Major Car Accident Verdict in the NJ State Supreme Court won by Franklin
Solomon of Weitz & Luxenberg
Christina DiProspero v. Barbara J. Penn, et
al. (A-66-03)
This is part 1 of major car collision verdict won by Franklin Solomon of Weitz & Luxenberg.
I.
The trial court granted, and the Appellate Division affirmed, defendant ’s motion for summary judgment.Accordingly, we review the facts in the light most favorable to plaintiff.
R. 4:46- 2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
On November 30, 1999, defendant Barbara Penn was driving a pickup truck owned by defendant Martha Turner. Atthe Route 73 traffic circle in the Borough of Berlin, Penn failed to observe a “yield ” sign and crashed into a caroperated by plaintiff Christina DiProspero. As a result of the accident, the twenty- one- year- old plaintiff developedback and neck pain. Six days later, plaintiff visited her family physician, Dr. Harris Twersky, who prescribed atreatment plan of stretching and exercise. Plaintiff followed the plan for four months, but her back pain grewprogressively worse, and she began to suffer from jaw pain and headaches.
In April 2000, plaintiff consulted with Dr. Steven Scafidi, a chiropractor, who recorded plaintiff ’s complaints of jawgrinding and of neck, shoulder, and mid- and lower- back pain.
Dr. Scafidi x- rayed plaintiff and diagnosed her as having “a TMJ 2 dysfunction ” and “a strain/sprain injury that isaccompanied by ligamentous instability, myofascitis 3 and localized evidence of nerve root irritation. ” Plaintiff alsounderwent magnetic resonance imaging (MRI) scans of her cervical, lumbar, and thoracic spinal areas at MRImagingof South Jersey in Marlton. According to Dr. Scafidi, those scans showed that plaintiff ’s “discs seem[ed] to bebulging ” in all three spinal areas. 4 Plaintiff received chiropractic treatment for two years, two to three times eachweek, until her insurance carrier stopped paying for the visits.
Dr. Scafidi recommended that plaintiff see a TMJ specialist to treat her jaw pain. In 2000, plaintiff met with Dr.Melvyn Blake, D.D.S., who noted pain, tenderness, spasm, and clicking noises in her jaw. Dr. Blake prescribed anintra- oral splint and a treatment regimen, which continued for two years until plaintiff ’s insurance carrier declined topay for additional visits.
After the accident, plaintiff ’s lifestyle changed considerably. She had difficulty chewing hard foods and had toreduce her vigorous three- day- a- week regimen at the gym to light workouts three times a month. She sufferedsoreness in her back and neck when exercising and endured pain while sitting in her college classes. Her injuries,however, were not so debilitating that she could not take road trips or help around the house with laundry and dishes.
Plaintiff filed a negligence lawsuit against defendants, seeking damages for, among other things, pain and suffering.Plaintiff was covered by a no fault insurance policy subject to the limitation on lawsuit threshold under N.J.S.A.39:6A- 8(a). Plaintiff claimed that she suffered permanent injuries to body parts that “ha[d] not healed to functionnormally and will not heal to function normally with further medical treatment. ”
N.J.S.A. 39:6A- 8(a). As required by N.J.S.A. 39:6A- 8(a), plaintiff submitted certifications by Dr. Scafidi and Dr.Blake attesting to the permanency of the injuries to her cervical, thoracic, and lumbar spine, and hertemporomandibular joint. Both doctors certified that those injuries were proximately caused by the automobileaccident.
After the completion of discovery, defendants moved for summary judgment on the ground that there was noevidence that plaintiff ’s injuries had a serious impact on her life and, therefore, her suit was barred by the limitationon lawsuit threshold. The trial court agreed and granted the motion. 5
Plaintiff appealed, arguing that the serious life impact test did not apply to AICRA. In an unpublished per curiamopinion with one judge dissenting, the Appellate Division affirmed the grant of summary judgment because plaintiff “failed to establish that the injuries she sustained had a serious impact on her life ” in accordance with Oswin, supra.The panel followed the reasoning of James v. Torres, 354 N.J. Super. 586, 588 (App. Div. 2002), certif. denied, 175N.J. 547 (2003), and Rios v. Szivos, 354 N.J. Super. 578, 580 (App. Div. 2002), which held that Oswin ’s serious lifeimpact prong survived the legislative amendments that resulted in AICRA.
In dissenting, Judge Weissbard adopted the analysis in Compere v. Collins, 352 N.J. Super. 200, 202- 13 (Law Div.2002), in which Judge Lyons concluded that the language and legislative history of AICRA, as well as a comparisonof AICRA to its predecessor statute, revealed that Oswin ’s serious life impact standard did not apply to the limitationon lawsuit threshold.
Judge Weissbard found no ambiguity in the plain language of the statute that required delving into legislative history.Finally, Judge Weissbard noted that “[i]f the Legislature failed to effectuate its true intent (whatever that may be), itis for the Legislature, not us, to correct the situation. ”
Plaintiff appealed as of right based on the dissent in the Appellate Division. R. 2:2- 1(a)(2). We also granted amicuscuriae status to the Trial Attorneys of New Jersey, the Association of Trial Lawyers of America- New Jersey, the NewJersey State Bar Association, the Independent Insurance Agents & Brokers of New Jersey, the Insurance Council ofNew Jersey, the American Insurance Association, and the Property Casualty Insurers Association of America. Wenow reverse.
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Part 5 - Sec B
Major Car Crash Verdict in New Jersey State Supreme CourtFREE Major car crash verdict information
Part 1
Major Car Collision Verdict in New Jersey State Supreme CourtFREE Major car collision verdict information
Major Car Accident Verdict
Major Car Accident Verdict in the NJ State Supreme Court won by Franklin SolomonOur own Franklin Solomon in the NJ State Supreme Court won a major car accident verdict
