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 2 of major car collision verdict won by Franklin Solomon of Weitz & Luxenberg.
II.
This State ’s more than thirty- year history with no fault insurance has been marked by legislative efforts to control therising cost of automobile insurance by placing restrictions on an accident victim ’s right to sue for noneconomicdamages. In 1972, the Legislature enacted the “ ‘New Jersey Automobile Reparation Reform Act, ’ ” N.J.S.A. 39:6A- 1, commonly referred to as the “No Fault Act. ” Caviglia v. Royal Tours of Am., 178 N.J. 460, 466 (2004). The NoFault Act ushered in “a system of first- party self- insurance ” that provided an automobile accident victim prompt “payment of out- of- pocket medical expenses ” without regard to fault. Caviglia, supra, 178 N.J. at 466. One of thegoals of the Act was to eliminate litigation over non- serious injuries. See Roig v. Kelsey, 135 N.J. 500, 511 (1994).The original No Fault Act “precluded an . . . insured motorist or passenger from suing a[] . . . tortfeasor for economicor noneconomic damages[,] ” unless she suffered permanent injuries or her treatment costs exceeded $200 ? the “monetary threshold. ” Caviglia, supra, 178 N.J. at 467; see also Oswin, supra, 129 N.J. at 295- 96 (citing L. 1972, c.70, § 8). The No Fault Act restricted the insured victim ’s unlimited right to sue in exchange for the benefit of “lowerpremiums and prompt payment of medical expenses. ” Caviglia, supra, 178 N.J. at 467 (citing Roig, supra, 135 N.J.at 511- 12).
However, the Act did not deliver on the promise of containing the spiraling cost of automobile insurance. Id. at 468;Oswin, supra, 129 N.J. at 296. Over the decades, the Legislature repeatedly amended the Act, seeking to achieve theelusive balance of making premiums affordable while allowing injured automobile accident victims to pursuecompensation for their injuries. See Caviglia, supra, 178 N.J. at 467- 68. In 1984, the New Jersey AutomobileInsurance Freedom of Choice and Cost Containment Act introduced “tort options, ” allowing insureds to chooseeither the old $200 threshold or a new $1,500 monetary threshold that would have to be satisfied before seeking painand suffering damages for non- permanent injuries. Oswin, supra, 129 N.J. at 296 (citing L. 1983, c. 362, § 14); seealso Caviglia, supra, 178 N.J. at 468 n.3. Under this legislation, the policyholder who selected the $1,500 thresholdwould benefit from substantially lower premiums but could not sue for pain and suffering damages unless hermedical expenses exceeded that amount. Caviglia, supra, 178 N.J. at 468 n.3.
The 1988 amendment to N.J.S.A. 39:6A- 8(a) removed the monetary threshold template and replaced it with one thatallowed automobile insurance policyholders to choose between two new options: paying higher premiums for theright to an unrestricted recovery of noneconomic damages or paying lower premiums for a limited right of recoveryfor such damages. L. 1988, c. 119, § 6; see also Caviglia, supra, 178 N.J. at 470; Oswin, supra, 129 N.J. at 297.Under this second option, known as the “verbal threshold, ” the insured victim could sue for noneconomic damagesonly if her injuries fit into one of nine statutory categories. Oswin, supra, 129 N.J. at 297. The phrase “verbalthreshold ” came into vogue because the plaintiff had to prove that an injury or condition satisfied the statutory words . Id. at 296.
A plaintiff vaulted the verbal threshold if she demonstrated that she suffered an injury resulting in:
[1] death; [2] dismemberment; [3]significant disfigurement; [4] a fracture;[5] loss of a fetus; [6] permanent lossofuse of a body organ, member, function orsystem; [7] permanent consequentiallimitation of use of a body organ ormember;[8] significant limitation of use of a bodyfunction or system; or [9] a medicallydetermined injury orimpairment of a nonpermanent nature which prevents the injuredperson from performing substantially all ofthematerial acts which constitute that person ’s usual and customary dailyactivities for not less than 90 days duringthe180 days immediately following theoccurrence of the injury or impairment . . .. ”
[L. 1988, c. 119, § 6; Oswin, supra, 129 N.J. at 315.]
