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Montemayor v. Signorelli

April 19, 2001


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.


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 ...

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