This matter comes before this court by way of defendant's, Giuseppe Gramuglia (hereinafter "Gramuglia"), motion for summary judgment seeking to dismiss plaintiff's complaint contending it is barred by N.J.S.A. 39:6A-8(a), the Verbal Threshold.
The facts may be summarized as follows:
On November 14, 1989, the plaintiff, Nick Siriotis (hereinafter "Siriotis"), and the defendant were involved in an automobile accident. The accident occurred at the intersection of Center Avenue and Bridge Plaza Street in Fort Lee, New Jersey. The plaintiff filed suit as a result of alleged injuries sustained in the accident. Plaintiff elected the Verbal Threshold in his automobile insurance policy.
The plaintiff alleges he was stopped at a red light located at the intersection when he was struck from the rear by the defendant's vehicle. The plaintiff's vehicle then struck an unidentified vehicle situated in front of him at the intersection. As a result of the impact, the plaintiff contends he sustained injuries to his neck and back. Plaintiff was taken to the
emergency room at Englewood Hospital where X-rays were taken that revealed no fractures or dislocations. Plaintiff lost no time from work and suffered no wage losses in regard to his injuries.
Plaintiff was treated for his injuries by Dr. Richard Tancer (hereinafter "Dr. Tancer"), from November 16, 1989 until May 2, 1990. Although Mr. Siriotis is no longer being treated, he alleges that he still suffers from pain and that his work and usual activities continued to be adversely affected.
In addition to being treated by Dr. Tancer, the plaintiff was examined by defendant's expert, Dr. Coyle. Dr. Coyle opined that the plaintiff suffered no permanent injuries as a result of the accident.
Defendant, Giuseppe Gramuglia, contends he is entitled to an order dismissing plaintiff's complaint, due to plaintiff's failure to meet the requirements for maintaining a cause of action pursuant to N.J.S.A. 39:6A-8(a), the Verbal Threshold.
New Jersey Rules of Court, 4:46-2 sets forth the standard for summary judgment as follows:
The judgment or order sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.
This standard was applied by the Supreme Court in Judson v. Peoples Bank and Trust of Westfield, 17 N.J. 67, 110 A.2d 24 (1954), where the Court explained that summary judgment is to be granted when there are no issues of material fact which require disposition at trial.
"But, (if) there is the slightest doubt as to the existence of a material issue of fact, the motion should be denied." Shanley & Fisher, P.C. v. Sisselman, 215 N.J. Super. 200, 211, 521 A.2d 872 (App.Div.1987).
The application of the limitation on the right to sue for noneconomic losses contained in N.J.S.A. 39:6A-8(a), the Verbal Threshold, has recently been addressed by the New Jersey Appellate Division in Oswin v. Shaw, 250 N.J. Super. 461, 595 A.2d 522 (App.Div.1991). In Oswin, the trial judge dismissed a suit brought by an auto accident victim who suffered a neck injury when her car was hit from behind by another vehicle. The victim, Annie Oswin (hereinafter referred to as "Ms. Oswin"), had an insurance policy that included the Verbal Threshold. The treating chiropractor for Ms. Oswin reported that she had "sustained a significant permanent injury from her accident", which was "in the form of a significant limitation of the use of a body function." Id. at 469-470, 595 A.2d 522. The Appellate Division noted that the wording used by the chiropractor was very close to the language of the Verbal Threshold statute. Id. at 472-473, 595 A.2d 522.
The trial judge ruled that Ms. Oswin's injury was a "soft tissue" injury which he said was exactly the type of injury the Verbal Threshold law was designed to eliminate as a cause of action. Id. at 468, 595 A.2d 522.
The Appellate Division ruled that just because an injury is a "soft tissue" injury it does not bar it from a claim under the Verbal Threshold statute. Id. at 470, 595 A.2d 522. However, the court did find that Ms. Oswin's injuries did not entitle her to bring suit. The Court ruled that "[T]he underlying facts . . . do not convince us that 'a prima facie case of serious injury has been established which would permit a plaintiff to maintain defendant's common-law cause of action in tort'." Id. at 472-473, 595 A.2d 522 [citing Licari v. Elliott, 455 N.Y.S.2d 570, 573, 57 N.Y.2d 230, 441 N.E.2d 1088, 1091 (1982)].
