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Loftus-Smith v. Henry

January 23, 1996

CATHRYNE M. LOFTUS-SMITH, PLAINTIFF-APPELLANT, AND GREGORY A. SMITH, HER HUSBAND, *FN1 PLAINTIFF,
v.
SUSAN MARGARET HENRY, WILLIAM C. JOBES, CORA S. COLLINS, CONCEPCIO FIGUEROA AND ZULMA M. FIGUEROA, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Burlington County.

Approved for Publication January 23, 1996. As Corrected February 7, 1996.

Before Judges Michels, Baime and Villanueva. The opinion of the court was delivered by VILLANUEVA, J.A.D.

The opinion of the court was delivered by: VILLANUEVA

The opinion of the court was delivered by VILLANUEVA, J.A.D.

Plaintiff Cathryne Loftus-Smith appeals from a summary judgment dismissing with prejudice her complaint for both economic and noneconomic damages because of her failure to satisfy the verbal threshold, N.J.S.A. 39:6A-8a (the Statute). The trial court held, inter alia, that plaintiff had not met the verbal threshold which barred her claims against defendant Susan Margaret Henry, a non-resident, as well as all the other defendants.

Plaintiff seeks a reversal of the summary judgment and a remand for a trial, contending that the trial court erred in ruling that (1) an out-of-state insurer neither transacting nor authorized to transact business in New Jersey is permitted to raise the verbal threshold as a defense to full tort liability; (2) the verbal threshold was a bar to recovery of her economic losses; and (3) her injuries did not meet the standard of the verbal threshold with respect to her claims for noneconomic damages to survive summary judgment.

The primary issue is whether a non-resident automobile driver insured by a foreign insurance company not authorized to transact business in New Jersey but whose policy requires the company to afford personal injury protection (PIP) benefits to the same extent as the state in which an accident occurs is an "exempt" person under N.J.S.A. 39:6A-8a qualified to raise the verbal threshold as an affirmative defense. We hold that such a non-resident insured is not entitled to the benefit of the exemption.

On February 24, 1991, plaintiff, then 23 years of age, was involved in a five-car chain reaction accident. Her Nissan Sentra was struck in the rear by a Ford Mustang driven by Susan Margaret Henry, which in turn was struck from behind by William Jobes' car. Mr. Jobes' car was then hit from behind by Cora Collins' car, which was then struck from behind by Zulma Figueroa who was driving Concepcio Figueroa's car. After the accident, Henry's car was the only one that could not be driven away. In March 1991, Henry was found guilty of careless driving in the Westhampton Municipal Court.

Henry's driver's license showed her residence as Philadelphia, Pennsylvania. Her car, however, was registered in Arizona. Her insurance Policy was issued in Arizona by North American Indemnity Company, *fn2 a Louisiana corporation, apparently authorized to transact business in Arizona but not New Jersey. Henry is subject to the verbal threshold on her automobile insurance policy.

Following the accident, plaintiff was taken to Burlington County Memorial Hospital where x-rays were taken and she was diagnosed with "cervical h/s strain/sprain." The nature and extent of all of plaintiff's injuries are discussed (infra) at page 15.

Plaintiff alleges that she had intended to go to nursing school, but she is unable to do so because her doctors told her she cannot perform heavy lifting. Plaintiff's vocational-economist, assuming that plaintiff was medically precluded from performing certain exertional duties, estimated the difference between plaintiff's pre-injury earning capacity and her post-injury earning capacity to be as much as $15,000 annually since she would be limited to certain nonexertional jobs.

On September 4, 1991, plaintiff and Gregory A. Smith, her husband, filed a complaint in the Superior Court seeking economic and noneconomic damages against the following defendants: Susan Margaret Henry, William C. Jobes, Cora S. Collins, Concepcio Figueroa and Zulma M. Figueroa. Plaintiff's husband sought damages for loss of services and consortium. On June 24, 1993, a consent order dismissing Gregory A. Smith's claim was entered.

After all defendants filed motions for summary judgment to dismiss the complaint predicated upon plaintiff's failure to satisfy the verbal threshold, the trial court found that plaintiff did not set forth an objective test showing serious injury caused by the February 24, 1991, accident. The trial court reasoned that "the only objective test that plaintiff underwent which shows signs of an injury was the April 9, 1991, CAT scan; yet, the test result was the same as the CAT scan result after plaintiff's 1989 accident. . . . New injuries or a worsening of any of plaintiff's previous injuries have not been documented." The trial court thus concluded that the impact on plaintiff's life is irrelevant since plaintiff did not prove the first prong of Oswin v. Shaw, 129 N.J. 290, 609 A.2d 415 (1992), by producing objective credible medical evidence of an injury.

The trial court then rejected plaintiff's argument that Henry did not have standing to assert the verbal threshold as a defense because she is a Pennsylvania resident insured by a company not authorized to transact business in New Jersey. The trial court ruled that all that is required for a defendant to raise the verbal threshold to bar plaintiff's claim is that PIP coverage be applicable. Henry's insurance policy indicates that at the time of the accident she had the right to PIP coverage at least in the minimum amounts and types of coverage that the foreign state of an accident requires. Therefore, the trial court held that Henry had standing to raise the verbal threshold as an affirmative defense.

On May 11, 1994, the trial court granted summary judgment in favor of all defendants dismissing plaintiff's claims for noneconomic loss but reserved the decision regarding economic loss until the Supreme Court decided Roig v. Kelsey, 262 N.J. Super. 579, 621 A.2d 540 (App. Div.), certif. granted, 133 N.J. 445 (1993).

On October 7, 1994, after hearing arguments on plaintiff's motion for reconsideration, the trial court noted that subsequent to entry of the May 11 order, Roig v. Kelsey, 135 N.J. 500, 641 A.2d 248 (1994), had been decided. In Roig, the Supreme Court held that N.J.S.A. 39:6A-12 of the New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1 to -35 (No-Fault Law), prohibits an injured party from recovering from a tortfeasor the medical-expense deductible and twenty-percent copayment under a PIP policy. The trial court, interpreting Roig, held that plaintiff is barred from recovering economic damages as well.

The trial court then addressed plaintiff's argument that in order for the verbal threshold to bar plaintiff's claim against Henry, N.J.S.A. 17:28-1.4, the "deemer" statute, must be satisfied. The trial court concluded that the

Next, the trial court considered plaintiff's motion to reconsider the determination that plaintiff's injuries did not satisfy the verbal threshold and again concluded that plaintiff did not prove a preexisting injury and the subsequent aggravation of such, and accordingly denied plaintiff's motion for reconsideration.

On October 24, 1994, plaintiff's complaint was dismissed with prejudice as to all defendants. ...


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