MARC BELLVUE v. NEW JERSEY TRANSIT BUS OPERATIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1868-08T21868-08T2

MARC BELLVUE, MARIE BELLVUE,

Plaintiffs-Appellants,

v.

NEW JERSEY TRANSIT BUS OPERATIONS,

a corporation or business organization,

NJ TRANSIT CORP., a corporation or

business organization, ANDREW D.

GRAVES, JR.,

Defendants-Respondents,

and

LIBERTY MUTUAL INSURANCE

COMPANY, a corporation or business

organization,

Defendants.

________________________________________________________________

 

Submitted October 5, 2009 - Decided

Before Judges Lisa and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1851-07.

Freeman & Bass, P.A., attorneys for appellants (Randall Bass, on the brief).

Anne Milgram, Attorney General, attorney for respondents New Jersey Transit Bus Operations, NJ Transit Corp. and Andrew D. Graves, Jr. (Melissa H. Raksa, Assistant Attorney General, of counsel; Karen L. Jordan, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff, Marc Bellvue, appeals from a summary judgment dismissing his personal injury claim against New Jersey Transit Bus Operations (NJT) and its bus driver, Andrew D. Graves, Jr. The dismissal was based upon plaintiff's failure to satisfy the threshold for recovery contained in the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Plaintiff argues that the judicial interpretation of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, should be applied in interpreting the TCA tort recovery threshold, which would have the effect of reducing the requirements of that threshold. Plaintiff contends that he might have satisfied such a reduced threshold and been able to withstand summary judgment. We reject plaintiff's argument and affirm.

On August 1, 2005, plaintiff was driving his car in East Orange, when he was struck in the rear by an NJT bus operated by Graves. Plaintiff did not seek immediate medical attention, but contended that his neck began to hurt the next day. He presented at a local emergency room on August 8, 2005, where he was diagnosed with lower back pain and sprain and released with advice to take Ibuprofen and Flexeril.

On September 27, 2005, plaintiff was examined by Dr. Steven M. Lomazow, a neurologist, who concluded that plaintiff was "suffering from myofascial cervical and lumbar dysfunction, probably superimposed upon a low-grade diabetic neuropathy in his legs." Dr. Lomazow expressed no opinion as to whether plaintiff's condition was permanent, caused a loss of function that was substantial, or was related to the accident.

On March 13, 2006, plaintiff underwent MRI studies, which revealed bulging discs at C3-4, C4-5, C5-6, and L4-5. Straightening of the normal lordotic curvature of the cervical spine was also noted.

Plaintiff was examined on May 10, 2006 by Dr. Brinda Kantha, of the New Jersey Institute for Minimally Invasive Spine Care. She found that plaintiff had sustained a cervical and lumbar sprain, cervical radiculopathy, the disc bulges that were identified in the MRI studies, and lower back pain. She recommended a series of two lumbar epidural steroid injections. According to plaintiff's deposition testimony he received one or two "shot[s]" from Dr. Kantha, which were presumably the recommended lumbar injections. Dr. Kantha did not express an opinion as to whether plaintiff's condition was permanent, caused a loss of function that was substantial, or was related to the accident.

On August 2, 2007, Dr. Robert T. Latimer, a psychiatrist, evaluated plaintiff. He concluded that plaintiff was depressed and anxious because of pain from the accident, was having difficulty sleeping, and was limited in his function as a result of the pain.

On August 3, 2007, Dr. I. Ahmad, an orthopedist, examined plaintiff and diagnosed him with cephalalgia (headache), spinal sprain, bulging discs, and stenosis. He opined that plaintiff had suffered "significant injuries" from the accident, would have "difficulty in performing activities of everyday life," and would probably "need further medical and surgical treatments in the future."

From August 16, 2005 to March 29, 2006, plaintiff underwent a course of physical therapy at Newark Rehabilitation Center. This included range of motion exercises and therapeutic modalities to the involved areas. It appears that Dr. Kantha administered lumbar epidural steroid injections in May 2006. It does not appear that plaintiff received any further medical treatment since then.

Plaintiff was fifty-seven years old at the time of the accident. He had been employed by Ford Motor Company since 1972. He missed only two days work as a result of the accident. At the time of his deposition on January 9, 2008, plaintiff continued to be employed by Ford Motor Company. However, due to plant closings, he had been placed by the company at the VA home in Paramus, where he was working in security and with the veterans.

Plaintiff had prior problems with his back and right shoulder stemming from a work-related injury in the early 1990s. As a result of that injury, he underwent surgery on his right shoulder. He also had been a diabetic for several years, and was taking Dipyrine for the condition.

At his deposition, plaintiff contended he was still suffering from pain due to injuries from the accident. He described his neck pain as the primary problem. He rated the pain at five on a scale of one to ten, and stated it was worse at night, when it caused him to have trouble sleeping comfortably. When asked about any restrictions on his ordinary activities, plaintiff stated that he has experienced pain when he attempts to engage in such activities as shoveling snow and carrying heavy objects, as a result of which he refrains from those activities. When asked whether there was "[a]nything else," he responded, "[t]hat's it." He testified at his deposition that he took over-the-counter Advil for pain on an as-needed basis.