In the opinion, the Court made other various findings crucial to the interpretation of N.J.S.A. 39:6A-8(a), the Verbal Threshold Statute:
1) The Court concluded that all Threshold questions of qualifications of plaintiffs under the Verbal Threshold Statute must be determined by a Judge in advance of the anticipated tort trial. Id. [250 N.J. Super. ] at 470-471 [595 A.2d 522]. The Court rejected the contention that the Verbal Threshold issue should be settled by a jury. Id. at 471 [595 A.2d 522]. The Court conceded that the resolution of the issue of whether an injury is "serious" is fraught with imprecision. Id. at 470 [595 A.2d 522]. In any event, the Court said, "[I]t must be made, and made by the Judge in cases such as this if the statute is to have meaningful implementation." Id. The Court based this ruling on what it considered a clear message from Governor Kean which it found to be legislative intent of the statute. Id.
2) The Court ruled that a medical doctor's "mere parroting" of the Threshold Statute in his/her report is not enough to establish a prima facie case of "serious injury" under the Statute. Id. at 473 [595 A.2d 522]. [citing Saunderlin v. E.I. DuPont, 102 N.J. 402, 416, 508 A.2d 1095 (1986)]. The Court ruled that the "plaintiff has the burden of producing a persuasive, documentation showing that the Threshold "serious injury" has been met." Id.
3) The Court held that the real test, "is whether the injury has a serious impact on the plaintiff and his or her life." Id. [ 250 N.J. Super. ] of 470 [595 A.2d 522].
The above findings of the court were made under circumstances in which the defense "relied exclusively on plaintiff's own documentation of her claim and used no independent material in support of their motion" to dismiss plaintiff's complaint under the Verbal Threshold Statute. Id. at 467, 595 A.2d 522. The Appellate Division noted that the record before the trial court consisted of "plaintiff's answers to interrogatories, her doctor's report and bill, the hospital emergency room reports and the Police Report." Id. Due to the lack of any documentation or independent reports from the defense, the Appellate Division noted that, "there was no material issue or conflict of fact in the traditional sense on the motion for summary judgment." Id. The Appellate Division seems to indicate that if the plaintiff had met her burden of producing a "persuasive, documented showing that the Threshold of serious injury had been met", and the defense had produced a report contradicting those findings, that a "material issue or conflict of fact in the traditional sense on [a] motion for summary judgment" would have been presented. Id.
In the present case, the record before this court not only consists of plaintiff's answers to interrogatories, plaintiff's affidavit, Dr. Richard Tancer's medical report, and affidavit, medical bills, hospital emergency room bills and the police report, but it also contains a report by defendant's expert, Dr. Eugene J. Coyle.
A review of Dr. Tancer's medical report clearly indicates that the "mere parroting" of the Threshold Statute was not conducted. The report made findings of decreased range in motion of the cervical spine to rotation to the left of 20 degrees and to the right 30 degrees. The report also indicated side bending was diminished to the left by 15 degrees and to the right by 20 degrees. The report also made findings concerning plaintiff's legs where straight leg raising was 60 degrees to the left and 80 degrees to the right with pain, while normal straight leg raising is usually 90 degrees. The doctor's final diagnosis was as follows: "1) acute cervico-thoraco-lumbar sprain with myothesis; 2) persistent soft tissue changes to the above areas; and 3) permanent loss of motion of the lumbar spine." (See Appendix A).
Contrarily, Dr. Coyle concluded that, "this patient has reached the maximum plateau of recovery. There is no need for any additional treatment beyond this point and there is no permanency." (See Appendix B). This court also finds Dr. Coyle's report persuasive.
In comparing the two reports in this case, this court finds they clearly present a "material issue or conflict of fact in the traditional sense." Since this court has ruled that plaintiff has met its burden of producing a "persuasive, documented showing that the threshold of "serious injury" has allegedly been met, and due to defendant's contradictory report, this Court finds that summary judgment must be denied. The Appellate Division in Oswin clearly seems to indicate that the court's initial Threshold question is whether the doctor's report for the
plaintiff was a "persuasive, documented showing" that could meet the Threshold requirements. In the present case, this court finds that this has been met. However, due to the contradictory report provided by the defendant, material issues of fact are presented. As stated by the court in Hill v. Cochran, 175 N.J. Super. 542, 547, 420 A.2d 1038 (App.Div.1980):
"(s)ince the meeting of the threshold is an element of the cause of action, it should be subject to the same procedural rules which govern the proof and determination of any other elemental fact of any other cause of action. There is no conceptual reason why the permanency threshold question ...