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Brown v. Puente

Decided: June 2, 1992.

GREGORY BROWN, PLAINTIFF-RESPONDENT,
v.
LOUIS PUENTE, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Camden County.

Pressler, Shebell and D'Annunzio. The opinion of the court was delivered by Pressler, P.J.A.D.

Pressler

The opinion of the court was delivered by

PRESSLER, P.J.A.D.

This appeal requires us to address important procedural questions respecting the right of persons subject to the socalled verbal threshold of N.J.S.A. 39:6A-8a to bring a common-law negligence action to recover the non-economic losses they sustain in automobile accidents where there is a genuine dispute as to whether the threshold has been met. We hold that the disputed issue is to be determined at trial, not before trial, and by the jury, not the Judge.

Plaintiff Gregory Brown brought this action to recover damages for soft tissue back and neck injuries he suffered when the automobile in which he was a passenger was struck by a vehicle owned and operated by defendant Louis Puente. On leave granted defendant appeals from a partial summary judgment

entered by the trial court denying his motion to dismiss the action by reason of plaintiff's failure to meet the verbal threshold prescribed by N.J.S.A. 39:6A-8a and granting plaintiff's cross-motion for a declaration that he did meet the threshold. We affirm the denial of defendant's motion but reverse the grant of plaintiff's motion.

The accident occurred on July 11, 1989. Plaintiff, then seventeen, was on his summer vacation between his junior and senior years in high school. His doctors' reports attest to cervical and lumbosacral strain and sprain accompanied by chronic pain and objectively determined limitation of motion. The treating physician's report of an examination conducted on November 29, 1991, more than two years after the accident, continues to report significant limitation of motion of both the cervical and lumbosacral spine accompanied by marked tenderness, muscle spasm and pain. The physician's Conclusion was that ". . . these injuries are of a permanent nature especially since they have lasted as long as they have after the accident and course of intensive physical therapy." Plaintiff's own certifications attest to his severe chronic pain since the accident, his having had to give up high school athletics and particularly track at which he had excelled in his first three years of high school, and the adverse effect of the injury on his ability to manage as a college student since he is unable to sit or read or study for long periods of time.

Against the foregoing characterization of plaintiff's injuries and their effect on him is the report of the defense physician who examined plaintiff on August 14, 1990. The physician reports plaintiff's complaints of daily headaches, his lack of complaint about his neck or back, the lack of objective findings of a continuing orthopedic disability referable to the accident, and the physician's opinion that plaintiff indeed suffered from no continuing orthopedic disability.

The trial Judge, responding to defendant's motion and plaintiff's cross-motion, concluded that the issue of the verbal

threshold could be decided on these proofs alone without an evidential hearing. He also concluded that despite the apparent dispute of plaintiff's condition by defendant's examining physician, plaintiff had satisfied the verbal threshold. While we are persuaded that the questions raised by the record on the motion respecting plaintiff's meeting of the verbal threshold precluded the grant of defendant's motion to dismiss, those questions were not resolvable in plaintiff's favor either ...


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