April 19, 2001
JUDITH MONTEMAYOR, PLAINTIFF-APPELLANT,
JAMES S. SIGNORELLI, MARK P. SIGNORELLI, MARIA R. VANTOL AND CARINA VANTOL, DEFENDANTS-RESPONDENTS, AND RUBEN T. REYES AND JULIAN MONTEMAYOR, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2495-98.
Before Judges Stern, A. A. Rodríguez and Fall.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 30, 2001
Plaintiff appeals from the grant of summary judgment to defendants in this automobile accident case and from the denial of her motion for reconsideration. In addition to arguing that "there is objective [medical] evidence of injury which satisfies the verbal threshold" and that she "suffered injuries that had a serious impact upon her life and satisfy type 8" under the threshold statute, N.J.S.A. 39:6A-8(a), plaintiff asserts that "the grant of summary judgment should be reversed [because] the plaintiff is not subject to the verbal threshold." She claims that the verbal threshold statute does not apply because she is an adult daughter living with her insured father and that the Legislature and public policy preclude applying her father's choice of the verbal threshold upon her.
At about 10:59 p.m. on April 6, 1996, plaintiff was a passenger in an automobile owned by defendant Ruben T. Reyes,*fn1 but being driven by her father, defendant Julian Montemayor, when the vehicle was involved in a three-car accident on Kinderkamack Road in River Edge. On April 8, 1996, she went to the emergency room of Holy Name Hospital where she was diagnosed by the emergency room physician as having suffered a "cervical muscle strain with spasm." About six months later, on August 7, 1996, plaintiff sought treatment from Dr. Alexandra E. Rubin. On August 16, 1996, a magnetic resonance imaging study ("MRI") of plaintiff's spine was performed at Dr. Rubin's request. Dr. Richard Claps, a radiologist, reported:
No disc herniation or canal stenosis. Cervical cord and cervical medullary relations are normally maintained. On the axial view which extended from the upper portion of C4 to the C6-7 levels, there is no foraminal narrowing. On the T2 portion of the study there is normal signal from the cervical vertebral bodies and spinal cord. Mild diminished signal from the C2-3 disc consistent with disc desiccation. Signal from the remainder of the cervical vertebral discs are within normal limits.
CONCLUSION: Disc desiccation involving the C2-3 disc, otherwise normal study of the cervical spine.
Dr. Claps also reported that the MRI of the lumbar spine, simultaneously performed, was "normal."
Dr. Rubin supervised plaintiff's physical therapy until discharged on December 30, 1996. In her March 20, 1997 report, Dr. Rubin rendered a final diagnosis of "cervical sprain/strain; C2-C3 disc desiccation; fibromyositis; and lumbosacral sprain/strain." Dr. Rubin further concluded that:
Based on the history provided by the patient, my initial evaluation and follow-up, I believe that the injuries sustained were directly related to the motor vehicle accident on 4/5/96 (the patient was pain-free before the accident). In this type of injury (sprain and strain), the involved ligaments and muscles fibers are stretched and torn, causing inflammation with edema and some hemorrhage. These injured fibers are replaced by a scar tissue which will never be as flexible and elastic as normal tissue, contributing to limitation of motion and chronic recurrent fibromyositis.
At the time of the accident, plaintiff was twenty-seven years old and lived with her father. In her papers filed in opposition to the summary judgment motions, plaintiff certified she "did not own a vehicle" at the time of the accident and "was unaware that [her] father's [automobile] insurance policy contained a verbal threshold" limitation. Plaintiff further certified:
The day after the accident, I experienced increasing pain and stiffness in my neck and back. Because of the increasing pain, I visited the emergency room at Holy Name Hospital. In addition, I stayed home from work for a few days. Thereafter, I continued to suffer with pain and stiffness in my low back and neck. This pain and stiffness interfered with my ability to function normally. I did not seek further care immediately as I hoped that these [symptoms] would subside. However, the symptoms persisted and I finally decided to seek some additional medical care with Dr. Rubin. Over the next five months, I received some limited physical therapy and my symptoms did improve. However, at the end of my treatment I continued to suffer with pain and stiffness. These problems continued for another approximately six months following my treatment. During that additional six month period, I continued to have difficulty and limitation with lifting and bending and I treated myself with warm compresses and over the counter medicine. During this period, I [continued] to be limited at work and at home.
. . . As a result of those injuries I suffered a significant limitation of use of a body function or system. In particular, I lost my ability to normally and fully engage in my normal activities at work, at home and in recreation for over a year. At work, I was unable to fulfill my duties as a nurse. Because of neck and back pain, I was forced to avoid lifting patients. Lifting patients was a regular part of my daily duties as a nurse in a nursing home. During the year after the accident, I was unable to perform this heavy duty on approximately two out of every five working days. On those days, I was forced to ask other workers to take on this duty. In addition, I was forced to slow my pace and to move carefully so as not to worsen my condition. At home, I was also limited in my activities. On my days off, I would often stay home to rest my back and neck. I was unable to perform any household chores that required heavy lifting or bending. In addition, I avoided carrying heavy items when shopping. Prior to the accident, I was a regular bowler and I would go bowling every other week. During the year following the accident, I was forced to give up this regular recreational and social activity which was an important component of my life.
