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WITTY v. UNITED STATES

November 15, 1996

DAVID WITTY, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: ORLOFSKY

ORLOFSKY, District Judge:

 Defendant has moved for partial summary judgment, pursuant to Fed. R. Civ. P. 56, on Plaintiff's claims for non-economic loss contained in the First Count of his complaint. The issues presented to the Court by Defendant's motion are: (1) whether the United States, which is self-insured, is nonetheless entitled to rely upon the immunity provided by New Jersey's "verbal threshold," N.J.S.A. § 39:6A-8a, an issue of first impression in this District; and (2) if so, whether the non-economic injuries alleged by the Plaintiff satisfy New Jersey's "verbal threshold." For the reasons that follow, I find that the United States, although self-insured, is entitled to the protective umbrella of immunity created by New Jersey's "verbal threshold" and that the non-economic injuries alleged by the Plaintiff do not meet the "verbal threshold." Accordingly, summary judgment will be granted on Plaintiff's claims for non-economic loss contained in the First Count of his complaint.

 I. Facts and Procedural History

 This action arises out of a motor vehicle accident in Wayne, New Jersey, on May 9, 1994, between a motor vehicle owned and operated by the Plaintiff and a motor vehicle owned by the United States and operated by Edward DeRobertis, an agent of the Bureau of Alcohol, Tobacco and Firearms, while acting in the scope of his employment.

 At the scene of the accident, Plaintiff complained of neck pain. (Gallagher Decl., Ex.H). Shortly thereafter, Plaintiff commenced a course of treatment with Dr. Lawrence Nessman and then physical therapy with Dr. Matthew Lister for approximately six months. (Gallagher Decl., Exs.B and D).

 The Plaintiff's automobile insurance policy in effect at the time of accident included the election of a verbal tort threshold. (Gallagher Decl., Ex.A). The vehicle owned by the United States was self-insured by the Government and not covered by an insurance policy.(Gallagher Decl., Ex.H).

  On July 5, 1995, Plaintiff filed the complaint in this action against the United States. *fn1" In the First Count of his complaint, Plaintiff alleges that Edward DeRobertis, while acting within the scope of his employment with the United States, negligently caused his vehicle to strike and collide with Plaintiff's vehicle on May 6, 1993. (Complaint, First Count P 4). Plaintiff contends that, as a result of the accident, he "sustained serious personal injuries, some of which are believed permanent, was prevented from transacting his business, suffered great pain of body and mind and incurred expenses for medical expenses and hospitalization in the sum of $ 17,055.00." (Complaint, First Count P5). Plaintiff requests a judgment against the United States for $ 150,000.00 to compensate him for these injuries. (Complaint, First Count). Plaintiff also seeks to recover $ 2,595.15 from the Defendant for the damages sustained by his vehicle as a result of the accident. (Complaint, Second Count P4).

 Defendant has moved for partial summary judgment on Plaintiff's claims for non-economic damages contained in the First Count of his Complaint.

 II. Summary Judgment Standard

 A party seeking summary judgment must "show that there is no genuine issue as to any material fact and that [he or she] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (c). See also Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996); Hersh v. Allen Products. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). In deciding whether there is a disputed issue of material fact the Court must view all inferences, doubts and issues of credibility in favor of the non-moving party. See Pennsylvania Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995); Helen L. v. DiDario, 46 F.3d 325, 329 (3d Cir.), cert. denied, 133 L. Ed. 2d 26, 116 S. Ct. 64 (1995); Hancock Indus. v. Schaeffer, 811 F.2d 225, 231 (3d Cir. 1987) (citation omitted); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. denied, 465 U.S. 1091, 79 L. Ed. 2d 910, 104 S. Ct. 2144 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Moreover, Federal Rule of Civil Procedure 56(e) provides:

 
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

 Fed. R. Civ. P. 56 (e).

 Under this rule, a defendant must be awarded summary judgment on all properly supported issues identified in its motion, except for those for which a plaintiff has provided evidence to show that a question of material fact remains. Put another way, once the moving party has properly supported its motion, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). A summary judgment movant may meet its burden by showing that the opposing party is unable to meet its burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Nonetheless, a defendant, as the moving party on the motion, bears the initial responsibility of demonstrating the absence of a genuine issue of material fact. Id.

 The principal issue raised by Defendant's motion is whether the United States, which is self-insured and carries no automobile liability insurance, may rely on the immunities provided by New Jersey's statutory "verbal threshold" *fn2" as a defense to Plaintiff's claims for non-economic injuries. Because I conclude that the United States may rely on the immunities provided by the verbal threshold, I must also determine whether the non-economic injuries alleged by the Plaintiff in his complaint are sufficient to overcome the statutory hurdle embodied in New Jersey's verbal threshold.

 For the reasons that follow, I conclude that the injuries alleged by Plaintiff do not satisfy the verbal threshold, and therefore, will grant Defendant's motion for partial summary judgment on Plaintiff's claims for non-economic injury contained in the First Count of his complaint.

 A. Applicability of New Jersey's Statutory Verbal Threshold

 Plaintiff's suit against the United States is brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 et seq., which "subjects the United States to tort liability for negligence." Reo v. United States Postal Service, 98 F.3d 73, 1996 WL 589209 (3d Cir. 1996). Under the FTCA, the United States is liable "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. Moreover, the FTCA provides that the United States is liable for tort claims in accordance with the law of the place where the tortious act occurred. See Reo, at *1 ("'the extent of the United States' liability under the FTCA is generally determined by reference to state law'") (citing Molzof v. United States, 502 U.S. 301, 116 L. Ed. 2d 731, 112 S. Ct. 711 (1992)).

 In this case, because the tortious act of the Defendant is alleged to have occurred in New Jersey, the liability, if any, of the United States must be determined by reference to New Jersey law. In New Jersey, the right of a plaintiff in a motor vehicle accident case to sue for non-economic losses, i.e., pain and suffering, is governed by statute. N.J.S.A. § 39:6A-8 provides in relevant part that:

 
Every owner, registrant, operator or occupant of an automobile to which [N.J.S.A. § 39:6A-4] personal injury protection coverage, regardless of fault, applies, and every person or organization legally responsible for his acts or omissions, is hereby exempted from tort liability for nonecomonic loss to a person who is subject to this subsection and who is either a person who is required to maintain the coverage mandated by this act, or is a person who has a right to receive benefits under [N.J.S.A. § 39:6A-4].

 Under the New Jersey statutory scheme, "persons buying automobile insurance . . . choose between two types of coverage regarding the right to seek recovery of noneconomic losses resulting from automobile-related injuries." Oswin v. Shaw, 129 N.J. 290, 297, 609 A.2d 415 (1992)(citing N.J.S.A. § 39:6A-8). The first type of coverage, known as "the 'verbal threshold,' allows for recovery for noneconomic losses resulting only from those personal injuries that fit into one of nine ...


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