Defendants moved for summary judgment. After thoroughly analyzing the medical evidence and relevant portions of defendant's deposition testimony, Judge Rosenberg concluded that the TCA provided the applicable threshold recovery standard and that, applying the Brill standard, plaintiff did not provide sufficient evidence from which a rational factfinder could find that he satisfied that threshold. The judge noted that the bulging discs were consistent with the typical aging process for an individual of plaintiff's age. No doctor specifically stated that the bulging discs were caused by the accident. The judge further concluded that the limitations on plaintiff's ordinary activities did not meet the "permanent loss of bodily function" standard set forth in N.J.S.A. 59:9-2d, as that standard has been judicially interpreted.

In reviewing the trial court's grant of summary judgment, we review the matter de novo and apply the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

The TCA defines the contours of sovereign immunity in New Jersey, and prescribes "the nature, extent and scope of state and local tort liability and the procedural requisites for prosecuting tort claims against governmental agencies." Wright v. State, 169 N.J. 422, 435 (2001) (internal quotations omitted). In the TCA, the Legislature expressed the balance of interests between injured parties and governmental entities. N.J.S.A. 59:1-2. It declared that the public policy of this State would require public entities to be liable for their negligence only "within the limitations of this act and in accordance with the fair and uniform principles established herein." Ibid. The TCA provision applicable in this case, which establishes a threshold for recovery of damages for pain and suffering, provides in applicable part that such recovery may only be had "in cases of permanent loss of a bodily function." N.J.S.A. 59:9-2d. With this limitation, the Legislature gave statutory expression to "the policy judgment that in view of the economic burdens presently facing public entities a claimant should not be reimbursed for non-objective types of damages, such as pain and suffering, except in aggravated circumstances." Report of the Attorney General's Task Force on Sovereign Immunity, (1972).

Our Supreme Court has construed N.J.S.A. 59:9-2d and established a two-prong test to determine whether there has been a "permanent loss of a bodily function." Brooks v. Odom, 150 N.J. 395, 402-03, 406 (1997). To satisfy the standard, a claimant must demonstrate "by objective medical evidence that the injury is permanent," and must show "a permanent loss of the use of a bodily function that is substantial." Ibid.

With respect to the first requirement, temporary injuries, no matter how painful and debilitating, are not recoverable, and a plaintiff may not recover for mere subjective feelings of discomfort. Id. at 403. In the absence of an objective injury, an "'impairment of plaintiff's health and ability to participate in activities' merely iterates a claim for pain and suffering." Ibid. (quoting Harry A. Margolis & Robert Novack, Claims Against Public Entities 159 (1996)).

Regarding the second requirement, the Court reasoned that the Legislature did not intend to limit recovery to total losses of bodily function, but, if the loss was not total, it had to be "substantial." Id. at 406. Applying that requirement to the case before it, the Court concluded that, accepting that the plaintiff experienced pain and that the limitation of motion in her neck and back was permanent, she was still able to function in her employment and as a homemaker, as a result of which she did not satisfy the "permanent loss of a bodily function" standard within the meaning of N.J.S.A. 59:9-2d. Ibid.

Applying these principles, we have no hesitancy in concluding that plaintiff's injuries cannot meet the TCA threshold for recovery of noneconomic damages. Assuming for purposes of our analysis that plaintiff suffered permanent injury as a result of this accident, any resulting loss of bodily function falls far short of being substantial.

Apparently recognizing the insufficiency of evidence to meet the TCA threshold, plaintiff presents another argument. He contends that instead of the TCA threshold, the less stringent AICRA threshold standard should apply. He bases this argument on alternative premises: (1) that the TCA should not apply to NJT, or (2) that the TCA threshold should be lowered to coincide with recent case law removing requirements under AICRA that had previously been judicially imposed under the No Fault law. These arguments are unavailing.

The first requires little discussion. The Supreme Court has unequivocally "declare[d] that NJT is a public entity within the ambit of the TCA." Muhammad v. N.J. Transit, 176 N.J. 185, 194 (2003).

We find equally unpersuasive plaintiff's argument regarding the No Fault law. No fault insurance was developed by the Legislature "to control the rising cost of automobile insurance by placing restrictions on an accident victim's right to sue for noneconomic damages." DiProspero v. Penn, 183 N.J. 477, 485 (2005). In 1972, the "New Jersey Automobile Reparation Reform Act," N.J.S.A. 39:6A-1, known as the "No Fault Act," was passed by the Legislature. Caviglia v. Royal Tours of Am., 178 N.J. 460, 466 (2004). The original version of this statute "precluded an . . . insured motorist or passenger from suing a[] . . . tortfeasor for economic or noneconomic damages," unless he or she sustained permanent injuries or incurred treatment costs exceeding $200, which came to be known as "the monetary threshold." Id. at 467.