Judge Joseph Yannotti concluded that plaintiff had to satisfy the verbal threshold but did not do so. With respect to the latter, Judge Yannotti concluded:
In order to survive a motion for summary judgment, the plaintiff must show [a] material dispute of fact by credible, objective evidence. Plaintiff must also show a nexus between the injury and the disability. Finally, the . . . plaintiff must show that the injury had a serious impact on the plaintiff and her life.
Now, the evidence in this case shows that the plaintiff did not seek any medical treatment until two days after the accident. At that time, she sought treatment at the emergency room of Holy Name Hospital. She was diagnosed with acute cervical muscle strain with spasm. Also, [p]laintiff's neck was found to be stiff, without bony tenderness, with spasm, range of motion limited, secondary to pain.
The plaintiff did not seek further treatment until August 7, 1996. . . This was four months after the accident. . . Dr. [Rubin] noted in the report that the plaintiff did not seek treatment earlier, because she was working two jobs.
The plaintiff's diagnosis was cervical sprain or strain. And the doctor prescribed physical therapy as a treatment.
An MRI was . . . performed on August 16, 1996. The MRI of the cervical spine revealed dis[c] desiccation.
Subsequently, there's no evidence of any . . . spasm. The MRI revealed that . . . the lumbar spine was normal. There was no dis[c] herniation. There was no . . . abnormality of the facet joints. . . . [T]he only treatment that resulted here . . . [was] some physical therapy on nine separate occasions.
So, the sum and substance of the medical testimony is that there was a dis[c] desiccation at C2-3. . . However, there was . . . no dis[c] herniation. The lumbar spine was normal and there was no abnormality of the facet joints.
The Court finds that, based on the standards established by the Supreme Court in [Oswin v. Shaw, 129 N.J. 290 (1992)], that the medical evidence . . . is not sufficient to establish a serious injury as required by [Oswin]. There . . . was spasm earlier on, but that spasm dissipated and does not appear later - - does not appear at any point after four months after the accident.
Furthermore, the MRI, which is the most objective measure of the injuries, shows only dis[c] desiccation, which is not necessarily related to this particular accident and could very well have been the result of the normal processes of the body, not related specifically to this particular trauma or this particular injury.
We agree with this analysis. See Carmichael v. Bryan, 310 N.J. Super. 34, 50-51 (App. Div. 1998) (plaintiff failed to establish a "persistent muscle spasm"); Moreno v. Greenfield, 272 N.J. Super. 456, 462 (App. Div. 1994) (summary judgment reversed on appeal where spasms observed "over a two year period"); Owens v. Kessler, 272 N.J. Super. 225, 232 (App. Div. 1994) (summary judgment reversed on appeal where spasm continued twenty-six months after treatment). We add only that, while Dr. Rubin appears to report that even the disc desiccation was causally related to the accident, such a "drying" of tissue, see Schmidt's Attorneys' Dictionary of Medicine D-54 (December 2000), is usually considered degenerative, and the motion judge was justified in rejecting the existence of "credible, objective evidence" that the case falls within one of the categories in N.J.S.A. 39:6A-8(a) and that her condition was caused by the accident. See Oswin, supra, 129 N.J. at 314, 319-20; Sherry v. Buonansonti, 287 N.J. Super. 518, 522 (App. Div.), certif. denied, 144 N.J. 588 (1996); Cavanaugh v. Morris, 273 N.J. Super. 38, 39-40 (App. Div. 1994); Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993); Phillips v. Phillips, 267 N.J. Super. 305, 318-19 (App. Div. 1993). Moreover, particularly in the absence of proof that plaintiff's income or job status were in any way affected by the limitations she referred to in her certification, the record does not support a finding that the injuries had a serious impact on plaintiff's life. See Oswin, supra, 129 N.J. at 318; Sherry, supra, 287 N.J. Super. at 522; Cavanaugh, supra, 273 N.J. Super. at 39-40; Phillips, supra, 267 N.J. Super. at 317-18. Cf. Gilhooley v. County of Union, 164 N.J. 533, 541 (2000) (quoting Brooks v. Odom, 150 N.J. 395, 406 (1997)) (resolving similar threshold issue under the Tort Claims Act).
Because we agree with the motion judge that plaintiff did not satisfy the verbal threshold, we must consider whether she had to do so. On this issue Judge Yannotti stated, in pertinent part:
The statute in question, N.J.S.A. 39:6A- 8(a), speaks of the election of the tort options. And one of those options provides that every owner of an automobile is exempt from tort liability for non-economic loss to a person who is subject to this subsection and who is required to maintain coverage mandated by . . . this act or is a person who has a right to receive benefits under 39:6A-4.
