Opinion
Civ. No. 97-5007 (DRD)
January 20, 1999
Thomas J. Auth, Esq., Closter, New Jersey, Attorneys for Plaintiffs.
Daniel G.P. Marchese, Esq., McDermott McGee, Millburn, New Jersey, Attorneys for Defendant Ann Marie Holland.
O P I N I O N
In this diversity action defendant Ann Marie Holland moves for summary judgment pursuant to Fed.R.Civ.P. 56(c). For the reasons set forth below, the motion will be denied.
BACKGROUND
This is an action regarding injuries allegedly sustained by plaintiff Frederick Tee in a motor vehicle accident that occurred on the New Jersey Turnpike in Newark, New Jersey on August 11, 1996. Plaintiff alleges that he was injured when defendant's car struck his car. Plaintiff's wife, Donna Tee, claims per quod.
According to plaintiff the impact was great because he was moving at about 30-35 miles per hour when defendant's car struck his car. Marchese Cert., Ex. C at 25:5-12. At the moment of impact plaintiff's left shoulder hit the post between the doors and he "jerked back and forth, side to side." Id. at 25:13-19. Plaintiff refused medical treatment at the scene when asked by a New Jersey State Trooper if he needed any treatment. Id. at 33:10-34:1-3. However, at his deposition plaintiff testified that he had injured his left shoulder, neck, lower back and left heel as a result of the impact. Id. at 35:6-9. In his responses to interrogatories, plaintiff stated that he had sustained:
severe and/or serious personal injuries including posterior herniation of the nucleus pulposus at L4-L5 and secondary pain syndrome; posterior bulge and protrusion of the disc at L5-S1; left L5-S1 nerve root dysfunction, lumbar sprain; straightening of the normal lordotic curve; ligamentous laxity and/or damage at C4- C5; trauma to the left shoulder; post-traumatic cervical sprain with secondary pain syndrome; moderate to sever[e] hypertonicity of the upper cervical spine; moderate to severe hypertonicity of the lower cervical spine; severe hypertonicity of the mid thoracic; trauma to the left heel area.
Marchese Cert., Ex. D at Response 3.
Plaintiff first sought medical treatment for his alleged injuries with Dr. Henry Hall, a chiropractor, on the Thursday following the accident. Marchese Cert., Ex. C at 34:12-24. An MRI of plaintiff's lumbar spine revealed posterior herniation of the nucleus pulposus at L4/L5 and a posterior bulge and protrusion of the disc at L5/S1. Marchese Cert., Ex. E. Plaintiff was treated by Dr. Ellen Ginsberg with a course of physical therapy for his alleged injuries from November 22, 1996 to April 10, 1997. Marchese Cert., Ex. C at 44:24-45:9 and Ex. D at Response 7. According to defense expert Dr. David J. Greifinger, plaintiff has a "mild degree of permanency" from his lumbar spine injuries related to the accident. Marchese Cert., Ex. F.
At his deposition plaintiff testified that he currently experiences pain in his lower back and pain shooting down both legs, Marchese Cert., Ex. C at 52:8-12, and pain and discomfort when he sits or stands for long periods. Id. at 67:23-25. He testified that his shoulder and neck feel "okay" and his heel feels "all right." Id. at 52:24-25; 53:3-5; 54:8-11. He feels "a little bit" better than he did just after the accident. Id. at 54:2-4.
Plaintiff was self-employed on the date of the accident. Id. at 7:13-16. He drove a 20-foot long refrigerated box truck distributing beverages to various delis, minimarts and bagel shops in the Bronx and Westchester County, New York. Id. at 7:19-8:4; 14:11-16. Plaintiff did not miss any time from work as a result of the accident and has continued to drive his truck from the date of the accident to the present. Id. at 54:14-23; 55:1-5. Plaintiff continues to unload goods from his truck and deliver them to the various stores using a hand-truck. Id. at 56:16-24.
While he vacuumed, mopped, cleaned windows and did laundry before the accident, plaintiff now performs these household tasks only once in a while and feels pain when he does so. Id. at 59:23-60:14. Plaintiff played softball at least 10 times each spring before the accident and has not attempted to play since the accident. Id. at 58:15-25. No doctor has told him that his injuries prohibit him from playing softball. Id. at 59:1-3. While plaintiff claims that he can no longer work on his wife's "piece of junk" 1978 Thunderbird or his 1981 Cordoba, these cars were not owned by him or his wife at the time of the accident. Id. at 61:16 to 62:9.
