DAVID H. SHARP v. SOCRATES STERIOTIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3062-09T2

DAVID H. SHARP,

Plaintiff-Appellant,

v.

SOCRATES STERIOTIS,

Defendant-Respondent.

______________________________________________________

December 13, 2010

Argued November 9, 2010 - Decided

Before Judges Graves and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4297-08.

Bruce A. Wallace argued the cause for appellant (Wallace Law, attorneys; Mr. Wallace, on the brief).

Walter F. Kawalec, III argued the cause for respondent (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Kawalec, III, on the brief).

PER CURIAM

Plaintiff David H. Sharp appeals from the grant of summary judgment to defendant Socrates Steriotis. We have considered the arguments plaintiff raises in light of the record and applicable legal standards. We affirm.

At approximately 8:25 a.m. on July 7, 2006, defendant's car struck plaintiff, who was sixteen years old, as he rode his bicycle on Route 70 in Cherry Hill.1 Plaintiff was covered under an automobile insurance policy that contained the limitation on lawsuit option, N.J.S.A. 39:6A-8(a) (the LOL).

On July 17, plaintiff was seen by Dr. Gary Neil Goldstein, M.D., a plastic and orthopedic surgeon and plaintiff's primary physician. Goldstein's impression was that plaintiff suffered "[m]ultiple contusions and ecchymoses," "[i]nternal derangement of the right knee," and "[d]ental trauma."

The injuries to plaintiff's teeth were treated by a number of dentists. One tooth suffered a "slight enamel fracture," four others suffered "concussion trauma" that required "composite bonding," and one tooth was extracted and replaced with an implant. Mark Waltzer, D.M.D., detailed these injuries and treatments in his report of June 10, 2008. Waltzer noted,

Although active treatment is concluded, nothing will last indefinitely. Crowns generally have a life expectancy of 5-15 years. Composite bonding generally lasts 3-10 years. In an active young man, it is probably closer to the shorter end of the range. There is a possibility that root canal therapy, composite bonding, and/or crowns will be needed later . . . .

Plaintiff subsequently developed a "dark area at the mesio-gingival of tooth #7." Waltzer believed this was likely an "abfraction lesion," the result of "the initial trauma." He recommended that the situation be monitored.

Plaintiff continued to experience pain in his right knee and consulted Marc L. Kahn, M.D., an orthopedic surgeon. In February 2009, Kahn diagnosed plaintiff with "[i]nternal derangement [of the knee] . . . ." Kahn subsequently reviewed an MRI and concluded that plaintiff suffered no "meniscal tears or ligamentous injuries," though the film displayed "small effusion" of the joint. Kahn suggested that plaintiff "should have . . . arthroscopic surgery."

Plaintiff continued to seek opinions regarding the surgical option. Merrick J. Wetzler, M.D., another orthopedic doctor, recommended that plaintiff undergo therapy. Lawrence I. Barr, D.O., opined that despite the MRI impression, plaintiff may have suffered a posterior cruciate ligament tear, noting such a condition is "not well visualized on MRI studies." However, Paul Marchetto, M.D., the last doctor plaintiff saw regarding his knee, recommended therapy, noting in his October 12, 2009 report, that plaintiff should undergo "nonoperative treatment."

Defendant moved for summary judgment arguing that plaintiff had failed to file a certificate of permanency and that plaintiff's injuries were not permanent. N.J.S.A. 39:6A-8(a). Accompanying plaintiff's opposition to the motion was a certification from Waltzer in which he stated

[Plaintiff] has sustained permanent injury that will have permanent residual sequelae. It is my further opinion . . . that, although further treatment in the future may alleviate some symptomatology, the permanent residuals of the injury cannot be completely resolved by way of further medical treatment[,] intervention and there will always be some aspect of residual permanent injury . . . . Tooth #8 was fractured and could not be restored. An implant was used . . . . The crown will have to repeatedly be replaced during [plaintiff's] lifetime . . . .

