IRIS B. CAJIGAS v. SHAMAR WARE, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6662-04T56662-04T5

IRIS B. CAJIGAS,

Plaintiff-Appellant,

v.

SHAMAR WARE and STEPHANIE WARE,

Defendants-Respondents.

________________________________

 

Argued on May 2, 2006 - Decided June 1, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Essex County,

L-1424-04.

John D. O'Dwyer argued the cause for

appellant (Ginarte O'Dwyer and Winograd,

attorneys; Mr. O'Dwyer on the brief).

James R. Connell argued the cause for

respondents (Dwyer Connell and Lisbona,

attorneys; Raymond R. Connell, on the

brief).

PER CURIAM

Plaintiff appeals from a July 8, 2005, order granting summary judgment to defendants, dismissing her personal injury complaint. We reverse.

Plaintiff was involved in an automobile accident on February 11, 2002. At that time, she was subject to the "limitation on lawsuit" threshold contained in N.J.S.A. 39:6A-8a. Her complaint, filed on February 24, 2004, alleged that she crossed that threshold by virtue of a permanent injury suffered in the February 11, 2002, accident. On October 13, 2003, plaintiff was involved in another automobile accident. Her claim for damages resulting from the second accident has been settled and is not the subject of this action.

After an answer was filed and discovery was exchanged, defendants moved, on May 26, 2005, for summary judgment. In response, plaintiff submitted the results of an MRI conducted June 26, 2002, showing posterior disc herniations at C5-C6 and C6-C7. She also presented the results of an electro-diagnostic test conducted on August 13, 2002, accompanied by a physician's opinion that the testing demonstrated a cervical radiculitis involving the C7 nerve root. Those tests pre-dated the second, October 13, 2003, accident.

At argument on the motion, defendant urged that

"there should have been a Polk [v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993)] analysis based upon the injuries from the first accident, the second accident, what was aggravated, what was exacerbated, what had gotten better and what have you. It wasn't done and, based upon that lack of documentation and information, the motion should be granted."

The motion judge accepted that argument. His complete ruling was:

"Although I can't remember the names of the specific cases, there is case law which does indicate that a Polk type analysis is also required when there is a subsequent accident, as well as when there is a previous one, as happened in Polk. And I have to agree that I don't really see that type of analysis done in this case. And I think it would be incumbent on the plaintiff to do so. So, I will grant the motion."

Our review of the judge's decision on the motion for summary judgment requires the application of the same standard to resolve the issue as that employed by the motion judge, Prudential Prop. & Cas. Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998), without affording any special deference to the judge's interpretation of the law. Manalapan Realty L.P. v. Twp. Committee, 140 N.J. 366, 378 (1995). Accordingly, we decide whether, viewing the evidence in the light most favorable to plaintiff, a rational fact-finder could resolve the dispute in favor of plaintiff. If so, the motion must be denied. Brill v. Guardian Life Insurance Company of America, 142 N.J. 520, 540 (1995).

To survive the motion, plaintiff was required to demonstrate that a reasonable fact-finder might conclude from objective credible medical evidence that she sustained one of the six categories of injury enumerated in N.J.S.A. 39:6A-8a. See Serrano v. Serrano, 183 N.J. 508, 509 (2005) (citing DiProspero v. Penn, 183 N.J. 477, 480-82 (2005)). Plaintiff alleged the existence of a permanent injury and the MRI demonstrating herniations satisfied her obligation to produce evidence of a permanent injury. Pardo v. Dominguez, 382 N.J. Super. 489, 492 (App. Div. 2006). The electro-diagnostic testing also confirmed the injury. Both tests were accompanied by certifications relating the injury to the accident.

Accordingly, at the time defendant's motion for judgment was filed, plaintiff had produced objective credible medical evidence that, if believed, would allow a reasonable fact-finder to conclude she had suffered a permanent injury as a result of the February 11, 2002, accident. Her showing was sufficient to defeat the motion. Brill v. Guardian Life Insurance Company of America, supra, 142 N.J. 520.

We reject the suggestion that Polk v. Daconceicao required plaintiff to compare the injuries sustained in the two accidents in order to survive the motion. Polk involved a plaintiff who sued for injuries sustained in an accident, claiming the accident had aggravated a pre-existing condition. He did not, however, provide any comparison of his condition before and after that accident. Accordingly, a rational fact-finder could not determine which of his disabilities were caused by the accident and which preceded it. We held that

[a] diagnosis of aggravation of a pre-existing injury or condition must be based upon a comparative analysis of the plaintiff's residuals prior to the accident with the injuries suffered in the automobile accident at issue. . . . Without a comparative analysis, the conclusion that the pre-accident condition has been aggravated must be deemed insufficient to overcome the threshold of N.J.S.A. 39:6A-8a.

[Polk v. Daconceicao, supra, 268 N.J. Super. at 575.]

The requirement of a comparative analysis to determine if an earlier condition has been aggravated, to the extent it remains viable after DiProspero and Serrano, simply has no applicability where there is no claim of aggravation. We have found no contrary authority and none has been suggested to us. Said another way, injuries from a second accident cannot affect the valuation, on a motion for summary judgment, of the proofs showing a permanent injury from a prior accident. Those proofs must be evaluated without regard to the later injuries. Defendant cites to Lucky v. Holland, 380 N.J. Super. 566 (App. Div. 2005) for the proposition that "the focus is not on which accident took place when, or the aggravation of injuries; rather, the focus is on the issue of which accident caused which injuries." Although we cannot find the language to which defendant refers, we accept that formulation of Polk. We fail to see, however, how a later accident can be said to have caused injuries demonstrated by tests that precede that accident.

Defendant has argued before us and, it appears, before the motion judge, that medical reports describing plaintiff's condition after the second accident suggest the reports of her condition after the first accident may have been exaggerated. For example, defendant notes that the MRI after the first accident showed "two disc herniations, one at C5-C6 and one at C6-C7." An MRI completed after the second accident found only one herniation at C5-C6 and a bulge at C6-C7. The latter test does not dispute the herniation at C5-C6 and, therefore, does not diminish plaintiff's proofs of permanent injury resulting from the first accident. Even a complete disparity, however, would do no more than create a question of the weight to be given each test; it would not require the earlier test to be discarded.

Because we believe the motion judge improperly required a comparative analysis and because we believe it clear that plaintiff satisfied her obligation under Brill, the matter must be returned for further proceedings.

Reversed and remanded.

 

The application of Polk to litigation subject to the Automobile Insurance Cost Reduction Act of 1998, N.J.S.A. 39:6A-1.1 to -32, is in question. Compare Davidson v. Slater, 381 N.J. Super. 22, 29 (App. Div. 2005) (continued vitality of Polk is "doubtful"), certif. granted, ___ N.J. ___ (2006), with Lucky v. Holland, 380 N.J. Super. 566 (App. Div. 2005) (Polk analysis remains required).

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A-6662-04T5

June 1, 2006