DARRELL BETHEA v. TAMIKO PINO-BETHEA, ESAU PELAES, FEDERICO PELAES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1145-04T31145-04T3

DARRELL BETHEA,

Plaintiff-Appellant,

v.

TAMIKO PINO-BETHEA, ESAU

PELAES, FEDERICO PELAES,

Defendants-Respondents.

________________________________________________________

 

Argued October 25, 2005 - Decided

Before Judges Hoens and R. B. Coleman.

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

L-8424-02.

Casey J. Woodruff argued the cause for appellant Darrell Bethea (Bramnick, Rodriguez, Mitterhoff, Grabas & Woodruff, attorneys; Mr. Woodruff on the brief).

Walter R. Bliss argued the cause for respondent Tamiko Pino-Bethea.

Eric Christopher Landman argued the cause for respondents Esau Pelaes and Federico Pelaes (Sherman & Viscomi, attorneys; Mr. Landman on the brief).

PER CURIAM

Plaintiff Darrell Bethea appeals from an order granting summary judgment and dismissing his automobile negligence complaint pursuant to N.J.S.A. 39:6A-8(a), the limitation of lawsuit threshold under the Automobile Insurance Cost Reduction Act (AICRA). The court determined that plaintiff had met the objective and subjective prongs of Oswin v. Shaw, 129 N.J. 290 (1992), but that plaintiff had failed to satisfy the comparative analysis requirement of Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993). Plaintiff asserts that Polk is not applicable because he only seeks to recover for new injuries caused by the present accident, instead of damages for aggravation or the exacerbation of pre-existing injuries. We agree and reverse.

The accident that is the subject of the present lawsuit occurred on November 17, 2001. Plaintiff was a passenger wearing his seatbelt in a car driven by his wife, defendant Tamiko Pino-Bethea. The Bethea car proceeded into an intersection controlled by a green traffic light when the car was struck by a car driven by defendant Esau Pelaes. According to plaintiff, Pelaes failed to heed the red traffic signal, causing the collision that resulted in the injuries to plaintiff that are the subject of the complaint in this action.

Plaintiff lost consciousness at the accident scene and was taken to Robert Wood Johnson Hospital in New Brunswick. At the hospital, plaintiff complained of severe pain in his back and neck. After his release from the hospital, plaintiff was treated by Dr. Allan Tiedrich for chronic neck and lower back pain. Plaintiff underwent physical therapy and his MRI revealed two herniated discs which, in the doctor's opinion, resulted from the November 17, 2001, accident. Dr. Tiedrich also opined that the injuries to plaintiff's back and neck were permanent.

Plaintiff was involved in one previous accident in 1988. In that accident, he was standing on a bus waiting for it to stop so he could exit, when the bus stopped abruptly. As a result of the abrupt stop, plaintiff was pushed by other standing passengers through the windshield. He was diagnosed with and treated for a seizure disorder and he also sustained a detached retina in both eyes. Although those injuries may have worsened due to the most recent car accident, plaintiff asserts that he is suing to recover damages only for the back and neck injuries allegedly sustained in the November 21, 2001 accident. He is not seeking damages for exacerbation of the injuries to his eyes and head. There are no reports of prior injuries to plaintiff's back or neck.

Following oral argument, the trial court granted summary judgment and dismissed plaintiff's complaint. The court found that while plaintiff did meet the objective and subjective prongs of the verbal threshold under Oswin v. Shaw, supra, 129 N.J. at 314, plaintiff failed to provide the required Polk analysis. The court found that plaintiff had not provided a comparative analysis of his frequency of seizures and post-concussion complaints prior to and after the subject accident. The court noted there was no objective evidence relating to the greater frequency of seizures plaintiff endured and plaintiff failed to provide neurological records from his first accident. In addition, plaintiff would not consent to a new MRI of his brain.

Plaintiff contends the trial court erred by granting summary judgment based on the failure to provide a Polk analysis because this is not an aggravation case. Plaintiff maintains he is not seeking damages for any exacerbation of the pre-existing injuries to his head and eyes. Instead, plaintiff asserts that he is seeking damages only for the neck and back injuries he alleges he sustained as a result of the car accident involved in this litigation.

In Polk, supra, 268 N.J. Super. at 575, this court held that in verbal threshold cases where the plaintiff is seeking damages for an injured body part that was previously injured, he or she must undertake a comparative analysis to establish that the accident in question injured the body part further. We stated:

[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. This must encompass an evaluation of the medical records of the patient prior to the trauma with the objective medical evidence existent post trauma.

[Ibid.]

Accordingly, "[w]ithout 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." Ibid.

Recently, two different parts of this court have expressed differing views of the continuing viability of Polk in light of DiProspero and Serrano. See Davidson v. Slater, 381 N.J. Super. 22, 29 (App. Div. 2005) and Lucky v. Holland, 380 N.J. Super. 566, 570 (App. Div. 2005). In Hardison v. King, ___ N.J. Super. ___ (App. Div. 2005), we took cognizance of those divergent views, but we observed:

In our view, the need for plaintiff to oppose summary judgment with comparative evidence when [plaintiff has had any prior injury or condition but] aggravation is not being claimed should not depend on any automatic application of Polk. Instead, the necessity for comparative evidence should depend upon whether the factual construct presented by the moving papers calls into question whether any reasonable jury could find that plaintiff incurred a permanent injury resulting from the subject automobile accident.

In the present matter, plaintiff has indicated he is not seeking damages for the increased frequency of seizures or damage to his eyes. Plaintiff only seeks recovery for the injuries to his neck and back which Dr. Tiedrich attributes to the subject accident. There was no evidence presented on the motion for summary judgment that plaintiff sustained any prior injuries to his back or neck. Plaintiff expressly denies ever having sustained any prior or subsequent traumas or injuries to those parts of his body. Aggravation or exacerbation of a prior injury or condition is not plaintiff's theory of the case, and the proofs at trial may be limited accordingly. Under such circumstances, Polk is not applicable.

Since the trial court already found that plaintiff met the statutory requirement for proceeding, we reverse the grant of

summary judgment and remand the matter for trial on the merits.

Reversed and remanded for further proceedings.

 

Subsequent to the filing of the appeal in this matter, the Supreme Court decided DiProspero v. Penn, 183 N.J. 477, 506 (2005) and Serrano v. Serrano, 183 N.J. 508, 517-18 (2005). The Court held in those cases that the Legislature, in enacting AICRA, adopted the Oswin interpretation of the 1988 threshold requiring a plaintiff to prove a threshold injury by objective credible evidence (the first prong), but that the Legislature did not include a serious life impact requirement (the second prong), as a condition to vaulting the lawsuit threshold. See also Juarez v. J. A. Salerno & Sons, Inc., ___ N.J. ___ (2005).

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A-1145-04T3

December 13, 2005