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Comitale v. Masters

June 23, 1997

BERNADETTE COMITALE, PLAINTIFF-APPELLANT,
v.
TIMOTHY MASTERS, DEFENDANT-RESPONDENT.



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

Approved for Publication June 23, 1997.

Before Judges Dreier, Newman and Villanueva. The opinion of the court was delivered by Newman, J.A.D.

The opinion of the court was delivered by: Newman

The opinion of the court was delivered by

NEWMAN, J.A.D.

Plaintiff, Bernadette Comitale, appeals from the grant of summary judgment dismissing her complaint and from the denial of a motion for reconsideration of that decision. We affirm.

Plaintiff was allegedly injured in a rear-end accident while waiting in a line of traffic on the Garden State Parkway in New Jersey. The accident was not the subject of a police report. She resides in Pennsylvania and obtained automobile insurance with American Independence Insurance Company based in Plymouth Meeting, Pennsylvania. As a Pennsylvania resident, she elected the limited tort option, similar to the verbal threshold in New Jersey, N.J.S.A. 39:6a-8, available to her under the policy.

Defendant, Timothy Masters, also resided in Pennsylvania and was insured through an Allstate Insurance Company Pennsylvania automobile policy. Allstate is authorized to do business in New Jersey; American Independence Insurance Company, plaintiff's insurer, is not.

Plaintiff did not seek immediate medical treatment. She did, however, consult with Dr. Ostroff. Initially, plaintiff had spasm that was confirmed by the reverse lordotic curve of the cervical spine. Dr. Ostroff made this diagnosis one day after the accident, on September 7, 1993. A few weeks later, paraspinal spasm was noted, but nothing after that. She completed treatment with Dr. Ostroff in late November 1993 but scheduled a follow-up examination in December 1993.

After completing seven treatments, Dr. Ostroff stated that plaintiff was fully asymptomatic in all of the involved regions. He noted that "as only six months have passed since the original injury, I suspect that she will have periodic achiness stemming from perhaps low-grade myofascitis, but I do not feel she will have permanent injury."

Plaintiff was also referred to Dr. Maxwell Strepanuk. In a November 11, 1993 report, Dr. Strepanuk indicated that plaintiff had a resolving cervical strain and sprain and a resolved lumbar and dorsal strain and sprain. He noted no cervical pain and a full range of motion. Dr. Strepanuk indicated that any stiffness in plaintiff's neck should resolve with time.

Since the accident, plaintiff still frequents the gym -walking on the treadmill, using the Stairmaster and riding the stationary bicycle. She also jogs up to two miles per day. However, she claims that she does not work out with the free weights as she did in the past.

The motion Judge, George L. Seltzer, determined that plaintiff should be bound by the limited tort option that she elected in Pennsylvania. On the motion for reconsideration, he concluded

There is no reason to believe N.J. now provides unlimited access to a non-resident who has voluntarily restricted her home state right simply because the accident occurs in N.J. Such a result flies in the face of common sense. If a non-resident resided in a state without a choice, the deemer statute would impose one, a result perhaps not possible without a policy into which the choice can be imputed. (Although N.J. might impose such a restriction as a condition for use of its roads). Here no such analysis is necessary ...


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