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Costa v. Perez

April 5, 1994

NELLY COSTA, PLAINTIFF,
v.
VIRGINIA PEREZ, GEORGE LYTWYN AND LEASE AND GO, DEFENDANTS, ZULEMA ORTIZ, PLAINTIFF-APPELLANT,
v.
VIRGINIA PEREZ, GEORGE LYTWYN AND LEASE AND GO, DEFENDANTS-RESPONDENTS, VIRGINIA PEREZ, PLAINTIFF,
v.
GEORGE LYTWYN, LEASE AND GO AND JOHN DOE AND ANY OTHER PARTIES WHO MAY BE NECESSARY TO BE BROUGHT INTO THIS PROCEEDING, DEFENDANTS.



Judges Pressler, Brochin and Kleiner.

The opinion of the court was delivered by: Kleiner, J.S.C., (temporarily assigned).

Argued March 15, 1994

This is a verbal threshold case in which plaintiff Zulema Ortiz appeals from the grant of summary judgment in favor or defendants. *fn1 The motion judge determined that plaintiff failed to meet the tort threshold requirements embodied in N.J.S.A. 39:6A-8a and described as a Type 9 injury. Oswin v. Shaw, 129 N.J. 290, 315, 609 A.2d 415 (1992). Using a summary-judgment model which is the correct procedure in all verbal threshold cases, id. at 294, 609 A.2d 415, and based on our analysis of the Type 9 injury, we conclude that defendants' summary judgment motions should have been denied and accordingly, we reverse.

N.J.S.A. 39:6A-8a enumerates nine categories or types of injury which are exceptions to a general prohibition of claims for non-economic loss attributable to the ownership, operation, maintenance, or use of an automobile in the State. The statute is drafted in terms of objective gradation of injury severity commencing with Type 1, "death" and proceeding in decreasing severity to Type 9 which is applicable to "nonpermanent injury." *fn2 The specific categories are:

Type 1: death;

Type 2: dismemberment;

Type 3: significant disfigurement;

Type 4: a fracture;

Type 5: loss of a fetus;

Type 6: permanent loss of use of a body organ, member, function or system;

Type 7: permanent consequential limitation of use of a body organ or member;

Type 8: significant limitation of use of a body function or system

Type 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 [hereinafter "90/180-day requirement"]. [Id. at 315, 609 A.2d 415].

Oswin teaches that the New Jersey verbal threshold statute was modeled after the New York statute. However, unlike New York, which requires "serious injury" as a predicate upon which non-economic loss claims are assertable, the New Jersey statute does not expressly use the term "serious injury." Our statute ...


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