DOROTHY HOUSTON v. TESSA C. RAFTERY, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1648-04T3

DOROTHY HOUSTON,

Plaintiff-Appellant,

v.

TESSA C. RAFTERY, JOYCE L.

RAFTERY, TERRY L. WILLIAMS,

and NISSAN INFINITI,

Defendants-Respondents.

 

Argued October 12, 2005 - Decided April 5, 2006

Before Judges Conley, Winkelstein and Francis.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-2394-03.

David W. Burns argued the cause for appellant (Segal & Burns, attorneys; Mr. Burns, on the brief).

Donald Caruthers argued the cause for respondents Tessa C. Raftery, Joyce L. Raftery, Terry L. Williams, and Nissan Infiniti (Styliades, Jackson and DiMeo, attorneys; Teresa Gerlock Hanni, on the brief).

PER CURIAM

Plaintiff Dorothy Houston appeals a decision granting defendant Tessa C. Raftery summary judgment based on plaintiff's failure to satisfy the verbal threshold pursuant to the Automobile Insurance Cost Reduction Act of 1998 ("AICRA"), N.J.S.A. 36:6A-1.1 to -35. See N.J.S.A. 39:6A-8(a).

On September 15, 2001, plaintiff and defendant Tessa C. Raftery were involved in a motor vehicle accident wherein plaintiff was a passenger in a vehicle operated by co-defendant Terry L. Williams. At the time of the accident, plaintiff was unemployed and had been on disability since 1994 due to lower back problems.

In granting summary judgment, the motion judge stated:

[I]t's really hard to tell what the claim in this case is, whether there's any impact on that preexisting low back condition or not, but what we do know is that the medical providers have said there are bulging disks at C-4/5 and a bulge at L-5/S-1.

There is no discussion of the impact of the bulge at L-5/S-1, which is claimed to be produced by the trauma and how that impacted on the preexisting arthritic condition in the low back, nor is there any discussion of how the bulge at C-4/5 impacts on the preexisting degenerative joint disease and degenerative disk disease throughout the cervical spine....

It is not unusual for medical providers to testify in the courtroom that when they look at MRIs, they can distinguish between the preexisting degenerative process and the traumatically induced bulge or herniation and it's not usual [sic] for them to give a full, complete medical explanation of what was happening before the traumatically induced injury and what is happening after the traumatically induced injury. None of that exists in this case, which to a large extent is fatal to the plaintiff's claim.

However, another problem with the plaintiff's claim has to do with her claim of a substantial impact.

It appears from the record before us, that the motion judge found (1) plaintiff's contentions of aggravation of a pre-existing injury required a comparative analysis as set forth in Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993), and (2) plaintiff failed to demonstrate that her injuries had a serious impact on her life as required by the second prong of Oswin v. Shaw, 129 N.J. 290 (1992). The holdings in DiProspero v. Penn, 183 N.J. 477 (2005), and Serrano v. Serrano, 183 N.J. 508 (2005), eliminate the necessity of any further analysis regarding the second finding. Regarding verbal threshold summary judgment motions, we have held that the Polk analysis is no longer viable where a plaintiff has submitted the requisite physician's records attributing a permanent injury to the subject accident. Davidson v. Slater, 381 N.J. Super. 22 (App. Div. 2005), certif. granted, ___ N.J. ___ (2006).

Here, plaintiff alleges injuries beyond aggravation of her pre-existing lower back condition. The motion judge made no findings on the record as to whether the first prong of Oswin had been satisfied. We are convinced that it has. Plaintiff's physician diagnosed plaintiff with, among other things, disc bulges at C4-C5 and L5-S1, and left knee joint effusion, all of which were confirmed through MRI testing. In his certification, plaintiff's chiropractor causally linked these injuries to the subject accident and further opined that these injuries were permanent.

The record before us, in the context of a summary judgment motion, presents objective evidence of a qualifying, permanent injury sufficient to satisfy the AICRA threshold.

 
Reversed.

(continued)

(continued)

4

A-1648-04T3

April 5, 2006