermann concluded that plaintiff had a 17% whole person impairment, meaning she is "most likely to have consequences throughout her life with activities that would not have caused consequences had she not suffered these injuries."

Defendant produced Michael Meese, M.D., an orthopedist who saw plaintiff following the accident. Dr. Meese reviewed the MRI of plaintiffs cervical spine noting the disc herniations at C4-C5 and C5-C6, which put pressure on the spinal cord, causing an indentation. He also reviewed the MRI of plaintiffs lumbar spine, which revealed a disc protrusion at L5-S1, which impinged on the nerve roots. He, too, opined that the injuries to plaintiffs cervical discs were caused by the accident and are permanent in nature.

Dr. Meese also examined plaintiffs knee and ordered an MRI, which "revealed a tear in the posterior horn of the meniscus, a grade one sprain of the medial lateral ligament, edema in the subcutaneous tissues . . . ." He concluded that surgery was required for her knee, which he performed on April 12, 2005. During the surgery, Dr. Meese noted the tear in the medial meniscus which was revealed in the MRI, as well as a tear on the lateral meniscus. The corrective surgery involved shaving down the cartilage, which "diminished [its] size and compromised [] its function." Dr. Meese concluded that, in his opinion, the injuries to plaintiffs knee were caused by the accident. He offered that, "[a]lthough shes had a satisfactory outcome, she has had a permanent injury to her knee. . . . [L]ong-term result, we do know that does predispose a patient to, especially a young, active individual, to developing posttraumatic arthritis . . . So shes at increased risk for that." Dr. Meese has not seen plaintiff since July 13, 2005.

Defendant produced its expert witness, Charles Carozza, M.D. In the course of his testimony, Dr. Carozza indicated that he was retained by the Center for Orthopedics (CFO) to perform an evaluation of plaintiff. CFO medical services is an organization of physicians and medical experts who conduct physical examinations and file reviews for claims management and resolution, providing services in New Jersey and New York. U.S. Medicare Consultants, L.L.C. (U.S.M.C.) is a national affiliate of CFO and provides independent medical examinations and medical record review services.

Plaintiffs counsel cross-examined Dr. Carozza regarding his relationship with CFO and presented, by way of overhead projection, a document he had Dr. Carozza read from, prepared by U.S.M.C. Over counsels objection, the judge permitted inquiry for the purpose of affecting the witness credibility. The proffer included available marketing information including a program entitled "Advantages for Physicians," which advertised training seminars on "How to be a More Effective Medical Witness," "How to Write More Persuasive, Defensible IME Reports," and "Advanced Testifying Skills for Experts." When asked about the documents, Dr. Carozza indicated that he had never seen them and could not identify them.

Plaintiffs counsel further questioned the witness including inquiries about the extent of his involvement with U.S.M.C.s training program. Dr. Carozza admitted to receiving a sample report together with guidelines for writing reports and a suggested report outline. He admitted that, if his findings during an exam were, in his opinion, within "normal limits", he used a "canned form" and that part of the report he allegedly authored following his examination of plaintiff was "canned."

Dr. Carozza also noted that his practice as an orthopedist has diminished, and he received more work from CFO/U.S.M.C. to the extent where, for the previous two years, he has earned approximately $140,000 per year working for CFO.

Following the close of evidence, the judge conducted a charge conference with counsel. The judge declined Galinskys request to charge the stop sign statute, N.J.S.A. 39:4-144, because "there was no specific testimony that there was, in fact, the stop sign governing the direction of travel of this unknown or phantom vehicle."

The judge did include a charge as to careless driving, N.J.S.A. 39:4-97, as to both defendant and the phantom driver, but no additional statutory requests were presented including the right turn statute, N.J.S.A. 39:4-123(a).

Concerning damages, the judge instructed the jury:

Damages may not be based on conjecture or speculation, or passion or sympathy.

. . . .

This measure of damages is what a reasonable person would consider to be adequate and just under all the circumstances to compensate the plaintiff . . . .

. . . .

The law does not provide you with any table, schedule or formula by which a persons pain and suffering, disability, impairment, loss of enjoyment of life may be measured in terms of money. The amount is left to your sound discretion. You are to use your discretion to attempt to make the plaintiff whole, so far as money can do so based upon reason and sound judgment without any passion, prejudice, bias or sympathy. . . .

Sympathy is an emotion which is normal for human beings. No one can be critical of you for feeling some degree of sympathy in this case. However, that sympathy must play no part in your thinking and any discussion that you reach in the jury room . . . .

Your duty is to decide this case impartially and a decision based upon sympathy, passion, bias or prejudice would violate that duty.

During his summation, plaintiff asserted a "time-unit" argument and said:

Let me give you an example . . . All of us have been to a dentist, weve all probably had teeth drilled. You can go to a dentist and you can get a cavity filled and, you know, youve really got a choice, you can take novocaine, or you cannot take novocaine and you can endure some pain, if you just give some thought to what you think a reasonable person would pay to avoid that hour, you may be able to give yourself some sense over 143,000 hours of what may be a fair and an honest verdict on behalf of Carmella.

The judge, by way of the charge in response to this argument, charged the jury:

By way of illustration, counsel may ask you to think about pain and suffering when measured by a finite period such as hours, days or years. . . . Remember, ladies and gentlemen, that the suggestion that you view damages on a time unit basis is argument only and is not evidence.

As we noted, the jury returned a verdict of $625,000 in favor of plaintiff, finding defendant 100% negligent and finding no negligence as to the phantom driver. After denial of defendants various post-trial motions, this appeal followed.

On appeal, defendant asserts that the judge erred by failing to charge a stop sign violation, by failing to charge careless driving as to plaintiff, by failing to charge a right-turn violation, by permitting use of the U.S.M.C. documents during cross-examination, and by denying defendants post-trial motions for a remittitur. In addition, defendant challenges plaintiffs counsels comments during summation.

Defendant first challenges the failure of the judge to charge N.J.S.A. 39:4-144, a stop sign violation, which imposes a duty on a driver to stop at an intersection controlled by a stop sign and not proceed until "yielding the right of way to all traffic on the intersecting street which is so close as to constitute an immediate hazard." Ibid.

Motor vehicle statutes "establish standards of conduct for motorists on [New Jersey] highways, and, under usual circumstances, the violation of motor vehicle statutes is evidence of negligence." Ewing v. Burke, 316 N.J. Super. 287, 293 (App. Div. 1998) (citing Paiva v. Pfeiffer, 229 N.J. Super. 276, 280 (App. Div. 1988)). Where there is evidence "tending to establish that a vehicle was operated in violation of a motor vehicle statute," then a judge should charge the statutory duty to the jury, "in order to assist the jury in arriving�at the appropriate result." Id. at 294; see Fattohi v. Cardner, 318, 336 N.J. Super. 331 (App. Div. 1999) (holding that the trial judge committed plain error in failing to charge N.J.S.A. 39:4-123(b), which required defendant to turn her car into the left lane of the highway, and that the failure to charge the statute had the clear capacity of producing an unjust result).

Here, at the charge conference, defendant requested that the court submit a jury charge with respect to the phantom vehicle based on the stop sign statute. In opposing inclusion of the charge, counsel for Amica, representing the phantom driver, argued:

None of the witnesses testified definitively about a stop sign at this intersection. . . . But I believe that to the extent there was testimony elicited from one or two [of] the witnesses, potentially his witnesses, they had a general belief that there were stop signs on side streets.

Number two, I respectfully disagree with [defendants counsels] contentions with respect to his clients testimony. I dont think his client saw anything until that car was in front of her in her lane of travel.

With respect to Diana Galinsky, we undoubtedly are going to have a very different perception that were going to be addressing with the jury as to what Diana Galinsky actually testified she saw when she came to testify. I dont think there is any evidential basis for requesting that charge.

The trial judge agreed with Amica, opining that based upon the evidence submitted, the charge was not appropriate and, instead, charged the jury with respect to both defendant and the phantom vehicles obligations in accord with N.J.S.A. 39:4-97.

The trial judge, in declining the charge, specifically stated:

The general understanding that there were stop signs on those side streets doesnt mean that there was a stop sign on the street governing the direction of travel where the unknown or phantom vehicle was emerging from, [and] I decline to give that charge.

In denying defendants subsequent motion for reconsideration, the trial judge again set forth the basis of its decision, as follows:

More substantively, regarding the issue of the courts failure to charge N.J.S.A. 39:4-144, the stop sign statute, that argument likewise lacks merit. The court previously set forth its ruling at trial and on the motion for a new trial. Having now had the opportunity to peruse the transcripts of the trial testimony of both defendant, [Esmira] Galinsky and her passenger daughter, Diana Galinsky, it buttresses the courts reasoning for not charging N.J.S.A. 39:4-144.

Defendant, Esmira Galinsky testified that this phantom vehicle suddenly appeared in front of her and that she (defendant, Esmira Galinsky) did not see any cars and thats why she (defendant, Esmira Galinsky) assumed that it (the phantom vehicle) came from Lynnwood Street because she (defendant, Esmira Galinsky) did not see any car approaching her. []

Defendants daughter, who was 16 at the time of the accident, did testify that there was a street on the right-hand side and the car came out and cut my mom off. This witness could not state which street the car had come from nor that such street had a stop sign.[] Her testimony was simply that the phantom vehicle appeared not to stop. Not, as Mr. Dorsi suggests, that Diana Galinsky saw the phantom vehicle drive through a street which had a stop sign governing its direction of travel. Thus, the courts refusal to charge N.J.S.A. 39:4-144 was appropriate.

