HALINA PIASCIK v. TIFFANY LEIGH MARR et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2270-04T12270-04T1

HALINA PIASCIK,

Plaintiff-Appellant,

v.

TIFFANY LEIGH MARR and

MIDATLANTIC EQUINE MEDICAL

CENTER,

Defendants-Respondents.

__________________________________

 

Argued February 6, 2006 - Decided February 27, 2006

Before Judges Lintner and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Hunterdon County, Docket No.

HNT-L-234-03.

Richard Del Vacchio argued the cause for appellant.

Colleen M. Crocker argued the cause for respondents

(Malcolm Franklin & Associates, attorneys; Ms.

Crocker, on the brief).

PER CURIAM

This is a verbal threshold case in which plaintiff, Halina Piascik, appeals from a summary judgment dismissing her personal injury, automobile negligence complaint against defendants, Tiffany Marr and Midatlantic Equine Medical Center. The judge concluded, based on the motion papers, that plaintiff's proofs did not establish either an objective permanent injury or a Polk comparative analysis deemed necessary because of a pre-existing degenerative condition. We disagree on both issues and consequently remand for trial.

Viewed most favorably for plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the motion record reveals the following. On September 6, 2002, plaintiff's vehicle was rear-ended by a Chevy Trail Blazer driven by defendant, Marr, in the course of her employment as an associate veterinarian employed by defendant, Midatlantic, owner of the vehicle. Plaintiff, a fifty-year old woman, injured her neck and lower back in the accident. She began treatment with Dr. Patrick Collalto, an orthopedist, in whose care she presently remains. A March 24, 2003 MRI of the lumbar spine revealed a L4-5 disc bulge with partial effacement of the anterior epidural fat and encroachment of the neuroforamen. While the MRI also revealed degenerative changes to plaintiff's lumbar spine, she had never injured her back before, had no previous history of problems with her spine, and was asymptomatic prior to this car accident. Based on the findings of diagnostic testing and his physical examination of plaintiff, Dr. Collalto opined that plaintiff's lower back and cervical injuries were permanent and the result of the September 6, 2002 automobile accident.

Plaintiff's treatment at first included intensive physical therapy. Because the severe back pain persisted, plaintiff underwent right L4, L5 facet injections with fluoroscopy on August 21, 2003, and January 29, 2004. While the steroid injections provided some relief to plaintiff's lower back, Dr. Collalto opined, within a reasonable degree of medical certainty, that plaintiff will require surgical intervention in the future, and quite possibly a lumbar fusion.

In granting summary judgment for defendants, the motion judge, as a threshold matter, rejected plaintiff's argument that defendants were not entitled to the "limitation on lawsuit" defense because their vehicle was not an automobile as defined by N.J.S.A. 39:6A-2. The judge reasoned:

As such, the remaining question for the Court is whether a Chevy Trailblazer - described as a Sport Utility Vehicle ("SUV") - is a "station wagon type vehicle" or is instead akin to a vehicle with a "pickup body, a delivery sedan, a van, or a panel truck."

. . . .

Here . . . Plaintiff's vehicle fits the definition of a station wagon type vehicle; it is a vehicle designed for passenger transportation "that has an interior longer than a sedan's, has one or more rear seats readily lifted out or folded to facilitate light trucking, has no separate luggage compartment, and often has an adjustable rear window and a tailgate." . . . As such, this Court has no choice but to determine that Plaintiff's vehicle was an "automobile" under the Act, and as such, the verbal threshold applies.

We agree with the motion judge's determination on this preliminary issue. See N.J. Mfrs. Ins. Co. v. Hardy, 178 N.J. 327, 334 (2004); Giordano v. Allstate Ins. Co., 260 N.J. Super. 329, 332-33 (App. Div. 1992); Wagner v. Transamerica Ins. Co., 167 N.J. Super. 25, 31-32 (App. Div.), certif. denied, 81 N.J. 60 (1979). We part company, however, with the motion judge's later determination finding no evidence of a qualifying injury and the need for a Polk comparative analysis. On this score, the judge concluded:

This Court finds that such evidence is not sufficient to vault the verbal threshold. A single bulging disc in isolation is generally not objective, credible medical evidence of a permanent injury.

