ROY T. FITHEN et al. v. MARCUS S. JOHNSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0934-04T30934-04T3

ROY T. FITHEN and PHYLLIS A. FITHEN,

Plaintiffs-Appellants,

v.

MARCUS S. JOHNSON,

Defendant-Respondent.

_______________________________________________________________

 

Submitted November 14, 2005 - Decided

Before Judges Cuff and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1353-03.

Stark & Stark, attorneys for appellants (Andrew M. Salmon, of counsel and on the brief).

Garvey, Ballou & Van Dyke, attorneys for respondent (Eleanore A. Rogalski, on the brief).

PER CURIAM

Plaintiffs, Roy T. Fithen and Phyllis A. Fithen, appeal the Law Division's September 10, 2004 order granting summary judgment in favor of defendant, Marcus S. Johnson, on the basis that plaintiff failed to prove that he suffered a qualifying injury to satisfy the statutory limitation on lawsuit threshold to recover non-economic damages. N.J.S.A. 39:6A-8a. Plaintiff's complaint was dismissed because his injury, although documented by objective credible medical evidence, was found not to be the "permanent serious" kind of injury that was sufficient to raise a genuine issue of material fact as to the first prong of the verbal threshold test under AICRA. We reverse and remand for trial.

Plaintiff was injured on January 22, 2002, when the car he was driving on Darrah Lane, at or near its intersection with Route 206 in Lawrence Township, was struck by a vehicle being driven by defendant who, while attempting to make a right hand turn, slid into plaintiff's car. Plaintiff filed suit on May 20, 2003 seeking damages for personal injuries proximately caused by the accident. On September 10, 2004, after the completion of discovery, the court granted summary judgment in favor of defendant for plaintiff's failure to pierce the verbal threshold. This appeal followed.

After emergency room treatment on the day of the accident, plaintiff presented himself two days later for medical evaluation and chiropractic treatment, which plaintiff continued for ten months thereafter. Treatment notes for the period of January 24, 2002 through August 28, 2002 from plaintiff's chiropractic physicians and medical doctor evaluator reveal objective findings on physical examination of spasm on palpation and restricted range of motion to plaintiff's cervical and lumbosacral spine on six occasions.

Plaintiff underwent an MRI of his lumbar spine on August 13, 2002, which revealed a disc bulge at L2-3 and both facet hypertrophy and hypertrophic encroachment upon the neural foramina at L3-4, L4-5 and L5-S1. Plaintiff was discharged on September 10, 2002, as having achieved "maximum improvement."

The November 20, 2002 joint final narrative report of plaintiff's medical doctor, Dr. Fass, and chiropractor, Dr. Grossman, opines that plaintiff sustained permanent and traumatic injury to his lumbosacral spine as a direct consequence of the accident of January 22, 2002, and his course of care continually revealed lumbosacral spine impairment. Dr. Fass also certified to a reasonable degree of medical probability that plaintiff "sustained a permanent injury of a disc bulge at L2-3 that has not healed to function normally and will not heal to function normally with further medical treatment."

We reverse and remand to the trial court for trial in light of the Supreme Court's opinions in DiProspero, supra, Serrano v. Serrano, 183 N.J. 508 (2005) and Juarez v. J.A. Salerno & Sons, Inc., ___ N.J. ___ (November 23, 2005). Serrano concluded that plaintiff need only prove by objective credible medical evidence that he suffered an injury described in N.J.S.A. 39:6A-8a's limitation on lawsuit threshold to recover non-economic damages. Id. at 510.

A plaintiff who alleges that he sustained a permanent injury, other than scarring or disfigurement, in order to survive a motion for summary judgment, must prove that he suffers from a permanent injury to a body part or organ causally related to the accident in issue that has not healed to function normally and will not heal to function normally with further medical treatment. Id. at 519. The Court rejected placing a judicially crafted serious injury standard into the limitation on lawsuit threshold concluding that the Legislature considered the injuries defined in N.J.S.A. 39:6A-8a to be serious by their very nature. Id. at 518. The Court held that a plaintiff who proves an injury defined in N.J.S.A. 39:6A-8a "does not have to clear the additional hurdle of proving a 'serious injury.'" Id. at 510. The additional requirement of N.J.S.A. 39:6A-8a is that a plaintiff must file a certification by a physician that the injury satisfies one of the statutory criteria by reference to objective clinical evidence. DiProspero, supra, 183 N.J. at 488-89.

Here, plaintiff asserts that the evidence he has produced satisfies the sixth category contained in N.J.S.A. 39:6A-8a, "a permanent injury within a reasonable degree of medical probability." In support of this assertion, plaintiff has supplied objective credible medical evidence of a bulging disc at L2-3 confirmed by an MRI. He has also provided evidence of continued spasms and restricted range of motion on physical examination contained in his physician's treatment notes and medical reports. Additionally, he has supplied a physician's certification that his injury is permanent and that further treatment will not restore his lumbar spine to full function.

Accordingly, we are convinced that plaintiff has submitted the requisite evidence to satisfy the limitation on lawsuit threshold that is sufficient to allow a jury to resolve his claim for non-economic damages. We reverse the Law Division's September 10, 2004 order granting summary judgment and remand the matter for trial.

 
Reversed and remanded.

Roy Fithen's wife, Phyllis, has asserted a lost of consortium claim. Because this claim is derivative of her husband's claim, any reference to plaintiff refers to Roy Fithen.

Automobile Insurance Cost Reduction Act (as amended effective May 19, 1998). AICRA provides policyholders with the "limitation on lawsuit" threshold which limits the accident victim's right to sue for non-economic damages unless the victim suffers a bodily injury which fits within six enumerated categories. DiProspero v. Penn, 183 N.J. 477, 480-81 (2005).

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A-0934-04T3

December 7, 2005