R. MERVIN GUSTAVE, et al. v. LUIS FLORES, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5443-04T25443-04T2

R. MERVIN GUSTAVE,

ANDROS SALTIBUS and

LEVI E. HANNIBAL,

Plaintiffs-Appellants,

v.

LUIS FLORES, TRANS HUDSON

EXPRESS, INC., and

ROCKLAND COACHES,

Defendants,

and

RAUL CRUZ and

RED & TAN LINES,

Defendants-Respondents.

 

Argued March 21, 2006 - Decided July 14, 2006

Before Judges Hoens and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2600-04.

Randi S. Greenberg argued the cause for appellants (Lawrence M. Simon, attorney, on the brief).

Edward J. Nesselquist argued the cause for respondents.

PER CURIAM

Plaintiffs R. Mervin Gustave, Andros Saltibus and Levi E. Hannibal appeal from the May 13, 2005 order of the Law Division granting summary judgment in favor of defendants Raul Cruz and Red & Tan Lines. We reverse and remand.

All three of the plaintiffs were passengers on a bus owned by defendant Red & Tan and driven by defendant Cruz on November 5, 2003, when it was involved in an accident with another vehicle. Each of the plaintiffs asserted in the complaint that he was injured in the accident and sought to recover for those injuries against the bus company and the bus driver.

Following discovery, defendants moved for summary judgment, arguing that each plaintiff's injuries were insufficient to cross the verbal threshold as it applies to bus passengers, see N.J.S.A. 17:28-1.5 to -1.7, which was enacted as part of the legislation that created the verbal threshold for automobile accident victims. See Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35.

In opposition to the motions for summary judgment, plaintiffs first argued that the statute did not apply to them at all because they did not receive PIP benefits in New Jersey as required by the statute. In rejecting this argument, the judge concluded that the purpose of the statute was met because defendants made New Jersey PIP benefits available and plaintiffs' conceded PIP coverage in New York resulted in payment of all of their medical bills.

Having first concluded that each of the plaintiffs was subject to the verbal threshold, the judge then applied the two-part Oswin test in analyzing the substance of defendants' summary judgment motions. See Oswin v. Shaw, 129 N.J. 290, 318-19 (1992); James v. Torres, 354 N.J. Super. 586, 596 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003). The judge addressed the three plaintiffs and the evidence each presented on the subject of his injuries individually. As to each, however, the judge concluded that the evidence fell short of that required by the Oswin test.

Our review requires that we set forth the objective, medical evidence relating to the claims of each of the plaintiffs separately. Plaintiff Gustave visited the emergency room two days after the accident, because he was experiencing shoulder numbness, neck and low back pain, and pain in his lower chest. He left the emergency room without being treated, however, and consulted that day instead with Dr. Gelin, a specialist in internal medicine. A cervical MRI performed on December 3, 2003, revealed that Gustave had a herniated disc at C3-C4 which was "indenting the cervical spinal cord" as well as herniated discs at C4-C5 and C5-C6 that were "indenting the thecal sac." In addition, based on Gustave's complaint about pain in his shoulder, a left shoulder MRI was performed on February 17, 2004. The report of that study included diagnoses of full thickness tears and partial tears of several of the tendons in his shoulder. Gustave also underwent EMG tests that demonstrated bilateral cervical radiculopathy and median nerve entrapment in his wrists. In addition to these reports and studies, Gustave opposed the summary judgment motion by serving the report of Dr. David Porter, who opined that Gustave's injuries were directly and causally related to the accident, and that they were permanent.

Plaintiff Andros Saltibus went to the emergency room the night of the accident. Although the record does not include any report from that visit, Saltibus was also seen two days later, on November 7, 2003, by Dr. Gelin, who initially diagnosed cervical sprains and strains along with a shoulder injury. On February 5, 2004, Saltibus underwent an MRI of his right shoulder, which detected full thickness tears and partial tears in the tendons of his shoulder. In opposition to the summary judgment motion, Saltibus also offered the expert opinion of Dr. Porter that the injuries were both significant and permanent and who also opined about Saltibus's need for future treatment.

Finally, plaintiff Levi Hannibal visited the emergency room on the day following the accident, where x-rays were taken of his neck and shoulder. He was treated and released with a prescription for pain medication and for a muscle relaxant. On November 14, 2003, Hannibal consulted with Dr. Gelin, complaining of neck and shoulder pain, coupled with complaints of "shooting pain," numbness, and tingling in his arm. On December 3, 2003, Hannibal underwent an MRI scan of his cervical spine which revealed bulging discs at C3-C4 and C6-C7, together with herniated discs at C4-C5 and C5-C6, "centrally indenting the thecal sac." In addition, on December 19, 2003, Hannibal underwent EMG testing that revealed abnormal results. Although an MRI of his shoulder was also recommended, the record does not reveal whether Hannibal ever underwent that diagnostic procedure. Hannibal also produced, in opposition to the summary judgment motion, the expert report of Dr. Porter concluding that his injuries were both permanent and significant.