In 1988, the Legislature amended N.J.S.A. 39:6A-8a, replacing the monetary threshold in favor of a template which gave automobile insurance policyholders a choice between two different options. DiProspero, supra, 183 N.J. at 486. Policyholders were given the option of either paying higher premiums in exchange for an unrestricted right to recover noneconomic damages or paying lower premiums but being subject to a limited right to recovery of such damages. Ibid. The second option, which came to be known as the "verbal threshold," provided a list of nine categories of injuries which would qualify an insured victim to sue for noneconomic damages. Oswin v. Shaw, 129 N.J. 290, 297 (1992). In order to qualify for such damages, a victim would have to show that he or she sustained an injury that fit into one of the following categories:

[1] death; [2] dismemberment; [3] significant disfigurement; [4] a fracture; [5] loss of a fetus; [6] permanent loss of use of a body organ, member, function or system; [7] permanent consequential limitation of use of a body organ or member; [8] significant limitation of use of a body function or system; or [9] a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute that person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.

[Id. at 315.]

To satisfy the verbal threshold, a plaintiff was required to establish not only a qualifying injury under the statute, but an additional requirement not specified in the statute but imposed by the Court, that the injury had a "serious impact" on his or her life. Id. at 318.

In reaching its decision in Brooks, the Court found that reliance on cases interpreting the No Fault Act was inappropriate in analyzing the TCA, because although "[i]n some respects the threshold issue in actions against public entities is similar to the verbal-threshold issue in no-fault cases[,] . . . [t]he substantive standards in the two statutes . . . differ." Brooks, supra, 150 N.J. at 403-04. The Court concluded that under the No Fault Act a claimant could recover for "a permanent injury that merely imposes a limitation on the use" of a "body organ, member, function or system." Id. at 405-06. This was contrasted with the TCA threshold, which "the Legislature did not modify . . . by stating that a mere limitation on a bodily function would suffice." Id. at 406. The Court therefore held that the TCA additionally required that a permanent loss of the use of a bodily function be substantial, thus elevating the threshold of the TCA above that of the No Fault Act. Ibid.

In response to the further increase in the cost of insurance premiums resulting from substantial increases in the cost of medical expense benefits, the Legislature passed AICRA in 1998. Among the many changes included as part of AICRA was the establishment of a new limitation of lawsuit threshold, brought about by a reconfiguration of the verbal threshold's nine categories into a set of six. N.J.S.A. 39:6A-8a. Under AICRA, a plaintiff can only recover noneconomic damages for an injury that fits into one of the following categories: "[1] death; [2] dismemberment; [3] significant disfigurement or significant scarring; [4] displaced fractures; [5] loss of a fetus; [6] a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." Ibid.

In DiProspero, the Court considered whether Oswin's "serious impact" requirement applied to AICRA's new threshold categories. DiProspero, supra, 183 N.J. at 496-506. The Court rejected the defendant's argument that the Legislative findings and declarations contained in N.J.S.A. 39:6A-1.1b supported the inclusion of the "serious impact" requirement, and found that the Legislature intended to create a "completely new threshold." DiProspero, supra, 183 N.J. at 496-98, 500. The Court noted that the plain language of the amendment "place[d] no burden on plaintiff other than to prove that the injury meets one of the threshold categories." Id. at 493.

The Court reasoned that "'the Legislature is presumed to be aware of judicial construction of its enactments,'" id. at 494 (quoting N.J. Democratic Party, Inc. v. Samson, 175 N.J. 178, 195 n.6 (2002)), and that "the Legislature knows how to incorporate into a new statute a standard articulated in a prior opinion of this Court." Id. at 494-95. The Court thus concluded that the Legislature must have "consciously omitted the serious life impact standard" created by the Oswin decision. Id. at 494. Additionally, the Court reasoned that because many of the subjective features of the original nine categories were gone, particularly the ninth category's phrasing of the standard for an injury which limits life activities, the original impetus behind its creation of the "serious impact" requirement was now gone. Id. at 500-01. The Court thus held that the new verbal threshold did not also include an Oswin-type "serious impact" requirement. Id. at 506.

Changes to the threshold requirements under the various versions of the No Fault insurance laws have no bearing on the TCA in light of the Court's statement in Brooks that "[t]he substantive standards in the two statutes . . . differ." Brooks, supra, 150 N.J. at 403-04. Further, we see no basis upon which to import into the TCA the rationale underlying the judicial interpretation of AICRA. The two statutes serve separate legislative purposes. The purpose underlying all of the versions of the No Fault insurance laws, including AICRA, is to hold down automobile insurance premiums. The purpose of the TCA, on the other hand, is to limit claims that can be made against public entities in order to protect the public fisc. The Legislature could have, but did not, amend the TCA at the time it amended AICRA to lower the threshold required to make a claim. Indeed, the argument plaintiff makes in this appeal is one that would more appropriately be directed to the Legislature.

Finally, plaintiff attempts to make an argument that the TCA threshold violates his Equal Protection and Due Process rights. We first note that plaintiff did not raise this issue in the trial court, and it is therefore not properly before us. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Further, the argument lacks substantive merit and has been rejected. Rivera v. Gerner, 89 N.J. 526, 534 (1982).

Affirmed.

Marc Bellvue's wife, Marie Bellvue, was also a plaintiff, asserting a per quod claim.

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

(continued)

(continued)

15

A-1868-08T2

October 26, 2009