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 5 of major car collision verdict won by Franklin Solomon of Weitz & Luxenberg.

V.

Section A.

Plaintiff and defendants argue that the Legislature ’s findings and declarations set forth in N.J.S.A. 39:6A- 1.1(b)(AICRA ’s preamble) support their interpretations of the limitation on lawsuit threshold. Those findings anddeclarations, in relevant part, state:

Whereas, The principle underlying the philosophical basis of the no- fault systemis that of a trade- off of one benefitfor another; in this case, providing medicalbenefits in return for a limitation on the right to sue for non- seriousinjuries; and

Whereas, While the Legislature believes that it is good public policy to provide medical benefits on a first party basis,without regard to fault, to persons injured in automobile accidents, it recognizes thatin order to keep premium costs down, thecost of the benefit must be offset by are duction in the cost of other coverages,most notably are striction on the right ofpersons who have non- permanent or non- serious injuries to sue for pain and suffering; and

. . . .

Whereas, To meet these goals, thislegislation . . . provides for a revisedlawsuit threshold for suits for painandsuffering which will eliminate suits forinjuries which are not serious or permanent,including those for soft tissueinjuries . .. .

[N.J.S.A. 39:6A- 1.1(b) (emphasis added).]

A court may turn to a statute ’s preamble as an aid in determining legislative intent. Bass v. Allen Home ImprovementCo., 8 N.J. 219, 225 (1951). The preamble, however, should be read in harmony with the statute that it introduces,whenever possible. See In re Passaic County Utils. Auth., 164 N.J. 270, 300 (2000) ( “ ‘[E]ach part or section [of thestatute] should be construed in connection with every other part or section so as to produce a harmonious whole ’ . . .. ” (quoting Norman J. Singer, Sutherland Statutory Construction § 46.05 at 103 (5th ed. 1992))); State v. Green, 62N.J. 547, 554 (1973) ( “It is basic in the construction of legislation that every effort should be made to harmonize thelaw relating to the same subject matter. ”). To the extent that the preamble is at variance with the clear andunambiguous language of the statute, the preamble must give way. State v. Mundet Cork Corp., 8 N.J. 359, 366, cert.denied, 344 U.S. 819, 73 S. Ct. 14, 97 L. Ed. 637 (1952).

Defendants claim that the preamble demonstrates that a plaintiff must prove that a threshold- vaulting injury is bothserious and permanent, and, therefore, Oswin ’s serious life impact requirement survived the amendments to N.J.S.A.39:6A- 8(a). They reason that the preamble ’s language ? that the lawsuit threshold is “a limitation on the right to suefor non- serious injuries ” ? is a clear signal that the Legislature intended a plaintiff to meet the Oswin standard inaddition to proving that the injury fell within one of the threshold categories. Conversely, plaintiff contends that allthe statutorily defined threshold injuries are serious injuries, but not all are permanent, which is why the preamblespeaks of those injuries in the disjunctive.

The legislative findings and declarations give an overview of the limitation on lawsuit threshold in N.J.S.A. 39:6A- 8(a), and we read the two provisions, as we must, in harmony with each other. We find that the preamble ’s language,which speaks in the disjunctive of non- serious or non- permanent injuries, is merely descriptive of the six statutorilydefined threshold categories of N.J.S.A. 39:6A- 8(a). Five of those categories encompass what would commonly beconsidered permanent injuries: injuries causing “death; ” “dismemberment; ” “significant disfigurement or significantscarring; ” “loss of a fetus; ” and “a permanent injury to a body part or organ within a reasonable degree of medicalprobability, other than scarring or disfigurement. ” N.J.S.A. 39:6A- 8(a). Only a displaced fracture could possiblyqualify as a non- permanent injury, provided the fracture could heal well enough for the bone to function normally. Inputting a displaced fracture in a separate category, the Legislature, in effect, classified such an injury as serious. Wecannot find a suggestion in the statute or its history that the Legislature did not regard the threshold injuries to beserious injuries. The logical conclusion is that the Legislature created those threshold categories for the purpose ofdenominating six classes of serious injuries.

Indeed, Governor Whitman, who signed AICRA into law, viewed the limitation on lawsuit threshold as replacing the “temporary, nonserious injuries ” that qualified under the verbal threshold. See Part V.C., infra at (slip op. at 37).

At best, defendants can argue that there appears to be ambiguity between the preamble and the statute. We will notlabor, however, to find a conflict between the Legislature ’s findings and declarations in N.J.S.A. 39:6A- 1.1(b) andthe text of N.J.S.A. 39:6A- 8(a). The threshold injuries defined in N.J.S.A. 39:6A- 8(a) are not all permanent injuries,i.e., displaced fractures. The Legislature, however, must have considered an injury necessary to vault the threshold tobe a serious injury. We cannot conclude that the Legislature excluded the Oswin serious life impact standard fromthe limitation on lawsuit threshold with the intention of inserting it through an oblique reference in the preamble.

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