We agree with the judges analysis of the evidence. Both defendants and her daughters observations regarding a stop sign were based on assumptions rather than fact. Defendant did not see where the car came from, and her daughter could neither identify the street from which the car traveled nor whether there was a stop sign involved. As defendant noted: "I didnt see any cars. Thats why I assumed that [the phantom vehicle] came from Lynwood Street . . . ." There was no factual basis on which to base the stop sign violation. The trial judge did not err in denying the request.

We reach the same result regarding the turn statute, N.J.S.A. 39:4-123(a). This statute requires a driver making a right turn to make such turn "as close as practicable to the right-hand turn or edge of the roadway."

We first note that the charge was not requested; so we must consider this issue as plain error. In such circumstances, we will reverse only if there is evidence of "error clearly capable of producing an unjust result." R. 2:10-2. A possibility of an unjust result will not suffice. State v. Macon, 57 N.J. 325, 336 (1971). The possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Ibid.

Here, failure to include instruction under N.J.S.A. 39:4-123(a) was not plain error. The lack of factual basis for the stop sign charge also informs our decision here. There was no proof as to where the car came from, whether the vehicle was turning or intending to turn or as defendant stated: "I didnt see any cars. Thats why I assumed that [the phantom vehicle] came from Lynwood Street." In sum, there is no factual basis to implicate the turn statute.

Likewise, the judges refusal to charge the careless driving statute, N.J.S.A. 39:4-97, as to plaintiff was not error. Defendant argues that each driver, both defendant and plaintiff, "should have been burdened with the identical [careless driving] charge - either both subject to the careless driving charge or neither." Defendant supports this contention by pointing out that both drivers testified that a vehicle suddenly came into their lanes of travel - with respect to defendant, it was an unknown vehicle, and with respect to plaintiff, it was defendants vehicle.

N.J.S.A. 39:4-97 provides:

A person who drives a vehicle carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving.

Where there is evidence "tending to establish that a vehicle was operated in violation of a motor vehicle statute, the statutory duty should be charged to the jury in order to assist the jury in arriving�at the appropriate result." Ewing, supra, 316 N.J. Super. at 294.

Here, there is no such evidence that plaintiff drove carelessly. As plaintiffs counsel argued:

I think theres some confusion between the duty of an automobile driver to make observations which youre charging. And counsel can argue that Carmella [plaintiff] didnt make proper observations, but she certainly, by none of the evidence, did she do anything that was careless in any manner, way, shape or form. She was driving in her lane and all of a sudden she was confronted with a car that spun out in front of her. Theres nothing that she did that could reasonably be said to come under the careless driving statute. And I think it would be improper to charge that with respect to her.

The judge agreed with counsel and said:

I agree with [plaintiffs counsel] and Im going to incorporate all of his arguments as to why I should not charge the 39:4-97 against plaintiff as part of the comparative negligence. This accident happened in a split second. Plaintiff didnt see the vehicles involved, and in particular Ms. Galinskys vehicle. . . . I dont think plaintiff in this case did anything that would constitute careless driving. And as a result, most respectfully, maam, I decline to give that violation of the traffic act as to plaintiff.

This was correct. The parties were driving in opposite directions when defendants vehicle suddenly appeared before plaintiff after crossing two lanes of traffic. There was no evidence supporting the charge that plaintiff was driving carelessly.

We next focus on defendants application for a new trial or in the alternative for a remittitur. Pellicer v. St. Barnabas Hosp., 200 N.J. 22 (2009). In denying the application, Judge Russello commented:

Defendant Galinsky has a motion for a new trial or remittitur. The defendant Galinskys motion for a new trial is denied, because this Court has given due regard to the jury to pass upon, and assess, and evaluate the credibility of the witnesses. And it does not clearly and convincingly appear that there has been a miscarriage of justice.

The quantum of damages awarded by the jury is not so disproportionate to the plaintiffs injuries and her resulting disabilities, as to shock my conscience. Nor is the award so grossly excessive as to demonstrate any prejudice or any partiality, or any passion by the jury.

The plaintiff sustained some serious injuries. She had a protruded disc herniation at C-4, C-5 with extrinsic pressure on the anterior spinal cord. She had a protruded disc herniation at C-4, C-6. She had annular bulging of the posterior annular fibers at L-5, S-1. She had a tear of the posterior horn of the lateral meniscus, for which plaintiff had undergone surgery. She had a grade one sprain. She had other soft tissue injuries, which Im not even going to mention. She was treated primarily by two physicians. Dr. Erman[n], a chiropractor, and Dr. M[e]e[s]e, a[n] orthopedic surgeon, who had special training in knee trauma.

My notes reflect that Dr. M[e]e[s]e had testified that the damage to the plaintiffs cartilage is permanent. Her injury to the knee was permanent. The cartilage that was removed can never be restored, returned or regenerated. Dr. M[e]e[s]e further testified that as a result of this increased risk - strike that. He further testified that as a result of the increased risk, shes going to have post-traumatic arthritis. Shes likely to suffer further symptoms in her knee, and require further treatment.

Regarding her spine, Dr. M[e]e[s]e testified that the injuries to the spine, including the herniated discs in the cervical spine, and the bulging discs in the lumbar spine are permanent.

Dr. Erman[n] also testified that the injuries to the plaintiffs cervical and lumbar spine were permanent and would cause her pain, impairment, and disability for the rest of her life.

Plaintiff also produced the radiologist, Dr. Brownstein. He had indicated that MRI films revealed a protruded disc herniation at C-4/C-5, C-5/C-6 levels, with extrinsic pressure on the anterior spinal cord.

Dr. Charles Carozza, the defendants medical expert in orthopedics had appeared on behalf of defendant. And although he had disagreed with both doctors, the jury in this case had ample opportunity to evaluate the testimony of all of the doctors, and obviously, disbelieved Dr. Carozza. Believed the plaintiffs doctors.

The award of $625,000 is reasonable considering the nature and the extent of this young womens injuries. And does not warrant [] either a new trial or remittitur, especially considering the severity of their impact on her daily life. None at any presently, as she testified, but also in the future.

The jury also heard from the plaintiff, defendant, Esmira Galinsky, and Mrs. Galinskys daughter, on how this accident had occurred. And the jury, obviously, disbelieved the defendant Galinsky and her daughter, as to how this accident had occurred. And assessed liability of 100 percent against the defendant, Esmira Galinsky.

The defendants motion for a new trial is denied, as is the defendants application for a remittitur.

Calculating damages for pain and suffering is an "inherently subjective" process. Johnson v. Scaccetti, 192 N.J. 256, 280 (2007), and "the law can provide no better yardstick for [a jurys] guidance than [the jurors] own impartial judgment and experience." Ibid. The "measure of damages is what a reasonable person would consider to be adequate and just under the circumstances." Model Jury Charges (Civil), Damages-Personal Injuries: Disability, Impairment, Loss of the Enjoyment of Life, Pain and Suffering � 6.11F (Dec. 1996). Juries are given "wide latitude" when determining a verdict for non-economic damages. Ibid; see Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977).

In reviewing a jury verdict, a trial judge is "empowered to overthrow the jurys verdict and grant a new trial[,]" where a damages award appears, "clearly and convincingly" so excessive to constitute a miscarriage of justice. Johnson, supra, 192 N.J. at 280; R. 4:49-1(a). "Alternatively, in such circumstances, courts also are authorized to reduce or remit the damages." Johnson, supra, 192 N.J. at 280; see Fertile v. St. Michaels Med. Ctr., 169 N.J. 481, 492 (2001) (observing that a remittitur avoids the "unnecessary expense and delay" of a new trial); see also Baxter, supra, 74 N.J. at 595.

Because the jury is given such "wide latitude" in determining pain and suffering damages, "the standard for granting a new trial or remittitur is necessarily high." Johnson, supra, 192 N.J. at 281. A new trial should not be ordered "unless it is so clearly disproportionate to the injury" that it shocks the judicial conscience. Ibid. "The verdict must be wide of the mark and pervaded by a sense of wrongness" such that the trial court is "clearly and convincingly persuaded that it would be manifestly unjust to sustain the award." Ibid; see R. 4:49-1(a); Baxter, supra, 74 N.J. at 604. The fact that an award is generous will not provide sufficient grounds to remit the verdict where the award has reasonable support in the record. Jastram v. Kruse, 197 N.J. 216, 230 (2008) (citing Taweel v. Starns Shoprite Supermarket, 58 N.J. 227, 236 (1971), overruled on other grounds by Fertile, supra, 169 N.J. 481).

"On appeal, the standard of review for determining the excessiveness of a damages award is the same standard applicable to the trial court[.]" Johnson, supra, 192 N.J. at 282; McRae v. St. Michaels Med. Ctr., 349 N.J. Super. 583, 597 (App. Div. 2002) (noting that in determining whether the grant or denial of remittitur was proper, the court is bound by the same strictures as a trial court); see Baxter, supra, 74 N.J. at 596. The court must rely on the "totality of the evidence," viewed in a light most favorable to plaintiff. Johnson, supra, 192 N.J. at 181; Taweel, supra, 58 N.J. at 236. However, because, on appeal, review is confined to "the cold record," we must consider and defer to the trial judges "feel of the case" in ruling on the motion. Johnson, supra, 192 N.J. at 282. The "feel of the case factor," is the "only element distinguishing the standard governing appellate review from that controlling trial court reaction to a jury verdict." Ibid.

