GARAN DAVIS v. LISA MARIANI et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6510-04T26510-04T2

GARAN DAVIS,

Plaintiff-Appellant,

v.

LISA MARIANI and NICOLE DEANNUNTIS,

Defendants-Respondents.

_______________________________________________________________

 

Submitted March 27, 2006 - Decided April 28, 2006

Before Judges Lintner and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2247-04.

Petrillo & Goldberg attorneys for appellant (Jeffrey M. Thiel, on the brief).

Styliades, Jackson & Dimeo attorneys for respondents (Bertrand C. Harry, on the brief).

PER CURIAM

This is a verbal threshold appeal. Plaintiff, Garan Davis, appeals the Law Division's July 22, 2005 order granting summary judgment on behalf of defendants, Lisa Mariani and Nicole Deannuntis. The court, in its July 22, 2005 oral opinion, determined that plaintiff failed to prove that the tear of the ulna collateral ligament of his right thumb constituted a permanent injury, proximately caused by his automobile accident with defendant on October 5, 2003, as described in the limitation on lawsuit threshold contained in N.J.S.A. 39:6A-8a. We reverse and remand for trial.

The accident occurred at approximately 3:00 a.m. on October 5, 2003, near the intersection of Admiral Wilson Boulevard and Memorial Street in Camden, when defendant crossed over a concrete median on Admiral Wilson Boulevard and collided with the vehicle in which plaintiff was a passenger. Plaintiff contends that at the moment of impact his hand jammed against the dashboard of the vehicle injuring his right hand and wrist.

Plaintiff first treated with his family physician, Dr. Robert Dalsey, on October 17, 2003. On October 22, 2003, an MRI of plaintiff's right hand and wrist showed a "prominent strain/partial tear of the medial collateral ligament 1st metacarpophalangeal joint space." After reviewing the MRI, Dr. Dalsey casted plaintiff's hand and wrist.

Plaintiff then began treatment with Dr. Mark J. Ranier, an orthopedic surgeon, on December 18, 2003, who diagnosed plaintiff's injury as a tear of the ulna collateral ligament of the right thumb. In addition to immobilization, plaintiff's treatment consisted of physical therapy and a home exercise program.

In Dr. Ranier's December 2, 2004 report, fourteen months post-accident, Dr. Ranier determined on clinical examination that plaintiff had tenderness and soreness about the metacarpal phalangeal joint, swelling along the ulna border and stiffness and tenderness on palpation. The doctor opined that the torn ulna collateral ligament was a significant injury for which plaintiff will have permanent residuals. Dr. Ranier also supplied a physician's certification dated April 6, 2004, certifying to the permanency of plaintiff's injury, based on clinical objective findings and objective medical tests, as required by N.J.S.A. 39:6A-8a.

The motion judge relied upon Dr. Dalsey's October 24, 2003 treatment note in granting summary judgment. In the treatment note, Dr. Dalsey wrote that he believed the partial tear "should heal well, with conservative treatment."

A moving party is entitled to summary judgment if there is no genuine issue as to any material fact in the record. R. 4:46-2. In deciding a summary judgment motion, we apply the standard articulated by the Supreme Court in Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995):

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

Therefore, we must assume plaintiff's version of the facts as true and give plaintiff the benefit of all favorable inferences. Id. at 536.

We reverse and remand to the trial court in light of the Supreme Court's opinions in DiProspero v. Penn, 183 N.J. 477 (2005), Serrano v. Serrano, 183 N.J. 508 (2005), and Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332 (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. Serrano, supra, 183 N.J. at 510, 519.

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 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 evidence by the MRI finding of a partial tear of the ulna collateral ligament of his right thumb, and clinical findings on physical examination, fourteen months post-accident, of continued swelling along the ulna border of the metacarpal phalangeal joint. Additionally, Dr. Ranier has supplied a physician's certification that plaintiff's injury is permanent.

 
Accordingly, we are satisfied that plaintiff has submitted the requisite evidence to satisfy the limitation on lawsuit threshold sufficient to allow a jury to resolve his claim for non-economic damages. We reverse the Law Division's July 22, 2005 order granting summary judgment and remand the matter for trial.

Reversed and remanded.

Defendant, Mariani was the driver of the vehicle. The vehicle was owned by defendant, Deannuntis.

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A-6510-04T2

April 28, 2006