In Oswin, supra, this Court held that the verbal threshold required a plaintiff to prove not only that her injury fellwithin one of the nine statutory categories, but also that “the injury had a serious impact on the plaintiff and her life. ”129 N.J. at 318 (quoting Oswin v. Shaw, 250 N.J. Super. 461, 470 (App. Div. 1991), aff ’d, Oswin, supra, 129 N.J. at294, 318). 6 After Oswin, supra, a New Jersey plaintiff had to prove not only that the injury fit within one of the ninethreshold categories, but also that it caused a serious life impact.
In Oswin ’s wake, appellate courts grappled with applying the serious life impact test to the myriad factual scenariosarising in automobile accident cases. One appellate panel, surveying the reported opinions following Oswin, supra,concluded that it was “difficult to find an analytical thread unifying subsequent judicial treatment of what constitutesa ‘serious impact ’ upon a plaintiff ’s life. ” James, supra, 354 N.J. Super. at 591 (citing cases).
In the ten years after the passage of the 1988 threshold, the cost of medical expense benefits substantially increasedand insurance premiums soared. N.J.S.A. 39:6A- 1.1(b). In responding to the need to control the spiraling costs toboth consumers and insurance companies, the Legislature enacted “the ‘Automobile Insurance Cost Reduction Act ’ ”in 1998. N.J.S.A. 39:6A- 1.1(a). AICRA was a comprehensive legislative package with a multi- pronged approachaimed at achieving the goals of containing costs, rooting out fraud within the system, and ensuring a fair rate ofreturn for insurers. N.J.S.A. 39:6A- 1.1(b). One part of that package was a new lawsuit threshold.
AICRA reconfigured the verbal threshold ’s nine categories into six in the limitation on lawsuit threshold. N.J.S.A. 39:6A- 8(a). The limitation on lawsuit threshold bars a recovery for pain and suffering unless the plaintiff suffers aninjury that results in 1) “death; ” 2) “dismemberment; ” 3) “significant disfigurement or significant scarring; ” 4) “displaced fractures; ” 5) “loss of a fetus; ” or 6) “a permanent injury within a reasonable degree of medicalprobability, other than scarring or disfigurement. ” Ibid. The statute explains that “[a]n injury shall be consideredpermanent when the body part or organ, or both, has not healed to function normally and will not heal to functionnormally with further medical treatment. ” Ibid.
Although the categories of death, dismemberment, and loss of a fetus remained unchanged from the 1988 threshold,AICRA recast the other categories of injuries. Significant scarring was added to the significant disfigurementcategory. While any fracture vaulted the 1988 threshold, AICRA limited that category to displaced fractures, a moreserious type of fracture involving a complete separation of a broken bone. The final four categories of the old verbalthreshold were deleted and replaced in AICRA with the permanent injury category.
Moreover, the Legislature imposed additional requirements for a plaintiff to vault the new threshold not contained inthe 1988 threshold. Under AICRA, within sixty days following the filing of an answer to the complaint, the plaintiffmust provide the defendant with a certification from an appropriately licensed physician stating that she suffered aninjury defined in one of the six statutory categories. N.J.S.A. 39:6A- 8(a). The physician who issues the certificationmust base his findings on “objective clinical evidence ” and make his statements “under the penalty of perjury. ” Ibid. To the extent that objective evidence depends on medical and diagnostic testing, the procedures must be performedin accordance with accepted protocols pursuant to N.J.S.A. 39:6A- 4(a) and N.J.S.A. 39:6A- 4.7, and “may not beexperimental in nature or dependent entirely upon subjective patient response. ” N.J.S.A. 39:6A- 8(a). A physicianwho purposely or knowingly files a false or misleading certification commits a fourth- degree crime with apresumption of incarceration and faces forfeiture of his medical license. Ibid. Those rigorous standards, explicitlyspelled out in AICRA, were intended to ensure that only honest and reliable medical evidence and testing procedureswould be introduced to prove that an injury meets the threshold.
