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Konopka v. Foster

October 31, 2002

TERESA KONOPKA AND VICTOR KONOPKA, PLAINTIFFS-APPELLANTS,
v.
FREDDIE L. FOSTER, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, L-4877-99.

Before Judges Havey, Wells and Payne.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 7, 2002

Plaintiff Teresa Konopka was allegedly injured in a motor vehicle accident that occurred on June 28, 1999 and thus after the effective date of the New Jersey Automobile Insurance Cost Reduction Act (AICRA), L. 1998, c. 21 and c. 22 (effective March 22, 1999). On December 9, 1999, she filed a complaint against the alleged tortfeasor, Freddie Foster, seeking damages for pain and suffering allegedly sustained in the accident. Foster's answer, which in relevant part merely asserted a blanket exemption from liability on the basis of the New Jersey Automobile Reparation Reform Act, was filed on March 8, 2000. Although plaintiff was subject to AICRA's limitation on lawsuit provisions (previously denominated the verbal threshold), she failed to comply with the physician certification requirements of N.J.S.A. 39:6A-8a, imposed on those subject to the statute's lawsuit limitations, until July 27, 2001, approximately sixteen months after defendant's answer was filed and more than two years after the motor vehicle accident had occurred.

AICRA requires, within sixty days of the filing of defendant's answer, that a plaintiff subject to its lawsuit limitation provisions provide the defendant with a physician's certification attesting to the fact that the plaintiff's injuries meet threshold statutory requirements. Only one sixty-day extension of the deadline is statutorily permitted, and then only for good cause. Therefore, at least by July 6, 2000, a date relatively early in the discovery period, defendant had legal and factual grounds to seek dismissal of plaintiff's suit. However, defendant did not move promptly. Rather, he deferred his motion for more than a year to August 14, 2001, after interrogatories had been answered, documents had been produced, plaintiff had given her deposition and submitted to an independent medical examination, an arbitration had occurred, and of even greater significance, the statute of limitations on plaintiff's claim had run. See N.J.S.A. 2A:14-2. The trial court granted defendant's motion, and, drawing upon precedent construing the affidavit of merit requirement applicable to professional negligence actions, *fn1 she dismissed plaintiff's claim with prejudice. See N.J.S.A. 2A:53A-29.

On appeal, plaintiff argued in her initial brief that the court's determination should be reversed as the result of her substantial compliance with statutory directives, or that a dismissal without prejudice should have been entered with sanctions imposed upon restoration in a manner similar to the treatment of defaults in discovery under Rule 4:23-5.

N.J.S.A. 39:6A-8a, which replaced New Jersey's prior verbal threshold, now provides that a person subject to the statute's limitation on lawsuit provisions can recover non-economic damages only upon proof that the injuries sustained have resulted in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment.

The statute also contains a physician certification requirement, which provides:

In order to satisfy the tort option provisions of this subsection, the plaintiff shall, within 60 days following the date of the answer to the complaint by the defendant, provide the defendant with a certification from the licensed treating physician or a board-certified licensed physician to whom the plaintiff was referred by the treating physician. The certification shall state, under penalty of perjury, that the plaintiff has sustained an injury described above. The certification shall be based on and refer to objective clinical evidence, which may include medical testing, except that any such testing shall be performed in accordance with medical protocols pursuant to subsection a. of section 4 of [N.J.S.A. 39:6A-4] and the use of valid diagnostic tests administered in accordance with [N.J.S.A. 39:6A-4.7]. Such testing may not be experimental in nature or dependent entirely upon subjective patient response. The court may grant no more than one additional period not to exceed 60 days to file the certification pursuant to this subsection upon a finding of good cause.

A person is guilty of a crime of the fourth degree if that person purposefully or knowingly makes, or causes to be made, a false, fictitious, fraudulent, or misleading statement of material fact in, or omits a material fact from, or causes a material fact to be omitted from, any certification filed pursuant to this subsection. . . . The statute provides further that fraudulent filing of a certification is grounds for imprisonment and license revocation. Ibid. "The certification is intended as an anti-fraud measure to assure legitimacy; it is necessary to state a claim, not sufficient to establish one . . . ." Conditional veto message of Governor Christine Todd Whitman (April 27, 1998).

We have recently held that, in contrast to the affidavit of merit statute, N.J.S.A. 2A:53A-27 to -29, which makes the affidavit an element essential to the establishment of a cause of action for professional negligence, AICRA's certification requirement "is procedural in nature" and is "related to the sufficiency of the pleadings, i.e. the statement of the claim." Watts v. Camaligan, 344 N.J. Super. 453, 467 (App. Div. 2001). It "is not intended to go to the establishment of a cause of action." Ibid. For that reason, in instances in which defendant seeks dismissal because the certification requirement has not been or cannot be timely met, the proper disposition is a dismissal without prejudice. Id. at 468.

The trial court did not have the benefit of Watts when it reached its determination to dismiss plaintiff's claim with prejudice, a result that we now find to have been in error. However, a transformation of the dismissal to one without prejudice offers plaintiff no particular benefit in this case because any reinstitution of suit is barred by the statute of limitations.

Plaintiff seeks to avoid this result by arguing that she substantially complied with the statute's requirements as the result of her timely service, within one month of the filing of defendant's answer, of a report by her treating chiropractor that established permanency and service of that chiropractor's certification, containing essentially the same information, fifteen months later on July 27, 2001. Plaintiff also notes service on March 8, 2001 of a report by her treating physician that also established permanency. We disagree. See e.g. Bernstein v. Board of Trust. Teachers' Pen. & Ann. Fund, 151 N.J. Super. 71, 76-77 (App. Div. 1977) (enumerating ...


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