Here, the jury returned a verdict for plaintiff, finding defendant 100% negligent, and awarded damages in the amount of $625,000. We are satisfied that the judge considered the proofs before the jury and properly denied the motion and the remittitur. We recognize that the verdict was substantial, but the injuries sustained by plaintiff were not insignificant. Without question, they will have a substantial impact on her life.

There is ample "evidence from which a rational jury could have reached the verdict[.]" See Jafstram, supra, 197 N.J. at 235. Furthermore, although it may be considered generous, the jurys verdict is not so excessive to constitute a miscarriage of justice, in comparison with previous jury verdicts in accident cases. See, e.g., McRae, supra, 349 N.J. Super. at 601 (noting that a jury award of $1,175,000 against doctor who acted negligently in treating plaintiffs broken leg "may be considered generous, [but] it is not so disproportionate to the injury or resulting disability to constitute a miscarriage of justice"); Hinojo v. N.J. Mfrs. Ins. Co., 353 N.J. Super. 261, 267 (App. Div.) (upholding a judgment of $400,000 plus medical expenses of $4586.78, lost wages of $4650 and pre-judgment interest of $81,911.38, awarded to plaintiff who sustained a crushed finger against defendant designer of a safety guard on a metal punch press), certif. denied, 175 N.J. 76 (2002); Fertile, supra, 169 N.J. at 481 (sustaining a $5,000,000 damages award for infant against doctor who deviated from acceptable standard of care in failing to perform cesarean section in delivering infant causing partial paralysis to infants arm).

The "totality of the evidence," viewed in a light most favorable to plaintiff, supports a finding that the damages award rendered in the instant case are not so "wide of the mark" nor pervaded by a sense of "wrongness" such that the award need be reduced or reconsidered. Johnson, supra, 192 N.J. at 181.

Defendant next argues that plaintiffs counsel improperly "published" inadmissible documents to the jury during cross-examination of Dr. Carozza and during summation.

"[A]ny fact which bears against the credibility of a witness is relevant to the issue being tried," and a party has a right to have that fact laid before the jury in order to aid them in determining what credit should be given to the person testifying. State v. Pontery, 19 N.J. 457, 472 (1955); see State v. Martini, 131 N.J. 176, 255 (1993), overruled in part on other grounds by State v. Fortin, 178 N.J. 540, 646 (2004); State v. Silva, 131 N.J. 438, 444 (1993); Delgaudio v. Rodriguera, 280 N.J. Super. 135, 141 (App. Div. 1995) (observing that extrinsic impeachment evidence may include "defect of character" and "proof by others that material facts are otherwise than as testified to by the witness�under attack."). The trial judge is vested with "broad discretion" to determine the proper limits of examination of a witness credibility. Delgaudio, supra, 280 N.J. Super. at 142; State v. Engel, 249 N.J. Super. 336, 375 (App. Div.), certif. denied, 130 N.J. 393 (1991). The judge should measure the extent of allowable cross-examination involving collateral matters "in light of the effect of such examination upon substantial justice." Mazza v. Winters, 95 N.J. Super. 71, 79 (App. Div. 1967) (advising that whether testifying doctor had changed his name from Rubin Tubowitz to Robert Tuby, and whether in another case, tried three years before, he testified falsely that he had always been known as Robert Tuby, was totally irrelevant to the issues of the present case). We will not interfere with the trial judges control in determining the proper limits of examination of a witness credibility unless clear error and prejudice is shown. Lawlor v. Kolarsick, 92 N.J. Super. 309, 311 (App. Div.), certif. denied, 48 N.J. 356 (1966).

Medical witnesses may also be cross-examined as to their "testimonial and experiential weakness" through "the usual methods of cross-examination." Janus v. Hackensack Hosp., 131 N.J. Super. 535, 541 (App. Div. 1974), certif. denied, 71 N.J. 515 (1976); Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 86 (App. Div. 1961). In Janus, supra, the trial judge prohibited defense counsel from cross-examining a medical witness as to his credibility.

We reversed and remanded, concluding that,

[c]redibility of the competing medical witnesses was a paramount factor to be first determined by the jury in resolving the controversy. Under these circumstances, and in the light of the previously discussed legal principles, we conclude that the action of the trial judge in preventing the full cross-examination of Dr. Tuby, and impliedly of Dr. Tesler, constituted a mistaken exercise of his discretion which amounted to clear error and prejudice to defendants. It was clearly capable of producing an unjust result, R. 2:10-2, and accordingly mandates a reversal and the granting of a new trial.

[131 N.J. Super. at 541].

The evidence with which a witness may be impeached is "not . . . limited to evidence adduced�at trial." Delgaudio, supra, 280 N.J. Super. at 142; Martini, supra, 131 N.J. at 255. However, impeachment evidence is subject to the same evidentiary strictures as most evidence, that being that under N.J.R.E. 901, prior to its admission into evidence, the evidence must be authenticated or identified that the "matter is what the proponent claims."

Here, defendant takes issue with use of the CFO documents during cross-examination, arguing that the documents were not properly authenticated or identified under N.J.R.E. 901 before presentation to the witness. In evaluating defendants motion for reconsideration, the trial judge rejected this argument. He said:

Regarding P-19 and P-20 being improperly shown to the jury, Mr. Dorsi [defense counsel] is mistaken in his allegation that they were shown to the jury without prior authentication. . . . In any event, on cross examination of Dr. Carozza, Mr. Caminiti sought to use P-19 by placing it on an overhead projector. There was an objection by both defense counsel and the court sustained their objection until defendants medical witness was given an opportunity to identify each of the documents (P-19 and P-2). Dr. Carozza testified that at the time he first became affiliated with CFO, he was given a copy of a CFO sample report together with guidelines for writing reports and a suggested report format. Dr. Carozza did identify the documents and conceded that CFO was the national affiliate of U.S. Medical Consultants. Thereafter, U.S. Medical Consultants document was marked P-20 and was exhibited, in part, to the jury, without objection, contemporaneously with the cross-examination of Dr. Carozza. The same part of P-20 was displayed to the jury during summation without objection.

Since neither defense counsel voiced objection to this alleged impropriety, which did not have the capacity to prejudice the jury so as to cause a miscarriage of justice, any objection made post judgment is deemed waived.

We find no error in Judge Russellos ruling. Plaintiffs counsel questioned Dr. Carozza as to the latters experience and background in testifying in prior cases. Dr. Carozzas C.V. was printed on CFO Medical Services, P.A., letterhead, stating, "The Physician below is available for Independent Medical Evaluations. . . ." Counsel was entitled to and appropriately questioned Dr. Carozza regarding his relationship with CFO. He asked the doctor to read from a document provided by U.S.M.C., CFOs national affiliate. While defense counsel objected that "this [was] obviously a fact finding issue as to CFO marketing[,]" the trial judge ruled that he would allow some latitude for plaintiffs counsel to impeach the witness credibility.

Dr. Carozza identified the document and corroborated the relationship of U.S.M.C. and CFO. These documents included one entitled "Advantages for Physicians", which advertised training seminars on "How to be a More Effective Medical Witness"; "How to Write More Persuasive, Defensible IME Report [sic.]"; and "Advanced Testifying Skills for Experts." In response to counsels questions, Dr. Carozza admitted to receiving a sample report, together with guidelines for writing reports and a suggested report outline from CFO/U.S.M.C. He also admitted that, if his findings during an exam were, in his opinion, within "normal limits," he used a "canned form." He testified that part of the report he allegedly authored following his examination of plaintiff was "canned."

The cross-examination was proper and was germane to his testimony as an expert witness. CFO/U.S.M.C. was in the business of teaching medical witnesses how to be more persuasive during testimony; Dr. Carozzas affiliation with this group "[bore] against [his] credibility" and was "relevant to the issue being tried" deserving of further questioning. Delgaudio, supra, 280 N.J. Super. at 142.

We conclude that the trial judge did not abuse his discretion in ruling that the documents were properly authenticated, see N.J.R.E. 901, and were properly utilized by counsel.

Finally, defendant argues that plaintiffs counsels comments during summation were improper and warrant reversal. We disagree.

"Counsel is to be given broad latitude in summation." Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 32 (App. Div. 1998). However, such latitude is not without limits. Comment must be "restrained within the facts shown or reasonably suggested by the evidence adduced." Ibid. (citing Condella v. Cumberland Farms, Inc., 298 N.J. Super. 531, 534 (1996); Matthews v. Nelson, 57 N.J. Super. 515, 521 (App. Div. 1959), certif. denied, 31 N.J. 296 (1960)). Furthermore, counsel "may not misstate the evidence nor distort the factual picture", ibid., such as by using "disparaging language to discredit the opposing party, or witness," Rodd v. Raritan Radiologic Assoc., P.A., 373 N.J. Super. 154, 171 (App. Div. 2004) (citing Geler v. Akawie, 358 N.J. Super. 437, 470-71 (App. Div.), certif. denied, 177 N.J. 223 (2003); Henker v. Preybylowski, 216 N.J. Super. 513, 518-19 (App. Div. 1987)); "accus[ing] a partys attorney of wanting the jury to evaluate the evidence unfairly"; "trying to deceive the jury"; or "deliberately distorting the evidence." Ibid.