On appeal, plaintiffs first urge us to reverse the judge's determination that they were subject to the verbal threshold statute. They argue that the statute only subjects them to the threshold if the bus company has provided them with PIP coverage. They reason that because they did not enjoy the benefit of PIP coverage provided by the bus company, the bus company should not be entitled to the protection otherwise afforded by the verbal threshold. We disagree.

Plaintiffs concede that all of their medical bills were in fact paid through PIP carriers in New York. They concede that the bus company complied with the requirement of the statute by "maintaining medical expense benefits coverage" for any of its passengers who sustained injuries on the bus. See N.J.S.A. 17:28-1.6a. They do not argue that, if they had no New York PIP coverage, defendant's coverage would not have been available to them. Instead, they argue that the PIP limits in New York are lower than those required by the statute in New Jersey. They urge us to interpret the statute to require that a bus company, therefore, only be allowed to claim the benefit of the verbal threshold if a passenger was actually covered by that bus company's PIP policy.

We decline to interpret the statute as these plaintiffs suggest. The statute affords the bus company the verbal threshold protection as long as it maintains PIP coverage. The statute does not establish which PIP carrier actually provides coverage for any particular claimant. Indeed, our interpretation of the applicable regulations is contrary to plaintiffs' argument. The regulation mandates that New York's PIP schedule apply to these plaintiffs in light of their election to be treated in New York. See N.J.A.C. 11:3-29.4(d)2. As we read the statute, plaintiffs are subject to the verbal threshold because the bus company maintained the required coverage and because plaintiffs received PIP benefits in New York, which were adequate in light of their injuries. We find no error in the decision of the motion judge concluding that the bus company, having complied with the statute by maintaining PIP benefits, was entitled to claim the benefit of subjecting plaintiffs to the verbal threshold.

We reach, however, a different conclusion with regard to the judge's substantive decision, in which he granted summary judgment in favor of the bus company based on the verbal threshold. As to each of the three plaintiffs, the judge's reasoning rests squarely on the second Oswin prong, that is, whether the injuries were sufficiently serious to withstand the subjective impact part of the test. In particular, as to Gustave, the judge noted the objective MRI evidence of a cervical injury, but concluded it was insufficient to support Dr. Porter's permanency opinion. Further, although the MRI of Gustave's shoulder revealed tears of tendons, the judge noted that it did not also include evidence of a rotator cuff tear. The judge reasoned that even if he were to accept Dr. Porter's opinion that Gustave's injuries were permanent, there was inadequate evidence that they were serious in terms of subjective impact. As to Saltibus, the judge concluded that there was "some" objective medical evidence of a right shoulder injury, but the evidence in the record did not demonstrate that it was serious within the meaning of Oswin. Finally, with respect to Hannibal, the judge concluded that the record demonstrated objective medical evidence of disc herniations, but that he, too, had failed to demonstrate that the injury was serious or that it had a serious impact on his life. Based on the application of the second, subjective part of the Oswin standard, as required by the James rule, the judge granted the motions as to each of the plaintiffs.

The James court's interpretation of the verbal threshold statute to require seriousness or a subjective impact has since been abrogated by our Supreme Court. See DiProspero v. Penn, 183 N.J. 477, 481-82 (2005); Serrano v. Serrano, 183 N.J. 508, 509-10 (2005). In light of the fact that these decisions apply to plaintiffs' complaint, see Juarez v. J.A. Salerno & Sons, 185 N.J. 332, 333-34 (2005); Beltran v. DeLima, 379 N.J. Super. 169, 176-77 (App. Div. 2005), and because each plaintiff has presented objective, credible medical evidence of qualifying injuries, to which the motion judge specifically referred, we reverse and remand.

Reversed and remanded for further proceedings.

 

The original complaint named Rockland Coaches d/b/a Red & Tan Lines as a defendant. The complaint also named as defendants Luis Flores, the driver of the other vehicle involved in the collision, and Trans Hudson Express, Inc., the other vehicle's owner and operator. A July 12, 2004 stipulation, filed in November 2004, voluntarily dismissed all of the claims of each of the plaintiffs against these three defendants.

(continued)

(continued)

9

A-5443-04T2

July 14, 2006