KELLY A. SCOTT v. JESSICA SEILHEIMER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3826-04T33826-04T3

KELLY A. SCOTT,

Plaintiff-Appellant,

v.

JESSICA SEILHEIMER,

Defendant-Respondent.

_______________________________________

 

Argued March 7, 2006 - Decided March 29, 2006

Before Judges Payne and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2494-03.

Stephen M. Bacigalupo, II, argued the cause for appellant (Manning, Caliendo & Thompson, attorneys; Vincent P. Manning, of counsel and on the brief).

Anne M. Rendall argued the cause for respondent (Sherman & Viscomi, attorneys; Patricia R. Lyons, of counsel and on the brief).

PER CURIAM

Plaintiff Kelly A. Scott, a motorist subject to the limitation on lawsuit option under the Automobile Insurance Cost Reduction Act of 1998 ("AICRA"), N.J.S.A. 39:6A-8, appeals a Law Division order granting summary judgment and dismissing her personal injury claims under the AICRA verbal threshold. We reverse.

On September 4, 2002 plaintiff, then age thirty-one, was stopped at a red light when her vehicle was struck in the rear by a sedan operated by defendant Jessica Seilheimer. Plaintiff went to her primary care physician later that day complaining of pain in her neck and back. Later that month, plaintiff began treatment for cervical and lumbar injuries. Over the next fifteen months, plaintiff was intermittently seen by an orthopedic surgeon, a physical therapist and a chiropractor. She underwent three epidural steroid injections to relieve her continuing pain. Eventually the lumbar injuries subsided, but the cervical problems persisted.

Plaintiff filed suit on June 10, 2003, and served upon defendant the requisite certification of permanency from James Herzog, D.C., her treating chiropractor. After discovery concluded, defendant moved for partial summary judgment dismissing plaintiff's non-economic claims for failure to vault the AICRA threshold. The trial court granted the motion on August 11, 2004, principally because it found that plaintiff's injuries from this accident had not caused a serious impact upon her daily life activities. Plaintiff's remaining claims for economic loss were dismissed through a separate order entered on February 18, 2005. This appeal ensued.

Initially, we address defendant's argument that plaintiff's appeal is filed out of time. Defendant mistakenly treats August 11, 2004 as the trigger date for the forty-five days in which to file an appeal under R. 2:4-1. However, the August 11, 2004 order granting partial summary judgment did not dispose of all issues in the case. Final judgment was not granted to defendant until plaintiff's remaining claims were dismissed on February 18, 2005. Plaintiff's notice of appeal was filed on April 6, 2005, forty-seven days after the entry of final judgment. Although the appeal was filed two days late, we relax the strict enforcement of R. 2:4-1 in the interests of justice pursuant to R. 2:4-4(a) and R. 1:1-2, nunc pro tunc, as we discern no significant prejudice to defendant in doing so.

Substantively, having considered the record as a whole and the oral arguments of counsel, we conclude that the motion judge's dismissal of plaintiff's non-economic claims must be vacated, and the case remanded for trial. We reach that conclusion primarily because of the intervening holdings of the Supreme Court in DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005), eliminating the so-called "serious lifestyle impact" prong of the AICRA verbal threshold. The motion judge's observations about the apparent minimal impact that plaintiff's injuries had upon her work attendance and her recreational activities do not justify dismissal of her AICRA claims under current decisional law. Defense counsel may, of course, raise those points to the jury in arguing about the nature and extent of plaintiff's damages.

We are also satisfied that the record amply raises triable issues of permanency and causation. Cervical MRIs from December 2002 showed posterior disc protrusions at C3-4, C4-5, C5-6 and C6-7. Plaintiff's orthopedic expert, Michael Walsh, M.D., causally related these objective abnormalities to the subject accident. Dr. Walsh also opined, as did plaintiff's chiropractor Dr. Herzog, that these injuries were permanent. The repeated epidural injections administered to plaintiff were further suggestive of ongoing injury, pain and suffering.

We recognize that the multiple disc protrusions shown on plaintiff's MRI studies were described by the reporting radiologist as "mild," that there is no EMG study reflecting a cervical radiculopathy, and that plaintiff did not continue to treat since March 2004, but those factors simply underscore the competing factual contentions that the jury will need to resolve in assessing any damages.

The motion judge also based his summary judgment ruling upon a failure by plaintiff to supply an adequate comparative analysis from a physician, pursuant to Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993), segregating plaintiff's injuries in the subject accident from the effects of two prior accidents in 1999 and in 2002. However, in rendering his oral decision five days after the verbal threshold motion was argued, the trial judge overlooked that defense counsel had conceded at argument that compliance with Polk was not an issue in this case, apparently in light of plaintiff's contention that the effects of her two previous accidents had fully resolved before she was rear-ended by this defendant. Accordingly, that aspect of the motion judge's summary judgment ruling must be vacated as well.

Finally, we do not reach defendant's argument, advanced for the first time at oral argument on this appeal, contending that plaintiff's lawsuit must be dismissed because Dr. Herzog's certificate of permanency insufficiently described plaintiff's injuries stemming from this accident. We do not consider it appropriate to address such an issue that was neither raised below nor in defendant's appellate brief. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We also note, as defense counsel acknowledged at oral argument before us, that no published case to date has insisted upon the degree of specificity which defendant is demanding here from the doctor's certificate.

Summary judgment is vacated and the case is remanded for trial.

 

The continued applicability of the Polk doctrine to AICRA cases is an issue pending before the Supreme Court. See Davidson v. Slater, 381 N.J. Super. 22 (App. Div. 2005), certif. granted, __ N.J. __, (N.J. January 19, 2006)(holding Polk inapplicable to AICRA cases); but see Lucky v. Holland, 380 N.J. Super. 566 (App. Div. 2005)(contra). See also Hardison v. King, 381 N.J. Super. 129 (App. Div. 2005).

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A-3826-04T3

March 29, 2006