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Rescigno v. Picinich

Decided: June 30, 1977.

PETER J. RESCIGNO, PLAINTIFF,
v.
JOHN A. PICINICH, DEFENDANT



Young, J.c.c., Temporarily Assigned.

Young

[151 NJSuper Page 589] The efforts of plaintiff, Peter J. Rescigno, in resisting a motion for an order of summary judgment present for determination questions which require an interpretation and application of the terms of the tort liability exemption section of the New Jersey Automobile Reparation Reform Act (No-Fault Law). More particularly, should this court extend the discovery rule to an auto negligence action in which permanent injuries are

alleged and hold that the cause of action does not accrue, and thus the statute of limitations does not commence to run, until the plaintiff has acquired knowledge that his injuries are of a permanent nature or, alternatively, until he learns that his medical expenses have amounted to or are likely to amount to the threshold of $200? N.J.S.A. 39:6A-1 et seq. , 39:6A-8; N.J.S.A. 2A:14-2.

Plaintiff filed his complaint on March 1, 1977, more than two years following the date of the automobile accident (February 2, 1975), which gives rise to the claim. The gravamen of the claim as well as plaintiff's legal position are conjoined in paragraphs 3 and 4 of his pleading:

3. As a proximate result of the negligence of the defendant, plaintiff was seriously injured in and about his head, arms, legs and body, a pre-existing condition was aggravated and he was required to receive medical and hospital attention for his injuries, which are permanent in character, and which prevented him from attending to his usual duties for a long period of time.

4. Plaintiff is eligible to maintain this action under the No Fault Statute as his medical expenses exceed the sum of $200.00 and he has a permanent injury. Plateau of $200.00 was reached on March 2, 1975.

Defendant interposed as a separate defense the bar of the statute of limitations, N.J.S.A. 2A:14-2, and invokes that defense on the pending motion for an order of summary judgment.

The chronology of events as drawn from the complaint, plaintiff's affidavit and the exhibits annexed thereto is here summarized. As a result of a collision of automobiles operated by the parties on February 2, 1975 plaintiff alleges that he sustained soft-tissue injuries for which he was given first-aid treatment at North Hudson Hospital, Weehawken, New Jersey. He consulted his personal physician the following day and received treatment for hypertension. Later, on February 11 and February 20, he was treated for viral pneumonia, for which he was hospitalized from February 26 to March 15, 1975 at Doctor's Hospital, New York City.

Plaintiff concludes his affidavit with the statement: "On March 21, 1975, I received a bill from Dr. Seiffer and it was then that I learned that my medical expenses which I attribute to this accident were in excess of $200.00." Annexed to the affidavit are photocopies of bills on the stationery of Bertram H. Seiffer, M.D., reflecting charges of $160 for the visits during February 1975 and $375 for visits during March 1975 -- for a total of $535 which was paid April 2, 1975, as per the physician's endorsement on his statement dated March 20, 1975. There is also annexed a copy of a cash receipt issued by the hospital, dated March 15, 1975, acknowledging payment of its bill of $749.84 for plaintiff's account.

Plaintiff's initial argument is that his cause of action did not accrue for limitations purposes until he became aware that he had incurred $200 in eligible medical expenses. That financial plateau was reached, he states, with the medical charges of March 2, 1975. Since he did not receive those charges from his physician until March 21, 1975 plaintiff asserts that he had two full years thereafter within which to file his action, so that a filing on March 1, 1977 was timely. Plaintiff urges upon the court the reasoning and the conclusions reported in Montag v. Bergen Bluestone Co. , 145 N.J. Super. 140 (Law Div. 1976).

The holding in Montag is that a cause of action under the New Jersey Automobile Reparation Reform Act to recover damages for non permanent soft-tissue injury did not accrue for limitation purposes until plaintiff actually incurred or should have known that she would incur $200 in eligible medical expenses. 145 N.J. Super. at 143. It is readily apparent that the case at bar presents an element from which a basic distinction may be drawn with the Montag case, namely, that plaintiff here alleges permanent injury. When a permanent injury is sustained there is no necessity to await the accrual of a monetary threshold. When an injury, even if of soft tissue, is of a serious nature, variously described as "permanent" in the statute and

as a "major injury" by the consultant to the legislative commission which submitted the legislation, there is no exemption from tort liability. N.J.S.A. 39:6A-8; Iavicoli, No Fault and Comparative Negligence in New Jersey , ยง 54 at 131 (1973). Moreover, it has been held that when permanent injury is alleged, a defendant may accept such an allegation at face value so that there is no duty to affirmatively ...


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