MEGAN KURTZ v. THELMA DOGGETT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6527-04T16527-04T1

MEGAN KURTZ,

Plaintiff-Appellant,

v.

THELMA DOGGETT,

Defendant-Respondent,

and

PNC LEASING,

Defendant.

___________________________________________________

 

Submitted November 1, 2006 - Decided November 17, 2006

Before Judges Stern and Messano.

On appeal from the Superior Court of New

Jersey, Law Division, Civil Part,

Atlantic County, Docket No. L-877-03.

Mark J. Molz, attorney for appellant

(Stephen Cristal, on the brief).

Green, Lundgren & Ryan, attorneys for

respondent (Daniel J. DiStasi and Alexa J.

Nasta, on the brief).

PER CURIAM

Following the settlement of her claim for economic damages, plaintiff appeals from an order of March 18, 2005 granting defendant summary judgment as to plaintiff's claim for non-economic damages based on her failure to satisfy the verbal threshold under the Automobile Insurance Cost Reduction Act, N.J.S.A. 39:6A-8(a). Plaintiff also appeals from an order of July 22, 2005 denying her application for reconsideration filed after the Supreme Court's decision in DeProspero v. Penn, 183 N.J. 477 (2005). We affirm the judgment.

The briefs do not state when the economic claims were settled and the complaint was dismissed with finality. Plaintiff asserts that her case was in the "pipeline" when DeProspero was decided "since the economic damages remained." However, a Case Information Statement notes that the economic issues were settled on May 18, 2005. If judgment was entered that day, the motion for reconsideration, filed on June 27, 2005, was not timely, and the matter would not be governed by DeProspero as it would be outside the "pipeline." See R. 4:49-2; Ross v. Rupert, 384 N.J. Super. 1 (App. Div. 2006).

We will nevertheless address plaintiff's claims on the merits on the premise the motion was timely filed and the March order is before us.

Among other things, plaintiff suffered a fractured left clavicle as a result of the accident which occurred on April 5, 2001. On April 18, 2001, Dr. John C. Baker, an orthopedist, reported:

I reviewed an x-ray report of the left clavicle dated April 5, 2001. This was positive for a nondisplaced fracture of the left clavicle. I obtained new films in my office, which revealed the fracture to be in good position and alignment.

Her left clavicle had no swelling or deformity when palpated. The distal third of the left clavicle was tender. Upper extremity deep tendon reflexes were intact and motor strength was intact as well. She had a full range of motion of the cervical spine bilaterally with a negative Adson's test.

My impression is a nondisplaced fracture of the left clavicle.

I have placed Megan in a figure eight clavicle strap. I have given her a work note to excuse her for the next 2 weeks. I will see her at that time and will be glad to keep you informed if anything changes in her course of treatment.

[Emphasis added.]

In his certification of permanency, Dr. William Glenn stated:

2. Plaintiff Megan Kurtz was involved in a motor vehicle collision on April 5, 2001 in which she sustained bodily injuries. It is my opinion within a reasonable degree of medical probability that this motor vehicle collision directly caused Plaintiff to sustain a fracture of the left clavicle, and that this is a permanent injury consisting of body parts that have not healed to function normally and will not heal to function normally with further medical treatment.

3. The above findings are made within a reasonable degree of medical probability and are based on objective clinical evidence, consisting of diagnostic tests and/or medical testing that is not experimental in nature and not dependent entirely upon subjective patient response. For further details and explanation on the basis of my findings, see medical records and reports on this patient, which are incorporated herein by reference.

First, we must state our concern that plaintiff's brief unfortunately contains pages of quotations that are neither indented nor single-spaced.

In any event, plaintiff asserts that a non-displaced fracture can satisfy the "permanent injury" requirement of the verbal threshold (even though it differs from a displaced fracture, which satisfies the threshold per se). See N.J.S.A. 39:6-8(a). We agree that "AICRA permits a non-displaced fracture to vault the verbal threshold . . . if it meets the requirements of category (6)," and therefore is a "permanent injury." Kennelly-Murray v. Megill, 381 N.J. Super. 303, 313 (App. Div. 2005). Plaintiff also asserts that she "is also able to pierce the threshold through her left leg injury" because of the scar she sustained.

As to the scar, plaintiff points to no medical report concerning the scar, and there is no suggestion that the scar became further discolored or more significant following the entry of the March 18, 2005 order granting summary judgment. In dismissing the non-economic claims in his March 18, 2005 opinion, Judge William E. Nugent concluded that "[a] 3/8 inch scar below the knee, without other distinguishing characteristics, does not qualify as significant scarring under the verbal threshold." We agree with his analysis, and nothing changed with respect to that determination between the March decision at which time the judge observed the scar, and the motion for reconsideration, which was therefore appropriately denied.

While the certification of permanency does refer to the fracture of the clavicle as a "permanent injury," it merely parrots the language in the threshold statute, N.J.S.A. 39:6A-8(a), and we can find no evidence of permanency in any report. Mere recitation of the required wording of a certificate of permanency is not sufficient to sustain summary judgment. Rios v. Szivos, 354 N.J. Super. 578, 584-85 (App. Div. 2002), overruled on other grounds by DeProspero v. Penn, supra, 183 N.J. 477. Accordingly, we agree with Judge Nugent that reconsideration of the March 18 order is not warranted under DeProspero, notwithstanding the fact that the lack of "life impact" cannot be deemed a factor in denying summary judgment.

The judgment is affirmed.

 

The pictures in the appendix are unclear, and we rely on the judge's description of the scar and its location. We do not suggest that the certification of permanency had to address that category of injury.

(continued)

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A-6527-04T1

November 17, 2006