And under 6A-8.1, the election that is made by the policyholder shall apply to the named insured and any immediate family member residing in the insured's household. And the statute defines immediate family member to mean the spouse of the named insured and any child of the named insured or spouse residing in the named insured's household who is not a named insured under another insurance policy.
The Court is satisfied that the statute applies in this case. The statute, as I said, applies to the tort election by the insured and to any member of his immediate family as defined in the statute. That includes any child of the insured, according to the plain language of the statute, who is living in the insured's household.
The statute does not reference minor child. It merely says any child, without any limitation as to age. Moreover and most significant of the [L]egislature's intent, is the further requirement that the child not be . . . a named insured under another automobile insurance policy. That language reflects a situation where the child would own his or her own car and have contracted for the child's own insurance. And these are . . . actions that are not generally undertaken by minors, but are instead indicative of the actions of adult children.
So, therefore, I think that other language, looking to the statute as a whole, also indicates that the [L]egislature did not intend to limit the application of the tort election to . . . minor children who are living at home with . . . the insured.
Again we agree with Judge Yannotti, and add only the following brief discussion.
At the time of this accident, N.J.S.A. 39:6A-8 provided in part:*fn2
The tort option provisions of subsection b. of this section shall also apply to the right to recover for non-economic loss of any person eligible for benefits pursuant to section 4 of P.L.1972, c. 70 (C. 39:6A-4) but who is not required to maintain personal injury protection coverage and is not an immediate family member, as defined in section 14.1 of P.L.1983, c. 362 (C. 39:6A-8.1), under an automobile insurance policy.
There is no dispute that (independent of her rights as a passenger in the Reyes vehicle) plaintiff was entitled to personal injury protection ("PIP") benefits as a member of her insured father's "family residing in his household." See N.J.S.A. 39:6A-4. Moreover, because plaintiff is an "immediate family member" residing in her father's household, she is bound by N.J.S.A. 39:6A-8.1(a) which provides:
Election of a tort option pursuant to section 8 of P.L.1972, c. 70 (C. 39:6A-8) shall be in writing and signed by the named insured on the coverage selection form required by section 17 of P.L.1983, c. 362 (C. 39:6A-23). The form shall state the percentage difference in the premium rates or the dollar savings between the two tort options. The tort option elected shall apply to the named insured and any immediate family member residing in the named insured's household. "Immediate family member" means the spouse of the named insured and any child of the named insured or spouse residing in the named insured's household, who is not a named insured under another automobile insurance policy. (Emphasis added.)
As Judge D'Annunzio noted with respect to a similar issue, "our duty is to construe and apply the statute as enacted." Ibarra v. Vetrano, 302 N.J. Super. 578, 581 (App. Div. 1997) (quoting In re Jamesburg High Sch. Closing, 83 N.J. 540, 548 (1980)).*fn3 As plaintiff was a member of her father's household, owned no vehicle and was not a named insured under another automobile policy, she was bound by her father's election. Moreover, particularly because driver's licenses cannot now be obtained until age eighteen, see State in Interest of D.J.F., 336 N.J. Super. 214, __ n.4 (App. Div. 2001), we also agree with Judge Yannotti that N.J.S.A. 39:6A-8.1 was not intended to apply only to minor children or to those who are still dependents.
By reference to statutory provisions outside Title 39, our dissenting colleague suggests that the Legislature has distinguished between a "child," referring to youth, and a "son" or "daughter" with respect to descendants of any age. The dissent therefore finds an ambiguity in N.J.S.A. 39:6A-8.1(a) with respect to the meaning of the word "child." Independent of the fact that the statute on its face is concerned with any child who lives with an insured, we are obligated to give the statute its plain or ordinary meaning, not to create an ambiguity because we dislike the impact of its improvisions. See, e.g., Burns v. Belafsky, 166 N.J. 466, 473 (2001); Merion v. Maglaki, 126 N.J. 430, 434-35 (1992). Moreover, we are presented with no legislative history, and independently have found none, to support the assertion that N.J.S.A. 39:6A-8.1(a) is limited to a minor child, to children who are still dependents, or to some children but not others. Ibid. And it is undisputed that plaintiff is entitled to PIP benefits under her father's policy irrespective of her age.
We further agree with Judge Yannotti's analysis on the motion for reconsideration that there is no unconstitutional discrimination against emancipated children who do not own cars and live with their parents. This is particularly so because they obtain coverage for P.I.P. benefits under N.J.S.A. 39:6A-4.
Plaintiff contends that, in this day and age, elderly parents frequently live with their middle-aged children and their children's spouses, and that adult children, who do not own a vehicle, should not be bound by the verbal threshold election of parents who live with them. There is no indication in this record, however, that plaintiff's father moved into her household after she already resided there. In fact, plaintiff does not deny being a member of his "household." We leave for resolution in the proper case whether, in other circumstances, an insured parent can be said to be living in the child's "household," as opposed to the child living "in the named insured's household," within the meaning of N.J.S.A. 39:6A-8.1, and if so, whether that makes a material difference.
The judgment is affirmed.