Counsel may urge the jury to "draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous or even absurd, unless they are couched in language transcending the bounds of legitimate argument, or there are no grounds for them in the evidence." Spedick v. Murphy, 266 N.J. Super. 573, 590-91 (App. Div.), certif. denied, 134 N.J. 567 (1993); see Wimberly v. Paterson, 75 N.J. Super. 584, 604 (App. Div.), certif. denied, 38 N.J. 340 (1962), overruled in part on other grounds by Johnson v. Dobrosky, 187 N.J. 594 (2006); Botta v. Brunner, 42 N.J. Super. 95, 108 (App. Div. 1956), modified, 26 N.J. 82 (1958). We will not disturb the trial judges discretion over summation argument unless "it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.

Here, defendant urges that the "cumulative effect" of the comments made by plaintiffs counsel during summation "clearly had the capacity to inflame the jury." These include: (1) the analogy of plaintiffs pain and suffering to the experiences of the jury in a dentists chair; (2) the suggestion that the loss of enjoyment of life is to be equated with the jurors and "everyones" democratic freedoms; (3) "improperly impugn[ing] the integrity of both defense counsel and their witnesses especially Dr. Carozza"; and (4) the suggestion that defendant was guilty of "reckless driving" "when there was no such allegation during the trial nor was that charge requested or given by the court."

In denying defendants motion for re-consideration, Judge Russello observed:

The remarks made during summation by plaintiffs counsel were proper and based upon the evidence that was adduced during the course of the trial and any reasonable inferences therefrom were fair comment. [Plaintiffs counsel] had an obligation to address the credibility of the witnesses since this was a critical issue for the jurys ultimate determination. All counsel were accorded broad latitude in summation. In addition and in the alternative, [defense counsel] never objected during closing arguments to anything that [plaintiffs counsel] stated in his summation, or at least those selective portions of the transcript that [defense counsel] has now furnished, do not reflect that. Defense counsels failure to object ordinarily indicates that the statements made in summation were not and are not prejudicial and are deemed waived.

We first note that where a lawyer hears an adversarys statements and concludes that the statements are improper, an objection should be advanced. Fertile, supra, 169 N.J. at 481. Failure to object may be considered as opposing counsels belief that the statements were not unduly prejudicial. Linden v. Benedict Motel Corps., 370 N.J. Super. 372, 398 (App. Div.), certif. denied, 180 N.J. 356 (2004). Where no objection is advanced, only those statements which are "clearly capable of producing an unjust result" rise to the level of reversible error. Fertile, supra, 169 N.J. at 481.

Plaintiffs counsels statements were not of that character here. We have previously discussed the propriety of Dr. Carozzas relationship with and advice tendered by CFO/U.S.M.C.

Counsel presented a reasoned analysis of the testimony, suggesting that the witness history with a marketing group damaged the credibility of the witness:

[W]hy Dr. Carozza? Why the doctor who is affiliated with that CFO United States group of some sort who puts out there that they want people who hire them, that they give seminars on how to be a more effective medical witness. Now I dont know whether or not you think that Dr. Carozza was effective. I know that he didnt attend any of these seminars. And Ill leave that for you to judge. . . .

The statements were "reasonably suggested by the evidence adduced," Diakamopoulos, supra, 312 N.J. Super. at 31, and proper. Credibility was a critical factor in the outcome of this trial. We cannot say on this record that these comments rise to the level of plain error or led to an unjust result.

We reach the same result regarding the comments related to the "dentist chair." We have carefully reviewed the record and find that counsels comments did not violate the admonitions expressed by the Court in Cox v. Valley Fair Corp., 83 N.J. 381, 384-85 (1980). We note that Rule 1:7-1(b), adopted after Cox, permits commentary regarding "time-unit" rule. In sum, we find no error.

We affirm the judgment in A-0233-08T3.

A-1345-08T3

This companion appeal involves plaintiff and Amica Mutual Insurance Company (Amica), plaintiffs insurance carrier and the issuance of an order compelling Amica to pay underinsured benefits to plaintiff. We affirm that order.

These are the facts relevant to this appeal. In August 2006, within two years of her accident involving defendant Galinsky, plaintiff filed a lawsuit against Galinsky, on August 21, 2006, two days prior to the filing of the complaint in the plaintiffs personal injury action, plaintiffs attorney sent a letter to Amica notifying it of the suit and advising that "[i]t is possible that the defendant(s) may be uninsured or that the insurance may be inadequate to satisfy this claim." (Emphasis added.) The letter further stated, "If so, it is my intention to file an uninsured/underinsured claim pursuant to that endorsement of your insurance policy." Amica provided both uninsured (UM) and underinsured (UIM) coverage for the benefit of plaintiff.

On December 18, 2006, plaintiffs attorney sent another notice to Amica advising it of its right to intervene in the litigation, and on April 27, 2007, Amica intervened in the lawsuit between plaintiff and Galinsky in its role of UM insurer representing the interests of the alleged phantom driver.

Following a week-long trial in March 2008, in which Amica actively participated, the jury returned a verdict in the amount of $625,000 against Galinsky, the identified tortfeasor and found no liability as to the alleged phantom driver.

As Galinsky had limited coverage, notice was forwarded on April 1, 2008, to Amica of plaintiffs intention to seek UIM benefits as against her personal automobile insurance policy.

By letter of May 12, 2008, Amica denied UIM coverage, asserting in essence, that because Galinsky did not settle within policy limits, plaintiff was not underinsured and further claiming that the underlying action was commenced without Amicas consent. It further argued that it was not fully advised of a UIM claim.

On June 4, 2008, plaintiffs counsel forwarded to Galinksys counsel a proposed Assignment of Rights against Galinskys insurance carrier, Rutgers Casualty Insurance Company.

In response, plaintiff filed an Order to Show Cause to compel payment of UIM benefits, seeking to compel Amica to tender $200,000 in UIM benefits - the difference between the $300,000 in UM/UIM benefits pursuant to her personal auto policy with Amica and the $100,000 limit of the tortfeasor Galinskys auto liability policy available from Rutgers. Judge Russello granted the relief, ordered the payment of $200,000 from Amica to plaintiff and said:

At the time of the accident, plaintiff was insured by defendant, Amica Mutual Insurance Company with a UM/UIM endorsement of $300,000. Defendant, Esmira Galinsky was insured with Rutgers Casualty with liability limits in the amount of $100,000/300,000. On March 25, 2008 the jury returned a verdict finding the defendant, Esmira Galinsky 100% at fault and awarding $625,000 in personal injury damages to plaintiff. Defendant, Amica is contractually obligated to pay underinsured motorists benefits pursuant to plaintiffs policy in the amount of $200,000.

As the plaintiffs automobile insurance carrier on the date of the accident, the defendant, Amica, wore two litigation hats, one as UM and the other as UIM.

On August 21, 2006, plaintiffs counsel sent a letter to the defendant, Amica Mutual Insurance, in accordance with Rutgers Casualty Insurance Company v. Vassas, 139 N.J. 163 (1995) advising them that the defendants may be uninsured or that the insurance may be inadequate to satisfy the claim and if that be the case, it was plaintiffs intention to file an uninsured/underinsured claim. A Notice of Suit and Right to Intervene were also sent by plaintiff to defendant, Amica. Defendant, Amicas interests were adequately represented because it actively participated through its counsel, Denise M. Luckenbach, Esq., both throughout the discovery process and at and in the trial of this matter. Indeed, defendant, Amica retained the services of defense medical examiner, Dr. Charles Carozza who submitted at least four defense medical examination reports in connection with this litigation.

Defendant, Amica intervened in the underlying litigation and is bound by the judgment. They were given adequate notice of the suit and its interests were adequately represented.

Plaintiffs claim is not barred by the entire controversy doctrine. Plaintiff in this case brings suit against the defendant, Amica, to enforce the payment of UIM benefits pursuant to the UM/UIM endorsement of her policy. This is merely enforcing the defendant, Amicas, contractual obligation to plaintiff which plaintiff paid premiums for and to which the defendant, Amica, had adequate notice and whose interests were well represented.

By way of note, the April 4, 2008 Order for Judgment that this court signed, dismissed the uninsured motorist claim against the defendant, Amica Mutual Insurance Company with prejudice, (emphasis mine) based upon the jury finding that the defendant, Galinsky, was 100% liable and the phantom vehicle either non-existent or 0% responsible for the happening of this accident. I did not dismiss the UIM claim against the defendant, Amica, nor did that Order for Judgment address it.

Counsel for the defendant, Amica, alludes to an Assignment of Rights purportedly signed by plaintiff, Carmela Cuccurullo and the defendant, Esmira Galinsky, permitting plaintiff to take legal action against Rutgers Casualty Insurance Company. Defendants counsel contends that this is a destruction of any potential subrogation rights and bars a UIM claim pursuant to the collateral source rule. This argument by Amicas counsel may be academic and moot since this court did not see any signed Assignment that was attached.

Amica now appeals.

On appeal, it argues that it failed to have proper notice of the UIM claim, that relief is barred by the entire controversy doctrine, that the tender of an assignment to pursue a bad faith claim against Rutgers "does not render Galinsky underinsured" and the "potential" for a bad faith claim against Rutgers bars a UIM claim against Amica.

We address these issues seriatim.

We start with certain basic principles that inform the outcome of this appeal. First, an action by an insured to compel UIM benefits after resolution of the claim against the tortfeasor should be brought promptly and adjudicated summarily for the purpose of resolving the parties respective rights and liabilities. Rutgers Casualty Ins. Co., supra, 139 N.J. at 175; Hallion v. Liberty Mut. Ins. Co., 337 N.J. Super. 360, 368 (App. Div. 2001).

