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Shorter v. Leach

Decided: June 10, 1994.

TAMMY S. SHORTER AND RICHARD L. SHORTER, PLAINTIFFS,
v.
WILLIAM L. LEACH, NATIONAL CAR RENTAL, JOHN DOE, A FICTITIOUS INDIVIDUAL, XYZ CORPORATION, A FICTITIOUS CORPORATION, DEFENDANTS.



Schlosser, J.s.c.

Schlosser

OPINION

SCHLOSSER, J.S.C.

This is a verbal threshold case which arises out of a motor vehicle accident that occurred on Hanover Street in Pemberton, N.J. on December 29, 1991. It comes before the court on the motion of defendants for summary judgment. The issue presented is whether economic loss alone creates a serious impact on plaintiff's lifestyle sufficient to cross the verbal threshold.

The plaintiff, Tammy S. Shorter, was the driver of an automobile which was struck by an automobile operated by defendant, William L. Leach. Plaintiff sustained personal injuries as a result of the collision and, along with her husband, filed suit against defendants. Plaintiff was insured under a policy issued by State Farm Insurance Company and elected the verbal threshold tort option as enunciated in N.J.S.A. 39:6A-8(a). Defendants have brought this motion for summary judgment alleging that plaintiff

has failed to meet the verbal threshold. Plaintiff opposes defendants' motion claiming that a genuine issue of material fact exists as to whether plaintiff has met the verbal threshold as to type seven, eight or nine. At issue is the criteria needed to satisfy the "serious impact" requirement under Oswin, infra.

A brief recitation of the facts follows.

Following the automobile accident, plaintiff was seen at Memorial Hospital of Burlington County where x-rays of plaintiff's skull and spine were negative for fractures. Plaintiff then presented herself to the office of Dr. W. Edward Horswood, D.C., for examination on December 23, 1991 with complaints of severe headaches, severe pain and numbness in the right shoulder and neck pain. She treated with Dr. Horswood approximately 33 times from December 23, 1991, through December 10, 1992. In his final report dated December 2, 1993, Dr. Horswood noted upon physical examination that there was spasm in the cervical paraspinal musculature along with significant decreases in range of motion in the neck. He also noted that x-rays taken on December 23, 1991, revealed rotational malposition of C2, 5 and 6; flexion malposition of C5 indicative of ligamentous damage; loss of cervical curve and narrowing of the intervertebral foramen at C4, 5 and 6. His final report was issued December 2, 1993. Spasm was still present and plaintiff had decreased range of motion in the cervical spine by degrees as follows: flexion 20/60, extension 10/45, right rotation 40/80, left rotation 40/80, right lateral flexion 15/45, and left lateral flexion 20/45. His diagnosis was post traumatic cervical sprain and strain and encephalgia. Dr. Horswood opined that plaintiff, due to the ligamentous injury, suffered a partial disability which is permanent in nature and causally related to the automobile accident of December 23, 1991.

Plaintiff was also examined by Dr. Joel F. Yudin, D.O., on December 26, 1991, January 7, 1992 and January 21, 1992. Dr. Yudin initially found decrease of cervical and thoracic range of motion with bilateral trapezius spasm. However, in his report dated February 24, 1992, Dr. Yudin indicates that by his last

examination, plaintiff's range of motion was full and that plaintiff's symptoms appear to have resolved themselves. An MRI was ordered and found to be negative. Dr. Yudin opined that he did not expect any permanent damage as a result of the accident.

Plaintiff was seen by Dr. Eric Chesloff, D.C., for an independent medical examination on March 10, 1993. Dr. Chesloff in his report dated March 16, 1993, found substantial diminished range of motion in the cervical and thoracolumbar spines but did not detect any symptoms which would support plaintiff's residual complaints nor did any ...


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