Furthermore, the January 27, 2004 report of Dr. Collalto notes that Plaintiff's degenerative disc condition was likely aggravated by the subject accident.

. . . .

Plaintiff has offered no evidence to distinguish the existing degenerative damage to her spine from those injuries which she alleges were sustained in the subject accident. As such, Plaintiff cannot sustain her burden under this motion.

We do not share the motion judge's appraisal of the facts or relevant law.

The Automobile Insurance Cost Reduction Act (AICRA),

L. 1998, c. 21, 11, which was effective for all automobile insurance policies issued on or after March 22, 1999, amended the verbal threshold lawsuit limitations contained in N.J.S.A. 39:6A-8a to permit claims for non-economic loss for soft-tissue injuries only when the injured party "has sustained a bodily injury which results in . . . a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." Ibid. Moreover, "[a]n injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment." Ibid. Thus, to overcome the "limitation on lawsuit" threshold, plaintiff must submit "objective credible [medical] evidence" of "a permanent injury." Serrano v. Serrano, 183 N.J. 508, 514, 519 (2005). Plaintiff need not show that the injury was serious, id. at 518; or had caused "a serious life impact." DiProspero v. Penn, 183 N.J. 477, 506 (2005).

We are satisfied that the objective medical evidence here, including the MRI test and the physician's physical examinations and resulting findings, raise a genuine issue of material fact as to whether the September 6, 2002 automobile accident caused injuries to plaintiff's lower back and neck which have "not healed to function normally and will not heal to function normally." N.J.S.A. 39:6A-8a. See also Foti v. Johnson, 269 N.J. Super. 198, 201-02 (App. Div. 1993) ("demonstrable aggravation of a demonstrated pre-existing condition meets the Oswin [v. Shaw] requirement[s] . . . from which a plaintiff suffers[]"); Cineas v. Mammone, 270 N.J. Super. 200, 211 (App. Div. 1994); Dabal v. Sodora, 260 N.J. Super. 397, 401 (App. Div. 1992).

As for the distinctness of plaintiff's recent injuries, Polk's requirement of a comparative analysis has no continuing viability in the context of a verbal threshold summary judgment motion. See Davidson v. Slater, 381 N.J. Super. 22, 29 (App. Div. 2005) ("The comparative analysis requirement of Polk and its progeny engrafts an additional element upon [the] causation aspect of the verbal threshold standard."), certif. granted, ___ N.J. ___ (Jan. 19, 2006); Hardison v. King, 381 N.J. Super. 129, 133 (App. Div. 2005) ("The elimination of Oswin's second prong undercut most, if not all, of Polk's justification, to connect causally a plaintiff's complaints of serious impact to the subject accident rather than to prior accidents or conditions."). But see Lucky v. Holland, 380 N.J. Super. 566 (App. Div. 2005) (stating that plaintiff must "provide an adequate Polk analysis with respect to her . . . injury"). In any event, we are further satisfied that no such analysis was required in this case. According to the undisputed medical evidence, whatever the mature and extent of her pre-existing condition, plaintiff's physical condition had been functionally quiescent until this accident. She has had no episodes of pain or other problems until then. Under these circumstances, no comparative analysis was necessary as plaintiff's proofs, without more, meet "the desideratum of an objectively-based medical opinion that the disability is fairly attributable to the injury suffered in the accident" at issue, sufficient at least to withstand defendants' motion for summary judgment. Foti, supra, 269 N.J. Super. at 203. Of course, causation then becomes a question of fact for the jury to decide.

Reversed and remanded for trial.

 

Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993).

(continued)

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A-2270-04T1

February 27, 2006