[T]here is also damage to tooth #7 . . . . It is still possible that further structural or pulpal damages may have occurred to [this] tooth . . . .

Plaintiff served no certificate of permanency regarding the injury to his knee.

Plaintiff argued that he had met the LOL threshold in two ways: first, that he had suffered a permanent injury to his teeth; second, that he had suffered "significant disfigurement or significant scarring," specifically the discoloration of his capped tooth, the dark area on his gum, and the scars on his hands and right knee.

Plaintiff was present for oral argument of the motion and the judge viewed the scars and discolorations. He concluded they did not amount to "significant disfigurement or significant scarring." The judge also concluded plaintiff had failed to establish a "permanent injury" under N.J.S.A. 39:6A-8(a).2 He entered an order granting defendant summary judgment and dismissing plaintiff's complaint. This appeal followed.

When reviewing a grant of "summary judgment, we [employ] the same standard[s] . . . [used] by the motion judge." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.) (citations omitted), certif. denied, 189 N.J. 104 (2006). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Ibid.

[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.

[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]

Only "[i]f there exists a single, unavoidable resolution of the alleged disputed issue of fact" is "that issue . . . insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Ibid. (citation omitted).

We then consider "whether the motion judge's application of the law was correct." Atl. Mut. Ins., supra, 387 N.J. Super. at 231. In this regard, we "owe no deference" to the judge's conclusions. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Since the LOL option applied, plaintiff could only recover for "noneconomic loss" by proving that the accident caused "a bodily injury which result[ed] in . . . significant disfigurement or significant scarring; . . . or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." N.J.S.A. 39:6A-8(a). "An injury . . . [is] permanent when the body part or organ . . . has not healed to function normally and will not heal to function normally with further medical treatment." Ibid. Additionally,

[i]n order to satisfy the [LOL threshold], the plaintiff [must] . . . provide the defendant with a certification from the licensed treating physician or a board-certified licensed physician to whom the plaintiff was referred by the treating physician. The certification shall state . . . that the plaintiff has sustained an injury described above. The certification shall be based on and refer to objective clinical evidence . . . .

[Ibid.]

Plaintiff reiterates the arguments he made before the motion judge. In addition to claming that he suffered "significant disfigurement or . . . scarring," plaintiff contends that his dental injuries were "permanent" because the treatments rendered the implant and composite bonding are only temporary and will likely have to be replaced. Further, he argues that tooth #8 will never "heal[] to function normally" because it was replaced by an implant and therefore no longer exists.

In Johnson v. Scaccetti, 192 N.J. 256, 273 n.10 (2007), the Court specifically declined to consider whether "a dental injury could constitute a 'permanent injury' or 'significant disfigurement' under N.J.S.A. 39:6A-8(a)." However, the Court has held that "to satisfy the [LOL] threshold . . . in respect of either 'significant disfigurement or significant scarring,' a plaintiff bears the burden of demonstrating that, on an objective basis, the disfigurement or scarring substantially 'impair[s] or injure[s] the beauty, symmetry, or appearance of a person, rendering the bearer unsightly, misshapen or imperfect, deforming h[im] in some manner.'" Soto v. Scaringelli, 189 N.J. 558, 574 (2007) (quoting Gilhooley v. Cnty. of Union, 164 N.J. 533, 544 (2000)). "[A] number of factors are relevant, 'including appearance, coloration, existence and size of the scar, as well as, shape, characteristics of the surrounding skin, remnants of the healing process, and any other cosmetically important matters.'" Ibid. (quoting Gilhooley, supra, 164 N.J. at 544).

In this case, the motion judge actually observed plaintiff's scars and discolorations. He concluded they did not meet the standards cited above. We have been supplied with photographs of plaintiff's scars as part of the appellate record. We concur. Plaintiff failed to demonstrate that he suffered "significant disfigurement or significant scarring" sufficient to vault the LOL threshold.

