Opinion
DOCKET NO. A-2791-15T2
07-11-2017
JACQUELINE LUCA and ERNESTO LUCA, Plaintiffs-Appellants, v. GEICO INDEMNITY COMPANY, Defendant-Respondent.
Gay, Chacker & Mittin, P.C., attorneys for appellants (Brian S. Chacker, on the brief). Law Office of Eric Bennett, attorneys for respondent (Beth M. Csontos, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges O'Connor, Whipple and Mawla. On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4244-13. Gay, Chacker & Mittin, P.C., attorneys for appellants (Brian S. Chacker, on the brief). Law Office of Eric Bennett, attorneys for respondent (Beth M. Csontos, on the brief). PER CURIAM
In this automobile negligence action, plaintiff Jacqueline Luca and her spouse, Ernesto Luca, appeal from a November 6, 2015 Law Division order granting defendant Geico Indemnity Company summary judgment dismissal of Ms. Luca's claim for non-economic damages. The dismissal was premised upon the trial court's determination Ms. Luca's injuries did not satisfy the requirements of the limitation on lawsuit threshold established by the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, specifically N.J.S.A. 39:6A-8(a) and 8.1(a). Plaintiffs also appeal from the December 18, 2015 order denying their motion for reconsideration of the November 6, 2015 order. We affirm.
Unless otherwise indicated, for the balance of the opinion the singular term "plaintiff" is used to refer to Jacqueline Luca only.
I
We glean the following from the summary judgment record. In 2011, plaintiff was rear-ended by an uninsured motorist; it is undisputed plaintiff was not at fault for the accident. At that time, plaintiff was insured under an automobile liability insurance policy issued by defendant, which contained a provision providing uninsured motorist benefits. In 2013, plaintiff filed a complaint against defendant seeking to recover benefits under this provision to compensate her for the injuries she sustained as a result of the accident; her spouse asserted a per quod claim.
Plaintiff's policy was subject to the limitation on lawsuit threshold, see N.J.S.A. 39:6A-8(a), -8.1(a). An insured who opts for this limitation generally must show the following when seeking to recover non-economic damages from the tortfeasor, or from his or her automobile insurance carrier when seeking benefits under an uninsured motorist policy. First, an insured must show the existence of any claimed injury by objective, medical evidence. Davidson v. Slater, 189 N.J. 166, 181 (2007). The necessary objective evidence must be "derived from accepted diagnostic tests and cannot be 'dependent entirely upon subjective patient response.'" Ibid. (quoting N.J.S.A. 39:6A-8(a)).
Second, an insured is required to show the injuries sustained as a result of an accident were permanent "within a reasonable degree of medical probability." N.J.S.A. 39:6A-8(a). A "permanent injury" is defined in this statute as one that "has not healed to function normally and will not heal to function normally with further medical treatment." Ibid.
In the alternative, a plaintiff may show he or she has "sustained a bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; [or] loss of a fetus." N.J.S.A. 39:6A-8(a). Here, clearly death is inapplicable, and plaintiff is not alleging she sustained any of these other injuries. --------
In October 2011, plaintiff's treating orthopedist, Lawrence I. Barr, D.O., authored a report stating plaintiff sustained various injuries as a result of the car accident. The injuries were: a cervical sprain/strain; a lumbar sprain/strain; C-7 radiculopathy; intermittent lower extremity "complaints"; and bilateral trapezial myofascitis. In addition, MRIs of plaintiff's cervical and lumbar spines revealed bulging discs, and an electromyogram (EMG) study of the left arm confirmed cervical radiculopathy. Dr. Barr did not render an opinion on the question of permanency.
Plaintiff's treating neurologist, Alexander M. Pendino, D.O., authored two reports in August 2011. Dr. Pendino determined plaintiff suffered from the same conditions found by Dr. Barr, although further determined an EMG study he ordered ruled out lumbar radiculopathy. Dr. Pendino also did not opine on the question of permanency.
From August 2011 to February 2012, plaintiff was treated by Barry A. Korn, D.O., for pain management. During this period, Dr. Korn authored one report, dated August 23, 2011, about plaintiff's condition. In addition, every time he treated plaintiff over this six month period, he completed a written assessment of her condition.
According to his report and written assessments, plaintiff suffered from myofascial pain syndrome; occipital neuralgia; C-6 and C-7 radiculopathy; left median nerve dysfunction; left ulnar nerve dysfunction and neuropathy; and right ulnar nerve dysfunction. Dr. Korn also made note of the fact radiologic studies revealed plaintiff had disc bulges on her lumbar and cervical spines, and nerve function studies revealed she had left carpal tunnel syndrome. Dr. Korn did state plaintiff's injuries were caused by the accident, but he did not address whether any of her injuries were permanent.