Finally, a plaintiff who fails to file a timely certification is subject to an array of sanctions that include reimbursingthe defendant with reasonable attorney ’s expenses or dismissal of the complaint. Casinelli v. Manglapus, 181 N.J.354, 365 (2004).
The complete overhaul of the verbal threshold was only one piece of a larger reform plan to bring down costs withinthe automobile tort system. AICRA created the Office of the Insurance Fraud Prosecutor, N.J.S.A. 17:33A- 16, a newdispute resolution procedure concerning personal injury protection (PIP) benefits, N .J.S.A. 39:6A- 5.1, and a new “basic automobile insurance policy ” that limited medical expense reimbursements under PIP coverage, N.J.S.A.39:6A- 3.1. 7 AICRA amended the definition of medical expenses to cover only “reasonable and necessary expensesfor treatment or services. . . . ” N.J.S.A. 39:6A- 2(e).
After the passage of AICRA, the Appellate Division applied Oswin ’s serious life impact test to the limitation onlawsuit threshold. James, supra, 354 N.J. Super. at 596; Rios, supra, 354 N.J. Super. at 580. Our courts have had tomake exceedingly fine distinctions in determining what constitutes a serious life impact since the inception of theOswin standard to the present day. See, e.g., Martin v. Chhabra, 374 N.J. Super. 387, 394 (App. Div. 2005); Bennettv. Lugo, 368 N.J. Super. 466, 471, 477 (App. Div.), certif. denied, 180 N.J. 457 (2004); Tierra v. Salazar, 356 N.J.Super. 586, 587- 88 (App. Div. 2003). We cannot take issue with the observation by the Appellate Division in James,supra, that it has been difficult to discern a consistent pattern to the application of the Oswin test. Compare James,supra, 354 N.J. Super. at 596 (finding no serious life impact when plaintiff had “difficulty holding on to her two- yearold child, going up and down a lot of stairs, sitting down and standing up quickly, . . . vacuuming and sweeping andbathing her daughter ”), Montemayor v. Signorelli, 339 N.J. Super. 482, 485- 87 (App. Div. 2001) (finding no seriouslife impact when plaintiff missed days from nursing job, had difficulty “ ‘lifting and bending . . . at work and athome, ’ ” and had to give up biweekly bowling), Sherry v. Buonansonti, 287 N.J. Super. 518, 521- 22 (App. Div.)(finding no serious life impact when plaintiff ’s recreational activities, i.e., swimming and dancing, were limited, buthe was able to do housework and return to work), certif. denied, 144 N.J. 588 (1996), and Chalef v. Ryerson, 277N.J. Super. 22, 27, 38 (App. Div. 1994) (finding no serious life impact when plaintiff missed two months of work, “suffer[ed] pain during periods of prolonged sitting or standing, ” and could not ride horses or ski), with Natale v.Kisling, 336 N.J. Super. 198, 204 (App. Div. 2001) (finding evidence of serious life impact when plaintiff had “substantial loss of sex, loss of overtime, and inability to perform housework ”), Moreno v. Greenfield, 272 N.J.Super. 456, 465- 66 (App. Div. 1994) (finding evidence of serious life impact when plaintiff had difficulty bending,doing daily chores, sleeping on her stomach, and was unable to go dancing as often as she used to, or go to gymregularly), Arencibia v. Rosas, 270 N.J. Super. 339, 348- 49 (App. Div. 1994) (finding evidence of serious lifeimpact when plaintiff had difficulty working because she could not exercise, lift heavy objects, or sit for long periodswithout pain), and Cineas v. Mammone, 270 N.J. Super. 200, 21112 (App. Div. 1994) (finding evidence of seriouslife impact when plaintiff could not perform household chores, paint or repair his home, could no longer workovertime, and could not have “sexual relations . . . as frequently as before the accident ”).
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