We consider, therefore, whether plaintiff demonstrated a "permanent injury" to his teeth sufficient to present a disputed fact that precluded summary judgment. Defendant argues that the judge properly excluded Waltzer's late certificate of permanency from consideration. We need not address that question because we conclude that even if Waltzer's certification is considered, plaintiff failed to demonstrate a permanent injury to his teeth.3

The statutory definition of permanency under the LOL rests upon the ability of the injured body part to function normally after treatment. See N.J.S.A. 39:6A-8(a) ("An injury . . . [is] permanent when the body part or organ . . . has not healed to function normally and will not heal to function normally with further medical treatment.") (emphasis added). Teeth are "used in mastication and assisting in articulation." Johnson, supra, 192 N.J. at 272 (quotation omitted). Simply put, although Waltzer's certificate of permanency labels plaintiff's dental injuries as "permanent," and notes the likelihood of further treatment, the certification is bereft of any evidence that plaintiff's teeth no longer function properly.

Plaintiff argues that this case is like Gilhooley, supra, 164 N.J. at 542-43, where the Court reversed a grant of summary judgment under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (TCA), finding that the surgical repair of plaintiff's knee through the use of pins was sufficient to establish "permanent loss of a bodily function." N.J.S.A. 59:9-2(d). As the Court noted, "when pins, wires, mechanisms and devices are required to make the plaintiff normal, the statutory standard is met." Gilhooley, supra, 164 N.J. at 542-43. In short, plaintiff contends that his teeth were only restored to normal function through insertion of an implant.

We reject the analogy. Initially, it is clear that by enacting N.J.S.A. 39:6A-8(a), the Legislature, in its attempt to "contain[] spiraling medical costs and insurance premiums," "bar[red] a recovery for pain and suffering unless . . . plaintiff" proved injuries that fit into one of the six statutory categories. Johnson, supra, 192 N.J. at 269-70 (citations omitted). Unlike the TCA, N.J.S.A. 39:6A-8(a) specifically defines what a permanent injury is, i.e., plaintiff must demonstrate that the body part "has not healed to function normally and will not heal to function normally."

In Johnson, supra, 192 N.J. at 272, the Court noted, "of all the threshold categories in N.J.S.A. 39:6A-8(a), '[o]nly a displaced fracture could possibly qualify as a non-permanent injury, provided the fracture could heal well enough for the bone to function normally.'" (quoting DiProspero v. Penn, 183 N.J. 477, 497 (2005)) (emphasis added). We discern, therefore, that the critical consideration in determining whether an injury is permanent is whether the body part has been restored to normal function. In this case there simply was no evidence that plaintiff's teeth do not "function normally."

We recognize, of course, that tooth #8 is no longer in plaintiff's mouth, that it has been replaced by an implant, and, that it is permanently "los[t]." However, in our view, that simply cannot be the determining factor envisioned by the Legislature in its passage of N.J.S.A. 39:6A-8(a). If it were, the loss of a single tooth, in and of itself, would be sufficient to vault the LOL threshold. We do not think the Legislature intended such a result.

Affirmed.

1 The issues presented on appeal involve only plaintiff's injuries. We therefore do not discuss the liability aspects of the lawsuit.

2 The judge noted that plaintiff had failed to furnish a certificate of permanency before discovery ended. As we explain below, our review is de novo. It is not critical to our analysis that the judge apparently refused to consider Waltzer's certification.

3 Plaintiff also argues that he demonstrated a permanent injury to his knee. We find the argument unpersuasive. First, plaintiff never furnished a certificate of permanency regarding the injury to his knee. While dismissal of the claim is not mandatory under such circumstances, such a remedy is appropriate when the plaintiff "is unwilling or unable to produce a physician certification." Casinelli v. Manglapus, 181 N.J. 354, 365 (2004). Moreover, the record reveals no "objective clinical evidence" that plaintiff suffered a permanent injury to his knee. N.J.S.A. 39:6A-8(a).