Plaintiff testified that he engaged in sexual relations with his wife approximately 2-3 times per week before the accident and only once or twice each month after the accident. Id. at 64:1- 12. His wife attempts to initiate sexual relations with him at least 3-4 times per week at present and he does attempt sexual relations with her at least as many times weekly. Id. at 67:2-7. He is not physically limited while having sex, and can still engage in that activity when he is sore. Id. at 67:16-20; 71:24 to 72:3.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the moving party establishes that "there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the non- moving party to carry its burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Once the moving party has carried its burden under Rule 56, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts in question." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986), rev'g, 723 F.2d 238 (3d Cir. 1983). The opposing party must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. Sound Ship Bldg. Corp. v. Bethlehem Steel Co., 533 F.2d 96, 99 (3d Cir.), cert. denied, 429 U.S. 860 (1976).
At the summary judgment stage the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The mere existence of some alleged factual dispute between the parties, however, will not defeat an otherwise properly supported motion for summary judgment. Id. at 247-248.
ANALYSIS
N.J.S.A. 17:28-1.4, the so-called "deemer" statute, states in pertinent part:
Any insurer authorized to transact or transacting automobile or motor vehicle insurance business in this State . . . which sells a policy providing automobile or motor vehicle liability insurance coverage, or any similar coverage, in any other state or in any province of Canada, shall include in each policy coverage to satisfy at least the liability insurance requirements of [N.J.S.A. 39:6B-1] or [N.J.S.A. 39:6A-3], the uninsured motorist insurance requirements of [N.J.S.A. 17:28-1.1], and personal injury protection benefits coverage pursuant to [N.J.S.A. 39-6A-4] or [N.J.S.A. 17:28-1.3], whenever the automobile or motor vehicle insured under the policy is used or operated in this State.
Any liability insurance policy subject to this section shall be construed as providing the coverage required herein, and any named insured . . . under that policy, shall be subject to the tort option specified in [N.J.S.A. 39:6A-8].
N.J.S.A. 17:28-1.4. In Whitaker v. DeVilla, 147 N.J. 341, 356 (1997), the New Jersey Supreme Court determined that N.J.S.A. 17:28-1.4 "impose[s] the verbal threshold on all out-of-state insureds that sustain automobile accident injuries in New Jersey and whose policies were issued by insurers authorized to transact business in New Jersey."
On the date of the accident in the present case plaintiff, a New York resident, was insured by the Progressive Insurance Company, which is authorized to transact insurance business in New Jersey. As a result, under the "deemer" statute plaintiff's auto insurance coverage is subject to New Jersey's verbal threshold, which limits motorists' rights to sue for non-economic loss.
The verbal threshold confines the right to bring a civil action for non-economic loss to those cases where the plaintiff has suffered injuries of a type specifically set forth in the statute. N.J.S.A. 39:6A-8. See also Oswin v. Shaw, 129 N.J. 290 (1992). In listing the categories of injury that permit a plaintiff to sue, the statute reads as follows:
[E]very person or organization legally responsible for his acts or omissions, is hereby exempted from tort liability for noneconomic loss to a person who is subject to this subsection . . . as a result of bodily injury, arising out of the ownership, operation, maintenance or use of such automobile in this State, unless that person has sustained a personal injury which results in [1] death; [2] dismemberment; [3] significant disfigurement; [4] a fracture; [5] loss of a fetus; [6] permanent loss of a body organ, member, function or system; [7] permanent consequential limitation of use of a body organ or member; [8] significant limitation of use of a body function or system; or [9] a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute that person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.
As explained in Oswin, courts deciding motions for summary judgment in verbal threshold cases follow the "summary judgment model": the court decides whether the injury alleged would, if proven, meet the requirements of one of the verbal threshold categories, and the jury decides any factual disputes as to the nature and extent of the injury.Oswin, 129 N.J. at 294. Where there is no factual dispute as to the nature and extent of plaintiff's injuries, the court decides the question of whether the injuries meet the verbal threshold. Where there is a factual dispute as to the nature and extent of the injuries, the court decides wether the injuries would meet the verbal threshold if plaintiff were believed by the fact-finder.