Where there is notice to an UM/UIM carrier of an underlying tort claim and an adversarial proceeding that determines damages, the UM/UIM carrier will be bound by the damages award. Vaccaro v. P.A. Nat. Mut. Cas. Ins. Co., 349 N.J. Super. 133, 143 (App. Div.), certif. denied, 174 N.J. 40 (2002). As the Court observed in Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 333-34 (1996),

Although the relationship of the insurer and insured is contractual, the source of the obligation to offer underinsured motorist coverage is statutory. . . . For an insured who exercises the [underinsured motorist] option, the practical effect of the coverage offered [] is to require an insurer, to the extent of coverage, to pay its insured the damages that the insured is entitled to recover from the underinsured tortfeasor, less the amount of the tortfeasors coverage. Accordingly, the mandatory availability of [underinsured motorist] coverage for all insureds reflects a strong public-policy interest in providing through automobile insurance adequate compensation to [] motorists for injuries sustained in accidents with underinsured motorists.

[(Citations omitted).]

Furthermore, legislation involving automobile insurance should be construed to allow for the broadest protection of auto accident victims consistent with the language of the pertinent statute. Ciecka v. Transamerica Ins. Group, 81 N.J. 421, 428 (1979) (quoting Motor Club of Am. Ins. Co. v. Phillips, 66 N.J. 277, 293 (1974)).

Defendant argues that the trial judge erred in compelling Amica to tender payment of $200,000 in UIM benefits to plaintiff, because plaintiff failed to place Amica on notice of her intention to pursue an UIM claim until after the jury rendered a verdict in excess of the tortfeasors automobile policy. This is factually inaccurate.

[W]hen an insured under an automobile insurance policy providing UIM benefits is involved in an accident and undertakes legal action against the tortfeasor, the insured must notify �the UIM insurer of that action. If, during the pendency of the claim, the tortfeasors insurance coverage proves insufficient to satisfy the insureds damages, then the insured should again notify the UIM insurer of that fact.

[Rutgers Casualty Ins. Co., supra, 139 N.J. at 174].

The first required notice is upon initiation of the action. See Rivers v. Allstate Ins. Co., 312 N.J. Super. 379, 383 (App. Div. 1998); Zirger, supra, 144 N.J. at 340 (observing that "plaintiffs are obligated to provide notice to their UM/UIM carrier of the institution of suit against the tortfeasor"). A second notice is required where the tortfeasors insurance�coverage proves insufficient to satisfy the insureds damages. Rivers, supra, 312 N.J. Super. at 383. The UIM/UM provider has the right to intervene where intervention will not "unduly delay or prejudice the adjudication of the rights of the original parties," Zirger, supra, 144 N.J. at 341 (citing Looman Realty Corp. v. Broad St. Natl Bank of Trenton, 74 N.J. Super. 71, 78 (App. Div.), certif. denied, 37 N.J. 520 (1962)), and where "intervention will eliminate the need for subsequent litigation." Ibid. (citing Div. of Youth & Fam. Servs. v. Torres, 185 N.J. Super. 234, 245 (Juv. & Dom. Rel. Ct. 1980), affd o.b., 185 N.J. Super. 182 (App. Div. 1982)). Without question, Amica was notified at the time of the filing of the action of the uninsured claim and of the potential for an underinsured claim. It was notified of its right to intervene and did so. It actively participated in the litigation, appearing at trial and representing its interests in the guise of an alleged phantom driver.

In sum, Amica received timely notice of the UM/UIM claim, notice of the lawsuit, notice of its right to intervene and notice of inadequate coverage after the verdict. To suggest that it was not given adequate notice of all of its potential liability under its insurance contract is fanciful, at best.

We have carefully reviewed the record and considered Amicas remaining arguments regarding the application of the entire controversy doctrine as well as the import of the tender of an assignment of rights and we conclude that both arguments are without merit. R. 2:11-3(e)(1)(E).

Finally, during the pendency of this appeal, plaintiff and Galinsky reached a settlement; however, because of the pending appeal, the settlement required Amicas consent to settle. Plaintiff moved before us to compel Amica to consent; we denied the motion without prejudice and granted the parties leave to file the motion in the Law Division. In our February 5, 2010 order, we noted that the "motion raises issues that are not presently before the court, and we decline to entertain such issues on these appeals." We did order the Law Division to advise us of the result of the motion. By order of March 19, 2010, Judge Russello, in the Law Division, granted plaintiffs motion pursuant to Longworth v. Van Houten, 223 N.J. Super. 174 (App. Div. 1988). Amica appealed that order and moved before us to calendar its newest appeal with these appeals. In addition, Amica moved for an order to preserve any bad faith claims against Rutgers.

We have now decided the underlying appeals and conclude that Amicas motion to consider its appeal with these appeals is moot. We need not determine the rights of Amica now that it is obligated to provide UIM coverage nor do we opine on the issue of its subrogation rights. To the extent that it considers such issues extant, we leave that to any further proceedings it chooses to pursue to resolve those issues.

The judgments in A-1345-08T3 and A-0233-08T3 are affirmed.



________________________________________________________________


ASHRAFI, J.A.D., concurring and concurring in the result.


I join in the courts opinion in A-1345-08T3, and I concur in the result in A-0233-08T3.

I.

With respect to defendant Galinskys contention that the trial judge erred in rejecting her proposed jury instruction for a stop sign violation under N.J.S.A. 39:4-144, I decline to join in the majoritys reliance on Ewing v. Burke, 316 N.J. Super. 287 (App. Div. 1998), which I view as wrongly decided. In Ewing, we held that a trial judge in a personal injury trial arising from a motor vehicle accident committed plain error in failing to instruct the jury about an applicable motor vehicle statute that neither party had requested be charged or otherwise raised during the trial. Id. at 292, 294. Not only had neither party requested the charge, neither party had raised the alleged error on appeal. Id. at 292-95.

I believe our decision in Ewing was incorrect in three respects: failing to apply Rule 1:7-2 regarding waiver of objections to the jury charge not made at trial; failing to apply appropriately Rule 2:10-2 regarding the plain error standard of review; and, most important, reaching a decision on appeal on an issue not raised, briefed, or adequately argued by the parties. The personal injury verdict in a routine motor vehicle accident case was not the kind of matter involving public policy or other matters of public interest that warranted our intervention to correct a "manifestly unjust result." See In re Appeal of Howard D. Johnson Co., 36 N.J. 443, 446 (1962).

The holding of Ewing, however, is inapplicable to the argument defendant raises on this appeal. Here, defendant made a request that the trial court charge the jury on the stop sign statute. The plain error standard of review is not involved. I would hold the trial court did not abuse its discretion in determining the evidence of a stop sign violation by an alleged phantom driver was too vague and tenuous and in declining to give the requested instruction for that reason. See Mayles v. Wentlejewski, 337 N.J. Super. 466, 471 (App. Div. 2001); Hochman v. Karpenski, 325 N.J. Super. 460, 465-66 (App. Div. 1999).

Even if such an instruction would have been appropriate, failure to give the charge was harmless. The jury could understand the contentions of the parties and the negligence issues it was asked to decide without an instruction that the traffic laws of this State include a statute establishing a motor vehicle violation for running a stop sign. The jury could understand that going through a stop sign without stopping and looking for crossing traffic would be evidence of negligence by the alleged phantom driver. See id. at 465.

With respect to the requested charge on the stop sign statute, there was no error "clearly capable of producing an unjust result." Rule 2:10-2.

II.

The more problematic issue raised on appeal concerns improper summation remarks by plaintiffs attorney. I disagree with my colleagues conclusion finding no error. Ante at ___ (slip op. at 31-32). I view plaintiffs summation as ranging substantially beyond acceptable argument, and if defense counsel had made timely objections, the trial court would have been obliged to sustain those objections. Defense counsel, however, chose not to object at trial, and we should not set aside the jurys verdict unless the summation contained plain error, "clearly capable of producing an unjust result." R. 2:10-2. Although the several distortions and improprieties in plaintiffs summation come close to that threshold, I do not find plain error.

Plaintiffs counsel began his summation by reminding jurors of the oath they had taken to try the case truly and fairly. Soon after that beginning, he improperly put each juror in plaintiffs place. He said:

And I remind you [of] that [] oath now, for reasons much more important perhaps than what were dealing with here today on March 25th, and that is that were all future litigants.

We live today in good health and revel of contentment, but tomorrow anyone in society can be injured by the careless driving of someone else.

This comment was objectionable because it asked jurors to put themselves in plaintiffs shoes and decide the case from plaintiffs point of view. Cf. Botta v. Brunner, 26 N.J. 82, 94 (1958) (prohibiting "golden rule" argument to jurors regarding measuring damages); accord Geler v. Akawie, 358 N.J. Super. 437, 464 (App. Div.), certif. denied, 177 N.J. 223 (2003); Henker v. Preybylowski, 216 N.J. Super. 513, 520 (App. Div. 1987).

Next, after focusing for some time on the evidence and the issues, counsel again reminded jurors that they may one day be plaintiffs, embellishing his comments with lofty concepts from the Declaration of Independence:

and when you talk about a loss of enjoyment of life, when you talk about those things that make things meaningful and important, in Carmellas case, in your case and in everyones case, what you really talk about is a loss of life, a loss of liberty and the loss of a pursuit of happiness. And my friends I will tell you that life does not mean living. Life means living and breathing the way the good Lord put us [on] this earth to live and breathe without suffering as the result of the careless or reckless driving of one or more of these defendants. And liberty doesnt mean freedom from jail. Liberty means the freedom to do all of the things that you enjoyed doing before you were injured.

[(Emphasis added.)]

Shortly after reminding jurors of their own potential loss of liberty and the pursuit of happiness through injuries in a car accident, counsel made the most serious error in his summation. He displayed the Court Rule book to the jury and said:

Speaking of books, this is a court rule book. In its thousands of pages and hundreds of court rules, it guides lawyers in the courtroom, it guides trial judges in the courtroom and it guides you folks as the trier of fact in the courtroom. And out of all the hundreds of rules in this books thousands of pages, theres only one rule, one, that gives us any guidance when determining what fair and reasonable compensation is when someones injured. And thats something called the time unit rule.

The time unit rule permits you as jurors to look into the future based upon statistics which say how long a person of Carmellas age would likely have lived at the time the collision occurred. The judge will tell you when he charges you that Carmella had 39.2 years to live statistically. Now, she could obviously die sooner than that or she could live longer than that. But statistically she had 39.2 years to live. That calculates out to 14,308 days, or 143,000 hours. And in your judgment, and His Honor will explain to you that this is purely in your judgment, and its my suggestion to you as an argument on behalf of Carmella, but in your judgment if you choose to follow the one rule in this book that talks about fair compensation, you can follow the time unit rule.

[(Emphasis added.)]

Counsel misstated the law by telling the jury that the Court Rules contain the one rule, out of hundreds, that "talks about fair compensation." While Rule 1:7-1(b) permits counsel to make a time-unit argument, it says nothing about fair compensation. It was never intended to give substantive guidance to the jury on assessing damages. The Rule states in relevant part:

In civil cases any party may suggest to the trier of fact, with respect to any element of damages, that unliquidated damages be calculated on a time-unit basis without reference to a specific sum. In the event such comments are made to a jury, the judge shall instruct the jury that they are argument only and do not constitute evidence.

The Rule was promulgated in response to the strict prohibition announced in Botta, supra, 26 N.J. at 100, against trial counsel suggesting the dollar amount of damages the jury should award. See Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 123 n.4 (2004). It was not intended to, and does not, approve as a substantive matter use of a time-unit formula to measure fair compensation to a plaintiff.

The Court Rules address procedural matters that are seldom of any concern to jurors. Plaintiffs attorney inaccurately told the jurors that the rule book "guides [the jury] as the trier of the fact in the courtroom." The Court Rules do not provide guidance directly to the jury. They certainly do not guide the jury regarding how it should calculate damages in a personal injury case. On the subject of measuring non-economic damages, such as pain and suffering, all juries in personal injury cases are instructed that:

The law does not provide you with any table, schedule or formula by which a persons pain and suffering disability, impairment, loss of enjoyment of life may be measured in terms of money. . . . [T]he law can provide no better yardstick for your guidance than your own impartial judgment and experience.

[Model Jury Charge (Civil), 8.11E, "Disability, Impairment and Loss of the Enjoyment of Life, Pain and Suffering" (1996).]

Counsels improper comments contradicted this instruction from the court and could have confused the jury. They misled the jury about the meaning and effect of Rule 1:7-1(b), an error accentuated by counsel displaying the Court Rules book as purported authority for his distortion of the law.

We grant "broad latitude" to counsel to make closing arguments to the jury. Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 32 (App. Div. 1998). But "[s]ummation commentary . . . must be based in truth," and counsel are not free to misstate the facts or the law. See Bender v. Adelson, 187 N.J. 411, 431 (2006); see also Biruk v. Wilson, 50 N.J. 253, 260-61 (1967) (disapproving counsels tactics of making false factual suggestions to jury in closing argument).

Neither defense counsel nor the judge corrected the erroneous statement of law in counsels argument. Nor did the courts final instructions to the jury correct counsels misstatement. With respect to the time-unit argument, the final instructions stated:

Ladies and gentlemen, let me tell you about the time unit rule. Our court rules permit plaintiffs attorney, if he chooses to, to suggest to you in closing argument that damages, such as damages for disability, impairment, loss of the enjoyment of life, pain and suffering, may be calculated on a time unit basis without reference to a specific sum.

By way of illustration, counsel may ask you to think about pain and suffering when measured by a finite period such as hours, days or years. Counsel then may argue that according to statistical tables that Ill give you shortly, that the plaintiff may live so many hours, days or years. Remember, ladies and gentlemen, that the suggestion that you view damages on a time unit basis is argument only and is not evidence.

Immediately following this instruction, the court instructed the jury that plaintiffs life expectancy was 39.2 years, just as plaintiffs attorney had done in his summation. By tracking plaintiffs summation remarks, giving an illustration in conformity with those remarks, and not commenting upon the potential misconception engendered by plaintiffs summation that the Court Rules favored a time-unit measure of compensation, the trial court reinforced rather than corrected counsels distorting, erroneous argument about the law applicable to measuring non-economic damages.

After misleading the jury about the contents of the Court Rules, plaintiffs attorney compounded the error by making a related argument regarding pain and suffering damages, again without objection, that has been expressly disapproved by the Supreme Court. Counsel said:

And let me give you this example if I could. All of us have been to a dentist, weve all probably had teeth drilled. You can go to a dentist and you can get a cavity filled and, you know, youve really got a choice, you can take Novocain, or you cannot take Novocain and you can endure some pain. If you just give some thought to what you think a reasonable person would pay to avoid that hour, you may be able to give yourself some sense over 143,000 hours of what may be a fair and an honest verdict on behalf of Carmella.

In Cox v. Valley Fair Corp., 83 N.J. 381 (1980), the Supreme Court disapproved a summation argument very similar to the analogy plaintiffs attorney drew. The Court said that the summation was improper for two reasons: (1) it was "a subtle appeal to the golden rule, i.e., that the members of the jury consider what one day of pain and suffering or, conversely, its avoidance, would be worth to them[,]" and (2) it "suggests a per diem formula for calculating plaintiffs damages for pain and suffering." Id. at 385. The second of these reasons has been abrogated by Rule 1:7-1(b), permitting a time-unit argument. The first, however, remains the law. Counsel is not permitted to ask the jury to equate plaintiffs pain and suffering with the amount that jurors think is reasonable to pay to avoid pain during dental treatment. To equate the two, jurors must necessarily rely on evidence outside the record, namely, their own willingness to pay for anesthesia while in a dentists chair having their teeth drilled.

Besides the fact that the argument is unfairly inflammatory, it lacks logic and invites speculation. The injuries suffered by plaintiff in this case, knee, neck, and lower back injuries with permanent but not disastrous consequences, cannot be fairly equated to the pain of drilling a tooth without Novocain. Who could endure 39.2 years, or 143,000 hours, with the level of pain associated with drilling a tooth without anesthesia? The jury was not being asked in this case to determine fair compensation for that level of pain and suffering.

Also, no evidence was presented about the cost of Novocain for an hour of treatment by a dentist. Plaintiffs summation asked the jury to consider that cost, but the jurys consideration would be outside the record and speculative. The jury would also have to speculate about the likelihood that they, or anyone else, would be willing and have the financial ability to pay 143,000 times that unknown cost to avoid the pain. There is no correlation between multiplying the cost of Novocain times the hours of a plaintiffs life expectancy and fair compensation for pain and suffering and related non-economic damages arising from plaintiffs injuries in this case.

Under Rule 1:7-1(b), plaintiffs attorney makes the last closing argument. It is virtually impossible for defense counsel to anticipate and respond appropriately to such an argument during the defendants earlier summation, if counsel were so inclined. The argument fosters speculation and misconceptions and has no place in a fair trial.

Nevertheless, defense counsels failure to object to any of the improper comments during plaintiffs summation may be interpreted as an indication that the errors were not so egregious in the context of the entire trial that they affected the jurys verdict. See Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 128 (2008); Fertile v. St. Michaels Med. Ctr., 169 N.J. 481, 495 (2001). Moreover, the excesses of plaintiffs summation could have been corrected at trial by a timely objection and curative instruction. See Bender, supra, 187 N.J. at 433; City of Linden v. Benedict Motel Corp., 370 N.J. Super. 372, 398 (App. Div.), certif. denied, 180 N.J. 356 (2004); Weed v. Casie Enter., 279 N.J. Super. 517,�528 (App. Div. 1995). If trial counsel choose to forego objection during summation — because of courtesy, custom, indifference, or perhaps an unstated quid pro quo — they will usually have to abide the results.


Because the summation errors did not rise to the level of plain error, I concur in the result reached by the majority affirming the jurys verdict.

The record does not reveal Dr. Rosenbaums first name.

After objection, the document was removed from the overhead, and a copy was presented to the witness for identification.

By letter of December 18, 2006, plaintiff sent Amica a "Zirger" letter, which read:

Please take notice that the plaintiff, Carmela Cuccurullo, sustained personal injuries in a motor vehicle accident with an insured motor vehicle. On the date of the loss, the plaintiff was an insured under an uninsured motorist endorsement issued by your company to the above policy holder which provides that you will pay all sums that the insured is legally entitled to recover as compensatory damages from the owner or operator of an uninsured motor vehicle.

Pursuant to Rutgers Casualty Ins. Co. v. Vassas, 139 N.J. 163, 174 (1995), you are hereby notified that the plaintiff has instituted the above captioned lawsuit, a copy of which is enclosed.

In addition, pursuant to Zirger v. General Accident Ins. Co., 144 N.J. 327 (1996), you are hereby notified of your right to intervene in the above action. If you intervene in this action or if you decline to exercise the opportunity to intervene, you will be bound by the determination of liability and damages in the Superior Court. In addition, you will be barred from enforcing the arbitration clause in the uninsured motorist endorsement.

According to the record, no assignment was ever executed.

I also note that defendants motion for a new trial did not provide sufficient information to the trial court to assess the potential cumulative prejudice of plaintiffs several improper remarks during closing argument. See Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 52-57 (2009). The primary focus of defendants motion for a new trial was simply that the damage award was excessive, with scant reference to particular trial errors that allegedly caused that outcome.

(continued)

Insurance Settlements

Insurance Settlements

A brief note to Injury Victims from KENNETH VERCAMMEN

Since 1990, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years. I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the soft approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

Many years ago, I attended a seminar sponsored by the American Bar Association on Law Practice Management and Total Quality Management. This was to help insure that each of our clients is always treated like a person -- not a file! We recognize that you are innocent victims and that you have placed your trust in us. Please understand that we understand what you are going through. Feel comforted that we are here to comfort you.

If you retain KENNETH VERCAMMEN to represent you, we will give you the same advice we give each of our clients -- concentrate on your life, you family and your health. We will take care of everything else. Leave all of the work and worry about your legal rights to us. Have faith in us as your attorneys. Understand that we will always do what we believe is best for you and your case. Helping you is our job. In fact, it is our only job -- guiding injury victims like you through one of the most difficult times of your lives, with care and concern -- while fighting aggressively to the limits of the law to obtain compensation and justice for each of you!

Print our Personal Injury Questionnaire on our Website, Fill it out and Fax back, so we can determine if we can help you obtain an injury settlement. We would welcome an opportunity to prove to you what we have proven to thousands of injured clients -- that you can feel comfortable and secure in the fact that KENNETH VERCAMMEN - Trial Attorney Will Fight To Win.

p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offers a unique -- For Settlement Only -- program. This means that if we are unable to settle with the insurance company, we will not go any further -- unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation.

Insurance Eligibility Points

Insurance Eligibility Points

TITLE 11. DEPARTMENT OF BANKING AND INSURANCE - DIVISION OF INSURANCE

CHAPTER 3. AUTOMOBILE INSURANCE

SUBCHAPTER 34. ELIGIBLE PERSONS QUALIFICATIONS AND AUTOMOBILE INSURANCE ELIGIBILITY POINTS SCHEDULE

N.J.A.C. 11:3-34, Appx.

APPENDIX

Schedule of Automobile Insurance Eligibility Points


Schedule 1


N.J.S.A.
Event Description
DMV Event
Points
Section
Identifier(s)

Number
If applicable


39:4-50
Operating a motor vehicle under the
0450; 3261


influence of alcohol or drugs


39:4-50.4
Refusal to submit to a chemical test


2C:11-2
Vehicular homicide

39:3-40
Operating a motor vehicle while driving


privilege is suspended


39:6B-2
Operating a motor vehicle without


liability insurance


39:6A-15
Misrepresentation of insurance coverage

Each at fault accident


For each full year of a court imposed driver's license suspension within the preceding 3 years

For each full year within the 1 immediately preceding 3 years that a person has not held a driver's license Involved in a fatal accident

39:3-37
Obtaining a driver's license or registration through deception


39:3-38 Make or use counterfeit plate or plates other than issued


39:3-38.1
Make, alter or counterfeit driver's license or registration


Failure to verify insurance involved in an automobile accident


Points for failure to hold a driver's license in the previous three years are not cumulative to points for driver's license suspension.




Schedule 2
N.J.S.A. Section
Offense
Points
Number


27:23-29
Moving against traffic--New Jersey Turnpike, Garden


State Parkway, and Atlantic City Expressway

27:23-29
Improper passing--New Jersey Turnpike, Garden State



Parkway, and Atlantic City Expressway

27:23-29
Unlawful use of median strip--New Jersey Turnpike,


Garden State Parkway, and Atlantic City Expressway

39:3-20
Operating constructor vehicle in excess of 30 mph

39:4-14.3
Operating motorized bicycle on a restricted highway

39:4-14.3d
More than one person on a motorized bike

39:4-35
Failure to yield to pedestrian in crosswalk

39:4-36
Failure to yield to pedestrian in crosswalk; passing


a vehicle yielding to pedestrian in crosswalk

39:4-41
Driving through a safety zone

39:4-52 & 39:5C-1
Racing on highway

39:4-55
Improper action or omission on grades and curves

39:4-57
Failure to observe direction of officer

39:4-66
Failure to stop vehicle before crossing sidewalk

39:4-66.1
Failure to yield to pedestrians or vehicles while


entering or leaving highway

39:4-71
Operating a motor vehicle on a sidewalk

39:4-80
Failure to obey direction of officer

39:4-81
Failure to observe traffic signals

39:4-82
Failure to keep right

39:4-82.1
Improper operating of vehicle on divided highway or


divider

39:4-83
Failure to keep right at intersection

39:4-84
Failure to pass to right of vehicle proceeding in


opposite direction

39:4-85
Improper passing on right or off roadway


39:4-85.1
Wrong way on a one-way street

39:4-86
Improper passing in no passing zone


39:4-87
Failure to yield to overtaking vehicle

39:4-88
Failure to observe traffic lanes

39:4-89
Tailgating

39:4-90
Failure to yield at intersection

39:4-90.1
Failure to use proper entrances to limited access


highways

39:4-91 & 39:4-92
Failure to yield to emergency vehicles

39:4-96
Reckless driving

39:4-97
Careless driving

39:4-97a
Destruction of agricultural or recreational property

39:4-97.1
Slow speed blocking traffic

39:4-98 & 39:4-99
Exceeding maximum speed 1-14 mph over limit


Exceeding maximum speed 15-29 mph over limit


Exceeding maximum speed 30 mph or more over limit

39:4-105
Failure to stop for traffic light

39:4-115
Improper turn at traffic light

39:4-119
Failure to stop at flashing red signal

39:4-122
Failure to stop for police whistle

39:4-123
Improper right or left turn

39:4-124
Improper turn from approved turning course

39:4-125
Improper "U" turn

39:4-126
Failure to give proper signal

39:4-127
Improper backing or turning in street

39:4-127.1
Improper crossing of railroad grade crossing

39:4-127.2
Improper crossing of bridge

39:4-128
Improper crossing of railroad grade crossing by


certain vehicles

39:4-128.1
Improper passing of school bus

39:4-128.4
Improper passing of a frozen dessert truck

39:4-129
Leaving the scene of an accident


No personal injury


Personal injury

39:4-144
Failure to observe "stop" or "yield" signs

39:5D-4
Moving violation out-of-state, Moving violation out-of-state

Instructions to Police Officers on Traffic Tickets

Instructions to Police Officers on Traffic Tickets

The following information must be printed on the back of the outside cover of each book of Uniform Traffic Tickets:

INSTRUCTIONS TO OFFICERS

A. GENERAL

1. At all times be COURTEOUS, FAIR and HONEST. Remember that public opinion of traffic enforcement is judged almost entirely by your conduct.

2. When issuing every Uniform Traffic Ticket:
DO –

Introduce yourself to the driver by saying,
“I am (give your rank, name and the name of the enforcement agency you represent).”
- Ask for the driver’s license, registration certificate and insurance identification card.
- Advise the driver of the offense committed.
- Advise the driver that you are going to issue a Uniform Traffic Ticket charging that offense.
- Ask for any additional information necessary to fill out the Uniform Traffic Ticket.
- Check the boxes “65 MPH Zone,” “Safe Corridor” or “Construction Zone” when applicable to the offense charged.
- Always check the box “Court Appearance Required” in accordance with R. 7:12-4(d) in addition to checking the “Accident” and Personal Injury” boxes if the offense involves an accident resulting in personal injury.
In addition, the box for “Court Appearance Required” must also be checked if the charge involves: (1) speeding 40 MPH or more above the posted speed limit in any vehicle; (2) speeding 20 MPH or more above the posted speed limit in a “Safe Corridor” or ”Construction Zone”; or (3) the following the operation of a commercial vehicle (see N.J.S.A. 39:3-10.11):
a) Excessive speeding – 15 MPH or more above the speed limit.
b) Reckless driving, including violations of N.J.S.A. 39:4-96.
c) Improper or erratic traffic lane changes.
d) Following a vehicle ahead too closely, including violations of N.J.S.A. 39:4-89.
- Always charge only one offense per ticket.
- Fill out the Uniform Traffic Ticket and hand it to the driver.

DO NOT –
- “Lecture” the driver.
- Quiz drivers on their knowledge of traffic laws.
- Indulge in personal remarks or altercations.

3. In filling out a ticket, preferably use a ball-point pen, applying steady pressure so that all copies will be legible. Print all information so that it is legible.

4. File the Uniform Traffic Ticket with the court without delay.

5. File the police copy in accordance with your departmental regulations.

6. Keep your officer’s copy in the event that your testimony in court is required.

7. Give the defendant the hard copy of the Uniform Traffic Ticket. For parking offenses, the defendant’s copy may also be affixed to the vehicle.

B. OFFICER’S COMMENTS
(See back of Officer’s Copy)
It is very important to fill in the OFFICER’S COMMENTS section provided on the back of the officer’s copy of the Uniform Traffic Ticket. Use this space to describe briefly the circumstances of the offense. There are always one or more relevant comments that you should note. Include every fact which will assist you in testifying, including:
-Facts about speed, distance and course of travel or position of the motor vehicle.
-In careless or reckless driving cases, the details which indicate that such offense was committed.
-Statements by the driver and general attitude.
-Other helpful comments or observations.
-Amendments to tickets are within the sole province of the judge acting, when appropriate, in open court.

Inheritance Estate Interview Form

Inheritance Estate

Interview Form

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Avenue
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: kennethvercammen.com

Please fill out completely and fax or mail back. This form is extremely important. Your accuracy and completeness in responding will help me best represent you. All sections and information must be filled out prior to sitting down with the attorney.

PLEASE PRINT

YOUR NAME _________________________________________________

ADDRESS ___________________________________________________

CITY ___________________________ STATE ____ ZIP _____________

CELL (____)____________________ TODAY'S DATE ____/_____/______

PHONE-DAY (____)________________ NIGHT (____)________________

E-MAIL ___________________________________________

Decedent’s Name ___________________________________

Date of Death (mm/dd/yy) ___ ___ /___ ___ /___ ___ ___ ___

Your relation to the person who passed away: _______________________

Referred By: ______________________________________
[Probate-Inherit Quest Macbook.doc rev 4/10/08]

*All Pages and Information must be filled out prior to seeing the Attorney. This

information is required by the Surrogate's Office and the Inheritance Tax Bureau.

Date of Will? (mm/dd/yy) ___ ___ /___ ___ /___ ___ ___ ___
(If no will, write "no will")

Location of original Will ____________________
Indicate if Surrogate "Probate letters" were issued and where issued: __________

Executor/ Administrator if not person filing out this form ____________

*The following questions are required by the Surrogate's Office and the Inheritance

Tax Bureau to be answered. Please answer all these questions to the best of your knowledge

so we can best help you. If none, write none.

Decedent’s S.S. No. ___ ___ ___ /___ ___ /___ ___ ___ ___

County of Residence ________________________________

SCHEDULE “A” REAL PROPERTY If none, write none

1. Street and Number _____________________________________

Town: ____________________

Lot: ___ Block: ____ County: ____________________

Title/Owner of Record: _______________

Full Market Value of Property: $________ Mortgage Balance: $_________
Tax Assessor Assessed Value: $____________________

Any other Real Estate: $______________________

SCHEDULE B-1: BANK ACCOUNTS/BROKERAGE ACCOUNTS
2) SCHEDULE B-1: STOCK
3) SCHEDULE B-1: INVESTMENT BONDS
4) SCHEDULE B-1: ALL OTHER PROPERTY

BANK ACCOUNTS/BROKERAGE ACCOUNTS
SCHEDULE “B (1)” BANK ACCOUNTS, STOCK, CD, OTHER ASSETS
All Other Personal Property Owned Individually or Jointly; Market Value, Indicate

the Manner of Registration at Date of Death. If none, write none for each line. Use

back of page if you need more space, or attach a list of assets.

Bank Accounts - Individually or Jointly Owned Date of Death Value

Name of Bank, Acct. # _____________ $_____________

___________________________________________ $_____________
___________________________________________ $_____________

Stock
(A) Number of Shares
(B) Name of Stock - Registered Owners(s)
(C) State of Inc.
(D) Date of Death Per Share Value
(E) Total Market Value
(F) Decedent’s Equity
Name of Stock Co., Acct. # ________________ $_____________
___________________________________________ $_____________

INVESTMENT BONDS
(A) Bonds - Individually or Jointly Owned
(B) Date of Death Value
(C) Decedent’s Equity*
___________________ $_____________
___________________ $_____________
___________________ $_____________

SCHEDULE B (1) - ALL OTHER PROPERTY
RESIDENT DECEDENT
Cars _______________________________________ $_____________
Other assets over $10,000 ______________________ $_____________
___________________________________________ $_____________
___________________________________________ $_____________

___________________________________________ $_____________
___________________________________________ $_____________
___________________________________________ $_____________

SCHEDULE “B” CLOSELY HELD “BUSINESSES”
RESIDENT DECEDENT
SCHEDULE “B (2) CLOSELY HELD “BUSINESSES”
Proprietorship, Partnership, Joint Venture and/or Closely Held Corporation in

which the Decedent Held Any Interest, Market Value at Date of Death [attach details]

If none, write none. ________________ $_____________

SCHEDULE “D” EXPENSES
Estimated Expenses for Funeral $ ____________________

Probate Administration $ ____________________

Counsel Fees: $ ____________________

Executor’s or Administrator’s Commissions $ ____________________

Other Administration Expenses (list individually), attach receipts.
Expense _________________ $ ____________________
Expense _________________ $ ____________________
Expense _________________ $ ____________________
Expense _________________ $ ____________________
Expense _________________ $ ____________________
Expense _________________ $ ____________________

SCHEDULE “E” BENEFICIARIES

In case of Intestacy, the parentage of all collateral heirs (such as nieces, nephews,

cousins, etc.) must be set forth. The relationship of step-parent, step-child, step-brother

or step-sister must be so stated.

BENEFICIARIES AND ADDRESSES
(State full names and addresses of all who have an interest, vested, contingent

or otherwise, in estate)

HEIRS AT LAW/
NEXT OF KIN: RELATIONSHIP: ADDRESS: APPROX. AGE: % INTEREST:

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________


Any specific bequests/gifts in will? _____________________________

_________________________________________________________

(NOTE: LIST CHILDREN OF DECEASED NEXT OF KIN - /ALSO GIVE AGE OF ANY MINORS)
State full names of all beneficiaries who died before or after decedent's death: ____________________________

1. The Inheritance Tax Bureau will require certain documents. Please attach a

photocopy (not original) of the decedent’s Will, Death Certificate, codicils, trusts,

and last full year’s Federal Income Tax Return. This is required by the Surrogate's

Office (Tax Bureau). We will also need photocopies of the Deed and Tax Bill

to submit to the Inheritance Tax Bureau.

SUMMARY
1. Real Property - Schedule A $_______________
2. All Other Assets - Schedule B(1) $_______________
3. Closely Held “Businesses” - Schedule B $_______________
4. Transfers prior to death - Schedule C $_______________
5. Gross Estate . . Total Lines 1 thru 4 $_______________
6. Deductions/Expenses . . . - Schedule D $_______________
7. Net Estate . Total - Line 5, minus Line 6 $_______________
8. Contingent Amount Included in Line 7 $_______________
9. Balance of Estate (Line 7, minus Line 8) $_______________

Are any questions in Schedule “C” answered yes? Yes __ No ___
Have or will you file or are you required to file a Federal Estate Tax Return

for estates over $2,000,000? Yes __ No ___
Has or will any disclaimer been filed? If so, attach copy Yes __ No ___
If the decedent died after December 31, 2001, did the decedent’s taxable estate

plus adjusted taxable gifts for Federal estate tax purposes under the provision

of the Internal Revenue Code in effect on December 31, 2001 exceed $675,000?

Yes __ No ___ If yes, by how much $ ___ ___ ___

How can we help you? What questions do you have? Is there anything else

important:

______________________________________________________

______________________________________________________

______________________________________________________

______________________________________________________

______________________________________________________

New clients: When you come into the office would you like:
Pen ___, Foam can holder ___, USA key chain ___, Calendar ___, T-Shirt _____?
All new clients are entitled to receive our Free Email Newsletter featuring

updates in Probate, Traffic Law, and Personal Injury/ Insurance. Thank you.

SCHEDULE “C” TRANSFERS
(THESE QUESTIONS ARE REQUIRED BY THE INHERITANCE TAX

BUREAU (DIVISION OF TAXATION)
1. Did decedent, within three years of death, transfer property, valued at $500.00 or

more, without receiving full financial consideration therefore? ___ Yes ___ No

2. Did decedent, at any time, transfer property, reserving (in whole or in part) the use,

possession, income, or enjoyment of such property? ___ Yes ___ No

3. Did decedent, at any time, transfer property on terms requiring payment of income

to decedent from a source other than such property? ___ Yes ___ No

4. Did decedent, at any time, transfer property, the beneficial enjoyment of which was

subject to change because of a reserved power to alter, amend, or revoke, or which

could revert to decedent under terms of transfer or by operation of law? ___ Yes ___ No
If answer to any of the above questions is “Yes”, set forth a description of property

transferred, the fair market value at date of death, dates of transfers, and to whom

transferred. Submit copy of trust deed or, agreement, if any. (If transfers are claimed

to be untaxable, also submit detailed statement of facts on which such claim is based,

proof as to decedent’s physical condition and copy of death certificate.)

5. Was decedent a participant in any pension plan that provided for payment to another

of an annuity or lump sum on or after death? ___ Yes ___ No

6. Did decedent purchase or in any manner participate in any contract or plan providing

for payment of an annuity or lump sum on or after death to another, except life insurance

contracts payable to a designated beneficiary? ___ Yes ___ No
(Matured endowment policies, claim settlement certificates, supplementary contracts,

annuity contracts and refunds thereunder and interest income certificates even though

issued by an insurance company are not considered life insurance contracts.)

7. Was a single premium life insurance policy issued on decedent’s life in conjunction

with an annuity contract? ___ Yes ___ No
If answer to questions 5, 6 or 7 is “Yes,” attach photostatic copies of all such contracts,

plans, and policies.

8. Were any accumulated dividends due on any contract of insurance? (If yes, list below)

___ Yes ___ No

For each transfer, set forth Date of Transfer; Description of Property, Both Real and

Personal: Actual Consideration if Any; Names and Relationship to Decedent of Donees,

Assignees, Transferees, etc.

___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___

Market Value at Date of Death __________________________