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Fowler v. Crystal Motors

June 11, 2001


On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3188-98.

Before Judges King,*fn1 Coburn and Lefelt.

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


Argued May 9, 2001

The Legislature amended the verbal threshold statute in 1998 to modify significantly the limitation on the right to sue for non-economic damages. L. 1998 c. 21, § 11. This appeal is controlled by the pre-existing 1988 statute's definition of the verbal threshold and presents two issues. The first is whether plaintiff Caline Fowler presented sufficient evidence of a rib fracture under the 1988 formulation of the verbal threshold statute, N.J.S.A. 39:6A-8, to withstand defendant's summary judgment motion. The second assumes that plaintiff has suffered a rib fracture and asks whether plaintiff must nevertheless demonstrate that the injury has had a serious impact on plaintiff and her life in order to surmount the verbal threshold and sue for pain and suffering. The motion judge answered the first question in the negative, the second question in the affirmative, and dismissed plaintiff's complaint. We disagree with the motion judge's answers to both questions and reverse and remand.

Plaintiff was involved in two accidents within six months of each other. The first occurred on January 20, 1997, when plaintiff fell on the premises of defendant Crystal Motors, Inc. The second occurred on July 4, 1997, when plaintiff was involved in an automobile accident with defendant Margarita Sierra. When plaintiff fell, she allegedly sustained lumbosacral strain and sciatica. It was the automobile collision in July 1997, however, that plaintiff asserts fractured her rib.

New Jersey subscribed to no-fault insurance legislation with the hope of "compensating a larger class of citizens than the traditional tort-based system and doing so with greater efficiency and at a lower cost." Emmer v. Merin, 233 N.J. Super. 568, 572 (App. Div.)(citing Mario A. Iavicoli, No Fault & Comparative Negligence in New Jersey 20 (1973)), certif. denied, 118 N.J. 181 (1989). As part of the no-fault legislation, the Legislature eventually adopted in 1988 a verbal threshold to eliminate non-economic damage claims for some soft tissue injuries. L. 1988, c. 119, § 6, eff. January 1, 1989. These injuries, that often could not be determined objectively, had been frequently diagnosed solely from plaintiffs' subjective complaints. The Legislature, in passing the verbal threshold, hoped to bring down automobile insurance costs by permitting law suits only for those soft tissue injuries that were serious. Oswin v. Shaw, 129 N.J. 290, 295-97 (1992).

Therefore, under the 1988 system, in exchange for lower insurance rates, plaintiffs could purchase an automobile insurance policy with a verbal threshold. The 1988 verbal threshold, N.J.S.A. 39:6A-8a, provides that plaintiffs may not sue for non-economic damages, such as pain and suffering, unless the personal injury suffered by plaintiff can be categorized as, at least one, of the following injury types: (1) death; (2) dismemberment; (3) significant disfigurement; (4) fracture; (5) loss of fetus; (6) permanent loss of use of body organ, member, function or system; (7) permanent consequential limitation of use of a body organ or member; (8) significant limitation of use of a body function or system; or (9) a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute that person's usual and customary daily activities for not less than 90 days during the 180 immediately following the occurrence of the injury or impairment. Ibid.

The leading Supreme Court decision construed the 1988 statute in the context of a soft tissue injury and developed a two prong test that plaintiffs must satisfy to surmount the verbal threshold. Oswin, supra, 129 N.J. at 314. To withstand summary judgment, the first prong requires that plaintiffs must show a material factual dispute by credible, objective medical evidence that their injuries fall within one of the nine statutory categories. Ibid. The second prong requires that plaintiff establish that the injury has had a serious impact on his or her life. We will discuss the second prong in greater detail later.


In an effort to establish her rib fracture by objective medical evidence, under Oswin's first prong, plaintiff presented the following pertinent evidence. After her automobile accident, plaintiff was seen in the Muhlenberg Hospital emergency room by Dr. Rivera. The doctor includes as "Diagnostics: CXR: L 3rd RIB FX no pneumo no infilt scapula normal." Dr. Rivera also wrote an instruction to provide discharge instructions on rib fractures. Plaintiff was provided with instructions noting that "[y]our exam shows that you have one or more fractured ribs." Nevertheless, the formal reading of the chest x-ray contains no mention of any rib pathology. It states: "A single, frontal, AP projection is submitted of the chest. The heart is upper-normal in size. The lungs are clear." The report also indicated that "There is no active disease noted in the chest." A further x-ray of the left scapula notes: "Examination is performed of the left scapula. No osseous or articular abnormalities are seen. If warranted, specific rib views should be considered."

Plaintiff also visited the office of Somerset Orthopedic Associates and was examined by Dr. Nordstrom who noted: "We have a copy of her records from Muhlenberg Hospital. They x-rayed her ribs and she has a left rib fracture in the posterior axillary line on the 3rd level. They x-rayed her shoulder with a good transscapular view and I see no evidence of dislocation or fracture. Scapula appears Okay." Dr. Nordstrom's impression of plaintiff's injury included "fractured rib 3rd on the left."

Defendant argues that most significantly, the formal radiological report failed to note any rib fracture. Furthermore, defendant argues that Dr. Nordstrom's diagnosis was not clearly based upon any independent review of the x-ray films. According to defendant and the motion judge, plaintiff's evidence was insufficient to establish by objective medical evidence that her injuries fell within the fracture category of N.J.S.A. 39:6A- 8a, and she thus failed to meet the first prong of Oswin, supra, 129 N.J. at 318.

Because plaintiff appeals from summary judgment dismissing her complaint, we must view the evidence in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Viewing the evidence from plaintiff's perspective, there was evidence in Dr. Nordstrom's report to infer that he was reviewing the actual x-ray films, rather than any reports, when he diagnosed the fracture. He spoke of seeing "no evidence of dislocation or fracture" of her shoulder. Furthermore, nowhere in the written records from Muhlenberg is there any reference to the left rib ...

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