However, the material dispute of fact must be based on objective, credible evidence, not merely on the subjective complaints of the plaintiff. Id. at 318-319; see also Watkins v. Davis, 259 N.J. Super. 482, 494 (Law Div. 1992) (issue cannot be said to be "disputed" unless plaintiff presents objective, credible evidence of injuries), aff'd, 268 N.J. Super. 211 (App.Div. 1993). In addition, plaintiff must establish, by objective, credible evidence, the causal relationship between the injury and the disability alleged as a result thereof, and that the disability has the objective capacity to have a serious impact on plaintiff's life. Sherry v. Buonansonti, 287 N.J. Super. 518, 522 (App.Div.), certif. denied, 144 N.J. 588 (1996).
As further explained by New Jersey courts, the Oswin test establishes two standards that plaintiffs must satisfy to defeat summary judgment under the statute. The first is an objective one: the plaintiff must show the existence of a material fact dispute by credible, objective medical evidence establishing a serious injury that is not based solely on subjective complaints. The second has an objective and a subjective component, and requires the plaintiff to show that the injury has resulted in a disability having a serious impact on his or her life, in addition to objectively showing causation attributable to the accident.Owens v. Kessler, 272 N.J. Super. 225, 230-231 (App.Div. 1994); Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App.Div. 1993).
"[T]he serious impact on lifestyle test must be viewed in terms of recreational and/or social limitations in the sense that a person is no longer as complete `physically' as he/she once was." Shorter v. Leach, 277 N.J. Super. 617, 621 (Law Div. 1994). See also Dabal v. Sodora, 260 N.J. Super. 397, 401 (App.Div. 199 2) ("[A] plaintiff's loss of the physical ability to continue to engage in a social or recreational activity which had been a significant and important component of that plaintiff's way of life constitutes a qualifying `serious impact'");Moreno v. Greenfield, 272 N.J. Super. 456, 464-465 (App.Div. 1994) (plaintiff's "vigorous activity" or lack thereof before the injury and resultant disability are key factors to consider when determining the merits of summary judgment in a verbal threshold case).
In the present case, defendant concedes that plaintiff has met the objective prong of the verbal threshold but argues that she is entitled to summary judgment because plaintiff's injuries have not had a substantial impact on his life. Plaintiff responds that he has satisfied the verbal threshold because the objective evidence demonstrates that his condition "is permanent and severe and will have lifelong consequence[s]." Opp. Br. at 5.
Plaintiff testified at his deposition that he still experiences pain in his lower back and legs and he gets pain in his lower back when he coughs or sneezes. He also testified that he used to play softball every spring and that since the accident he is unable to play; he used to perform household chores before the accident and, although he can still do them, he only does them once in a while because he feels the pain more when he is active; he can't sit, stand or walk for long periods of time; he can pick up his child because it's "a must" but when he does he "feels it"; and since the accident the frequency of sexual relations with his wife has decreased to once or twice a month from two or three times a week because his lower back is sore.
Defendant attempts to downplay plaintiff's testimony regarding his inability to play softball by pointing out that he has not attempted to play since the accident. Surely someone with a permanent back injury shouldn't be required to do that which will cause him pain in order to demonstrate that his physical ability is limited.
Plaintiff also testified that he can no longer work on his wife's "piece of junk" 1978 Thunderbird or his 1981 Cordoba. However, because plaintiff later admitted that these cars were not owned by him or his wife at the time of the accident, that testimony is misleading and irrelevant.
Courts have found that plaintiffs with similar lifestyle limitations have demonstrated that a jury could conclude that a "serious impact" resulted. See, e.g., Cineas v. Mammone, 270 N.J. Super. 200, 211-212 (App.Div. 1994) (plaintiff could not have sexual relations with his wife as frequently as before the accident because of his back injuries and could no longer help his wife with household chores); Cavanaugh v. Morris, 273 N.J. Super. 38, 41 (App.Div. 1994) (plaintiff's injury caused her to experience pain during sex, making the act uncomfortable most of the time).
Although plaintiff does not specify which verbal threshold category he fits into, on the evidence submitted a jury could find that he fits into category 7 ("permanent consequential limitation of use of a body organ or member") or 8 ("significant limitation of use of a body function or system") and summary judgment for defendant is therefore inappropriate. Of course, plaintiff's successful defense of this motion does not guarantee his success at trial. As stated by the Appellate Division, "We do not suggest that a jury would be compelled to make any of these findings in plaintiff's favor. We hold only that the showing on the summary judgment motion provided an adequate basis on which a jury could make favorable findings. And that is all that is necessary to withstand the motion." Cavanaugh, 273 N.J. Super. at 41-42.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment will be denied. An appropriate order follows.
__________________________________ Dickinson R. Debevoise, U.S.S.D.J.
Dated: January, 1999