Halpern, Larner and King. The opinion of the court was delivered by Larner, J.A.D.
This appeal concerns the propriety of an involuntary dismissal granted by the trial judge because of the failure of plaintiff to present evidence of the quantum of medical expenses which would qualify him to recover in tort under the no fault law of this State (New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1 et seq.).
Plaintiff was injured in an automobile accident involving two vehicles and operators admittedly subject to N.J.S.A. 39:6A-4 requiring personal injury protection coverage regardless of fault. Neither plaintiff nor defendant initiated any pretrial proceeding to test whether plaintiff's injury and/or medical expenses were such as to overcome the tort exemption granted by § 8 of the act. N.J.S.A. 39:6A-8. The complaint alleged "serious injuries both of a permanent and temporary nature," as well as damage claims for medical expenses and lost income. The answer generally denied the allegations and among other affirmative defenses, asserted that "The plaintiff has failed to meet the Tort Exemption as outlined in N.J.S.A. 39:6A [39:6A-1] et seq."
The case proceeded to trial where the only evidence as to injuries and medical treatment came from the mouth of plaintiff. On these issues he testified "My forearm and my face were cut * * * and my face and my back and neck and head hurt from being banged around." He received emergency treatment at a hospital and was subsequently treated by Dr. Briggs of Clifton because of complaints referable to his back, neck and head. The doctor and his nurse administered massage and heat treatments "about 20, 25 times."
Plaintiff also testified that he was a student and that his injuries interfered with his athletic activities of wrestling and football. After the last medical treatment his condition was "a lot better."
The trial was carried to the second day because of counsel's application to reopen to present another fact witness.
The next morning that witness was not produced and plaintiff rested. Defendant thereupon moved for an involuntary dismissal on the ground that plaintiff had failed to establish the statutory threshold of medical expenses of $200 in order to recover in tort against defendant. After arguments by both counsel the judge granted the motion for dismissal, holding that plaintiff had failed to prove the threshold requirement as a prerequisite of the existence of a cause of action in tort. Plaintiff appeals from that ruling.
It is clear that plaintiff did not sustain a permanent disability or disfigurement and that his claimed injuries were confined solely to the soft tissues of the body. Hence the narrow question is whether there was sufficient proof in the record to overcome the $200 statutory threshold.
There is little doubt that plaintiff failed to present any evidence of monetary expenses paid or incurred for the medical treatment necessitated by the injuries sustained in the accident. Nor did plaintiff suggest or offer to prove that element of the case through any factual presentation at side bar out of the presence of the jury.
The status of this record brings into sharp focus the troublesome procedural problems relating to the burden of going forward and the burden of persuasion on the issue of applicability of the tort exemption in the no fault law. Defendant relies upon the Law Division opinion of Seskine v. Cone , 139 N.J. Super. 307 (Law Div. 1976), which resulted in an involuntary dismissal because of failure of proof by plaintiff of the medical expense threshold. Plaintiff on the other hand relies upon the Law Division opinion to the contrary of Fennell v. Ferreira , 133 N.J. Super. 63 (Law Div. 1975), which held that the burden of proving the negative for the tort exemption rests with the defendant as an affirmative defense. The issue has not as yet been determined in the appellate courts of this State.
It is manifest that the purpose and design of the no fault law are to curtail litigation in the area of automobile personal injury claims by ...