TUSHAR V. PATEL v. APRIL SIMS, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6525-04T26525-04T2

TUSHAR V. PATEL,

Plaintiff-Appellant,

v.

APRIL SIMS and GEORGE H. SIMS, JR.,

Defendants-Respondents,

and

JOHN D. HUTTENBERGER, JOHN C.

HUTTENBERGER, MARY E. CERVENAK,

and HANN AUTO TRUST,

Defendants.

_____________________________________

 
Telephonically Argued July 17, 2006 - Decided August 21, 2006

Before Judges Parker and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,

L-8368-02.

Phillip B. Linder argued the cause for appellant (Baer, Arbeiter, Ploshnick, Tanenbaum & Weiss, attorneys; Mr. Linder, on the brief).

Ronald S. Yuro argued the cause for respondents (Connell, Connell & Camassa, attorneys; John A. Camassa, of counsel; Colleen L. Brandt, on the brief).

PER CURIAM

Plaintiff Tushar V. Patel appeals the July 22, 2005, order entering judgment after a jury verdict in favor of defendants April and George Sims. We affirm.

Plaintiff's complaint arose out of a September 20, 2000, motor vehicle accident, in which a vehicle, operated by April Sims and owned by George Sims, struck plaintiff's vehicle while he was stopped at a red light. Plaintiff refused medical attention, did not go to the hospital, and did not notify the police officers of his pain. He was taken to his residence by a friend. That evening, plaintiff felt pain on his left side. The next day, he asked to be taken to the emergency room, where x-rays were taken. Plaintiff was diagnosed with neck, dorsal, and lumbar strain and was instructed to follow up with his doctor.

Plaintiff next sought treatment two months later with Dr. Rebecca Vekhmis. Dr. Vekhmis recommended that plaintiff undergo a four-week course of physical therapy. She also ordered an MRI of plaintiff's cervical spine. Thereafter, plaintiff received physical therapy "two and three times a week" for the next two months, for a total of eight treatments, without improvement in his condition.

On September 11, 2002, plaintiff filed a complaint against defendants alleging negligence. Following the completion of discovery, defendants moved for summary judgment dismissing the complaint. In support of the motion, defendant argued that plaintiff, pursuant to N.J.S.A. 17:28-1.4, otherwise known as the "deemer" statute, failed to pierce the threshold requirements of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. Under the "deemer" statute, an out-of-state driver insured by an insurer doing business in New Jersey is subject to AICRA and must therefore vault the statute's threshold before recovering for non-economic injuries arising out of a motor vehicle accident in New Jersey. Whitaker v. DeVilla, 147 N.J. 341, 357-358 (1997).

In opposing summary judgment, plaintiff did not address whether he was subject to AICRA under the "deemer" statute. Rather, plaintiff argued that summary judgment should be denied because there were genuinely disputed issues of fact as to whether plaintiff had satisfied the subjective prong of AICRA. The motion judge found it was undisputed that plaintiff was subject to AICRA but otherwise denied the summary judgment motion. The judge concluded there were genuinely disputed issues of fact as to whether plaintiff's injuries pierced the verbal threshold.

At trial, both sides produced expert witnesses who testified relative to plaintiff's injuries. Plaintiff's expert, Dr. Vekhmis, testified that she diagnosed plaintiff with cervical radiculopathy, a cervical herniated disk, and cervical and thoracic strain or sprain. She based her findings on objective testing, plaintiff's complaints, and history. Dr. Vekhmis testified that plaintiff's injuries were the type suffered in an automobile accident and her opinion, within a reasonable degree of medical probability, was that plaintiff's injuries were caused by the September 20, 2000 accident.

Defendant's expert, Dr. Douglas Noble, testified the MRI image showed degenerative disk disease not caused by trauma and that the accident did not cause plaintiff's injuries. He explained that the condition of the spine was "more likely to be of a certain age factor." He also indicated that it was impossible to tell the exact date of the onset of the degenerative condition.