After plaintiffs filed their complaint, in August 2015 the parties participated in mandatory arbitration conducted pursuant to Rule 4:21A-1(a)(1). The arbitrator awarded plaintiffs $30,000, in the aggregate, in damages. Dissatisfied with the arbitrator's award, plaintiffs filed for a trial de novo. See R. 4:21A-6(b)(1).
After the close of discovery, defendant filed a motion for summary judgment dismissal. In opposition to the motion, plaintiff did not submit any updated experts' reports. On November 6, 2015, the court granted partial summary judgment and dismissed plaintiff's claim for non-economic damages, principally because plaintiff could not show she sustained a permanent injury as defined by N.J.S.A. 39:6A-8(a). The court denied defendant's motion to dismiss plaintiff's economic damages.
Plaintiff filed a motion for reconsideration, in which she submitted a new report from Dr. Korn, dated November 20, 2015. In that report, Dr. Korn stated "my initial diagnoses were intended to convey that Ms. Luca's injuries should be considered permanent." According to his latest report, the diagnoses he intended to state were permanent included myofascial pain syndrome; C-7 radiculopathy; carpal tunnel syndrome; and the lumbar and cervical bulging discs.
Although he had not mentioned these conditions in either his first report or his subsequent written assessments of plaintiff's condition from August 2011 to February 2012, Dr. Korn's November 20, 2015 report stated the following were also permanent conditions: cervical, thoracic, and lumbosacral sprain/strain; "intermittent lower extremity radicular complaints"; and bilateral trapezii myofascitis.
As for the complaints he found to be permanent, Dr. Korn did not state, either expressly or implicitly, whether his definition of the term permanent was the same as that defined in N.J.S.A. 39:6A-8(a), specifically, that the injuries were ones that have "not healed to function normally and will not heal to function normally with further medical treatment."
The court denied plaintiff's motion for reconsideration, finding plaintiff could have provided a report stating plaintiff's injuries were permanent by the time the original motion was heard. After the motion was denied, the parties settled plaintiff's economic damages, resolving all outstanding issues. This appeal ensued.
II
On appeal, plaintiff contends the trial court erred when it granted defendant summary judgment on her claim for non-economic damages, arguing there was sufficient evidence or, at the least, a question of fact whether her injuries were permanent. We disagree and affirm.
We review a trial court's grant of summary judgment de novo, employing the same standard used by the trial court. Davis v. Devereux Found., 209 N.J. 269, 286 (2012); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). An appellate court reviews "the grant of summary judgment 'in accordance with the same standard as the motion judge.'" Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c).
Summary judgment may be denied "only where the party opposing the motion has come forward with evidence that creates a 'genuine issue as to any material fact challenged.' That means a non-moving party cannot defeat a motion for summary judgment merely by pointing to any fact in dispute." Brill, supra, 142 N.J. at 529. The court must grant all legitimate inferences in favor of the non-moving party. Id. at 536.
Here, before the close of discovery, plaintiff failed to secure and serve any experts' reports stating she sustained a permanent injury as defined by N.J.S.A. 39:6A-8(a). Although the report plaintiff secured from Dr. Korn after partial summary judgment was granted set forth conditions he claimed were permanent, he failed to state these conditions were permanent as that term is defined in the subject statute. That is, that her injuries were of a kind that will not heal to function normally, even with further medical treatment.
Defendant argues that, in addition, there is no objective medical evidence of the existence of some of these conditions, such as myofascial pain syndrome; lower extremity radicular complaints; and sprain and strain of the cervical, thoracic, and lumbosacral spines. We note plaintiff did provide objective evidence she has bulging discs, C-7 radiculopathy, and carpal tunnel syndrome, and that these conditions were caused by the car accident. However, in order to defeat summary judgment, plaintiff was obligated to present an expert's opinion that her injuries are permanent because they have not "healed to function normally and will not heal to function normally with further medical treatment." Because she failed to do so, we conclude the November 6, 2015 order granting defendant summary judgment on plaintiff's claim for non-economic damages was properly entered.
The December 18, 2015 order denying plaintiff's motion for reconsideration was also properly entered. Plaintiff failed to show the court had either relied upon a "palpably incorrect or irrational basis," or "failed to appreciate the significance of probative, competent evidence." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Plaintiff did provide new evidence, but such evidence still failed to provide the opinion necessary to establish her injuries cannot heal even with additional medical treatment. Moreover, the new evidence was available not only before the summary judgment motion was decided, but before the close of evidence; thus, the new evidence failed to provide an appropriate basis for reconsideration of the November 6, 2015 order. See Del Vecchio v. Hemberger, 388 N.J. Super. 179, 189 (App. Div. 2006); Cummings, supra, 295 N.J. Super. at 384.
To the extent we have not addressed any of plaintiffs' remaining arguments, it is because they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION