KATHERINE GIANNETTI v. V. MONICA TAYLOR-WILLNER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0332-04T1332-04T1

KATHERINE GIANNETTI,

Plaintiff-Appellant/

Cross-Respondent,

V.

MONICA TAYLOR-WILLNER,

Defendant-Respondent/

Cross-Appellant.

________________________________________________________________

 

Argued October 11, 2005 - Decided

Before Judges Collester and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-11062-01.

Bridget Saro argued the cause for appellant (Frank J. Zazzaro, attorney; Ms. Saro, of counsel and on the brief).

Andrew L. Stern argued the cause for respondent (Sullivan and Graber, attorneys; Mr. Stern, of counsel; Melissa A. Natale, on the brief).

PER CURIAM

Plaintiff, Katherine Giannetti, appeals from a summary judgment dismissing her complaint for personal injuries arising out of a motor vehicle accident for failure to satisfy the "limitation on lawsuit" threshold under the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a, based upon plaintiff's inability to meet the subjective standard that the injuries she suffered resulted in a serious impact on her life. See Oswin v. Shaw, 129 N.J. 290, 318 (1992). Plaintiff's injuries, according to the reports of her medical experts, included several disc herniations, as confirmed by MRI studies and other objective indicia, were caused by the accident, and are permanent. Defendant did not contend in the trial court and does not contend on appeal that, applying the summary judgment standard, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), plaintiff did not provide sufficient evidence to withstand summary judgment with respect to the objective prong of the Oswin test, namely that she suffered permanent injuries as defined in N.J.S.A. 39:6A-8a caused by the accident.

During the pendency of this appeal, our Supreme Court decided DiProspero v. Penn, 183 N.J. 477 (2005), holding that the limitation on lawsuit option under AICRA does not require proof of a serious life impact. Because the serious life impact prong of the Oswin test was the sole basis for the granting of summary judgment in favor of defendant, the summary judgment order must be vacated.

In the trial court, defendant also asserted another ground for dismissal of the complaint, namely the failure of plaintiff to file the physician certification required by N.J.S.A. 39:6A-8a. The motion judge declined to dismiss the complaint on that basis, concluding that the proper remedy under the facts and circumstances of this case would be to afford plaintiff "some time" to provide the certification because plaintiff had furnished defendant with "enough information" and because defendant had not "been prejudiced." Defendant cross-appeals from that determination, contending the judge erred in denying dismissal of the complaint because of plaintiff's failure to provide the physician certification.

The accident occurred on December 1, 1999. Sometime in 1998, plaintiff and her husband were divorced and ceased living together. The insurance policy covering the vehicle owned and operated by plaintiff when she was involved in the subject accident was issued to her husband, who was designated as the named insured. Plaintiff was listed on the policy as an additional driver. That is the policy that was in effect at the time of the accident. The policy contained a limitation on lawsuit provision.

From the outset of this litigation, plaintiff contended that she was not bound by her former husband's selection of the limitation on lawsuit option. She filed her complaint on December 11, 2001. The complaint was twice dismissed, once for lack of prosecution and once for plaintiff's failure to comply with discovery obligations. Each time it was restored. Thus, there were significant periods of time that the litigation was in an inactive status.

It was not until March 30, 2004 that defense counsel first requested that plaintiff provide a physician certification. Plaintiff's counsel immediately replied that no certification was required because it was his contention that plaintiff was not subject to the limitation on lawsuit option chosen by her former husband. An exchange of correspondence and documents on the subject ensued.

Defendant filed her summary judgment motion on July 22, 2004, less than four months after first requesting the physician certification, and years after the initiation of the litigation and filing of her answer, which triggered the time requirement for submitting a physician certification. See N.J.S.A. 39:6A-8a.

The motion was argued on August 31, 2004. The judge rejected plaintiff's argument that she was not subject to the limitation on lawsuit policy provision. Plaintiff does not dispute that determination on appeal. Because summary judgment was immediately granted and an order to that effect signed on August 31, 2004, plaintiff never furnished a physician certification. Instead, these appellate proceedings commenced.

One month after the granting of summary judgment, our Supreme Court held "that the physician certification is neither a fundamental element of the AICRA cause of action nor analogous to a pleading and therefore, that neither dismissal with nor without prejudice is compelled." Casinelli v. Manglapus, 181 N.J. 354, 355-56 (2004). The Court equated a late filing of a physician certification to a discovery violation, "with respect to which the court may resort to any of a full panoply of remedies, ranging from an order to compel production through dismissal, depending on the facts." Id. at 356. The Court made clear that selection of the appropriate remedy is within the discretion of the trial judge, and that the remedy chosen should save for trial meritorious claims of injured victims while allowing for dismissal in cases in which a plaintiff cannot or will not supply a certification or in which the late filing has irremediably prejudiced the defendant. Id. at 365.

Selection of the appropriate remedy is fact-sensitive and should include consideration of factors "including the willfulness of the violation, the ability of plaintiff to produce the certification, the proximity of trial, and prejudice to the adversary." Ibid. Applying these principles, we find no mistaken exercise of discretion in the motion judge's action. The failure of plaintiff to have previously furnished the certification was not willful, but was a consequence of a good faith, albeit erroneous, position that plaintiff was not subject to the limitation on lawsuit threshold. The court properly found there was no prejudice to defendant, who had been furnished all of plaintiff's medical reports describing her injuries, the objective medical evidence upon which the injuries were based, and permanency opinions. Because those reports had been furnished, it is reasonable to anticipate that plaintiff will be able to obtain an appropriate certification and has expressed to us the ability and willingness to do so immediately if the matter is remanded. Although a trial date was imminent at the time of the summary judgment motion, that factor alone would not outweigh the combined qualitative weight of the other factors that lean towards a remedy short of dismissal.

The motion judge's chosen remedy, an "order to compel," is one of the discovery-type sanctions suggested by the Court in Casinelli. Ibid. That choice was well within the judge's broad discretionary authority under the circumstances of this case.

Accordingly, with respect to defendant's cross-appeal, we affirm the motion judge's denial of defendant's motion to dismiss the complaint on the grounds that no physician certification had been furnished. On plaintiff's appeal, we reverse and remand for trial. However, consistent with the motion judge's ruling with respect to the physician certification, we order that plaintiff provide defendant with the required physician certification within thirty days of the date of this opinion.

Affirmed in part; reversed and remanded in part.

 

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A-0332-04T1

October 25, 2005