At the conclusion of the testimonial stage of the trial, plaintiff made several motions, including that: (1) defendant failed to prove the affirmative defense that plaintiff was subject to AICRA; (2) the evidence supported a jury instruction on aggravation of a pre-existing condition; and (3) a directed verdict in favor of plaintiff was warranted because plaintiff had satisfied the verbal threshold. The trial judge agreed to instruct the jury on aggravation of a pre-existing condition but denied the remaining motions. Plaintiff also objected to the trial judge's proposed verdict sheet.

The jury verdict sheet proposed by plaintiff was as follows:

1. Did plaintiff prove that any of his permanent injuries were caused by the accident?

_____ Yes _____ No Vote________

If your answer to Question #1 is Yes, go to Question #4. If your answer is No, go to Question #2.

2. Did defendant prove that all of the plaintiff's permanent injuries or conditions pre-existed the date of the accident?

_____ Yes _____ No [Vote]_______

If your answer to Question #2 is No, go to [Q]uestion #4. If your answer to [Q]uestion #2 is Yes, go to [Q]uestion #3.

3. Did defendant prove that the plaintiff had symptoms prior to the accident for the pre-existing injuries?

If your answer is No, go to Quest[ion] #4. If your answer is Yes, stop deliberating.

4. What amount of money will fairly and reasonably compensate the plaintiff?

The verdict sheet actually given to the jury stated:

1. DO YOU FIND THAT ANY OF THE INJURIES ALLEGED BY THE PLAINTIFF WERE PROXIMATELY CAUSED BY THE ACCIDENT THAT OCCURRED ON SEPTEMBER 20, 2000 AND ARE PERMANENT[?]

YES _____ NO _____ VOTE _______

If the answer to question No. 1 is "NO", then cease your deliberations and return your verdict to the Court. If your answer to question No. 1 is "YES", then proceed to question No. 2.

2. WE FIND THAT THE AMOUNT TO FAIRLY AND REASONABLY COMPENSATE THE PLAINTIFF FOR HIS INJURIES IS

$________ VOTE ________

The jury answered question number one "No" and returned a verdict of no-cause in favor of defendant. Subsequent to the verdict, plaintiff filed a motion for judgment notwithstanding the verdict (JNOV), which the trial court denied.

On appeal, plaintiff contends:

POINT I

TRIAL JUDGE ERRED BY NOT GRANTING PLAINTIFF['S] MOTION FOR AN ORDER DECLARING THAT THE DEFENDANT FAILED [TO] PROVE THE AFFIRMATIVE DEFENSE OF THE VERBAL THRESHOLD.

POINT II

THE TRIAL JUDGE ERRED BY NOT GRANTING PLAINTIFF['S] MOTION FOR A DIRECTED VERDICT THAT THE PLAINTIFF HAD SATISFIED THE VERBAL THRESHOLD AS A MATTER OF LAW.

POINT III

THE TRIAL COURT ERRED IN ITS REFUSAL TO SUBMIT PLAINTIFF['S] PROPOSED VERDICT FORM TO THE JURY.

POINT IV

THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE, AND THEREFORE, WAS A MISCARRIAGE OF JUSTICE UNDER THE LAW.

After carefully reviewing the record in light of the written and oral arguments advanced by the parties, we conclude that the issues presented by plaintiff are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A), (B) and (E). We add only that, if the jury accepted the testimony of the medical expert presented by the defendant, there was sufficient evidence to support the verdict. State v. Black, 380 N.J. Super. 581, 591 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006). Consequently, the trial judge also properly denied the motion for a JNOV. Sun Source, Inc. v. Kuczkir, 260 N.J. Super. 256, 268-69 (App. Div. 1992), certif. denied, 133 N.J. 439 (1993).

 

Affirmed.

Plaintiff's brief indicates defendant George Sims was dismissed from the case, but the order of dismissal is not part of the record on appeal.

In 2005, the Supreme Court held that "the Legislature did not intend to engraft the Oswin[v. Shaw, 129 N.J. 290 (1992),] language onto the limitation on lawsuit threshold." DiProspero v. Penn, 183 N.J. 477, 481 (2005). Thus, "an automobile accident victim who is subject to the threshold and sues for noneconomic damages has to satisfy only one of AICRA's six threshold categories and does not have the additional requirement of proving a serious life impact." Id. at 481-82.

(continued)

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A-6525-04T2

 

August 21, 2006