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April 28, 2004.

ROCCO BRANCA, et al. Plaintiff,
JAMES MATTHEWS, et al Defendants

The opinion of the court was delivered by: STANLEY BROTMAN, Senior District Judge


In this motor vehicle accident suit, Plaintiff Rocco Branca seeks recovery for non-economic losses as provided under the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. § 39:6A-8(a). This matter comes before the Court on Defendant James Matthews' motion for summary judgment. The Court has diversity jurisdiction pursuant to 28 U.S.C. § 332(a). Defendant moves for summary judgment arguing that Plaintiff's soft-tissue injuries are not serious enough to qualify for relief under AICRA's "Limitation on Lawsuit" option, which governs Plaintiff's automotive insurance policy. Plaintiff resists summary judgment, arguing that his soft-tissue injuries are not per se barred from coverage, leaving a genuine issue of material fact as to the permanent and serious nature of Plaintiff's injuries, and precluding a grant of summary judgment. For the reasons set forth below, the Court will grant Defendant's motion for summary judgment.


  On June 23, 2002 Plaintiff Rocco Branca, (hereafter "Plaintiff," or "Branca") was involved in a motor vehicle accident at the intersection of Troth Road and Route 70 located in Evesham Township, New Jersey. (Def.'s Brief in Supp. of Mot. for S.J., Police Report at Exh. A). The accident occurred when Plaintiff's vehicle, which had been stopped in traffic, was suddenly struck by a vehicle operated by Defendant, Deborah Smith, (hereafter "Defendant," or "Smith"). Smith first collided with Defendant James Matthews, (hereafter "Defendant" or "Matthews") when he entered the intersection. The collision between Smith and Matthews forced Smith's vehicle into Branca's driver's side door.

  Branca did not seek treatment at the hospital directly after the accident but was evaluated the following day by Dr. Milton Soiferman, D.O. (Def.'s Brief in Supp. of S.J. Mot., Soiferman's evaluation letter at Exh. B). During his medical evaluation, Plaintiff complained of "pains in his neck and shoulder areas and lower back areas." (Id.) Dr. Soiferman diagnosed plaintiff as suffering from strains and sprains of the trapezious, rhombiodeus, latissimus and of the cervical, dorsal, and lumbar spine, along with myofasciitis for which he prescribed "analgesics, muscle relaxers, anti-inflammatory medications, osteopathic manipulative therapy, myofacial soft tissue release techniques . . . heat modalities, and an exercise program." (Id.). Branca continued treatment until January 27, 2003 when he was discharged from Dr. Soiferman's care. Dr. Soiferman concluded that discharge was appropriate because, although Plaintiff still suffered soreness and muscle spasm, Branca had "reached maximum medical benefit from . . . care" and treatment was no longer necessary. (Id.) Prior to his discharge, Branca underwent a computerized range of motion study of the cervical, thoracic, and lumbosacral spine, which established that he suffered a 6%, 4% and 7% loss of function respectively. (Id.).

  On March 28, 2003 Plaintiff filed a complaint seeking damages in the amount of $150,000 for his injuries, which Plaintiff alleges are permanent and have prevented him from participating in his usual activities and carrying out his usual duties. (Pl.'s Complaint at ¶ 6). Defendant Matthews filed this motion for summary judgment on October 22, 2003.


  The standard for granting a motion for summary judgment is a stringent one, but it is not insurmountable. Fed.R.Civ.P. 56 provides that summary judgment may be granted only when materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Serbin v. Bora Corp., 96 F.3d 66, 69 n.2 (3d Cir. 1996). In deciding whether there is a disputed issue of material fact, the court must grant all reasonable inferences from the evidence to the non-moving party. The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

  Supreme Court decisions mandate that a summary judgment motion must be granted unless the party opposing the motion "provides evidence `such that a reasonable jury could return a verdict for the nonmoving party.'" Lawrence v. National Westminster Bank New Jersey, 98 F.3d 61, 65 (3d Cir. 1996) (quoting Anderson, 477 U.S. at 248). Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party must "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Serbin, 96 F.3d at 69 n.2 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); see also Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991) (declaring that non-movant may not "rest upon mere allegations, general denials, or . . . vague statements"). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50. III. DISCUSSION

  Defendant James Matthews moves for summary judgment arguing that Plaintiff Rocco Branca's injuries are not serious enough to qualify for relief under the "Limitations on Lawsuit" provision provided in the New Jersey Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. § 39:6A-8(a). Defendant further argues that Plaintiff has failed to establish a causal nexus between the accident and Plaintiff's current injuries. Defendant specifically contends that Plaintiff's physician, in his certifying statement, failed to discuss Plaintiff's pre-accident physical condition or any existing injuries. Plaintiff, on the other hand, argues that the existence of genuine issues of material fact as to the seriousness and permanent nature of his injuries precludes a grant of summery judgment.

  New Jersey's no-fault and verbal threshold statutory scheme has followed a tortured evolution in the State's efforts to reconcile the need for affordable insurance with the need to provide adequate compensation to tort victims, and deserves a brief recitation to provide context for this case. New Jersey enacted its first no-fault insurance statute, the New Jersey Automobile Reparation Reform Act, in 1972 with the goal of "compensating a larger class of citizens than the traditional tort-based system." Oswin v. Shaw, 129 N.J. 290, 295 (1992) (citations omitted). A no-fault insurance system is one in which "a person injured in an automobile accident is compensated for those injuries without regard to fault." Id. Inherent in such a system is the need to place limits on tort-based personal injury suits. Id. Thus, under the original 1972 legislation, an insured had a right to sue only when he or she "sustained death, permanent disability, permanent significant disfigurement, permanent loss of any bodily function or loss of a body member in whole or in part," or "bodily injury . . . confined solely to the soft tissue of the body" resulting in medical expenses in excess of a $200 threshold." Id. (citations omitted). Soft-tissue injuries were defined as "injuries in the form of sprains, strains, contusions, lacerations, bruises, hematomas, cuts, abrasions, scrapes, scratches, and tears confined to the muscles, tendons, ligaments, cartilages, nerves, fibers, veins, arteries and skin of the human body." Id. (citations omitted).

  As might be expected, auto insurance coverage not premised on fault, which offered so few limitations on lawsuits, and covered so wide an expanse of physical ailments, contributed to a steady increase in insurance premiums. See generally Marisa L. Ferraro, New Jersey and the Verbal Threshold: Imperfect Together, 54 Rutgers L. Rev. 707 (2002). Consequently, since the passage of the first no-fault insurance act, the New Jersey Legislature has made several attempts to control the costs associated with providing no-fault insurance. The first attempt came with the 1988 adoption of the "verbal threshold" policy option. Id. Under that legislation, an insured, choosing between two coverage options, could elect either the verbal threshold (a threshold defined by words rather than a dollar amount), which limited the right to sue for non-economic losses only if the injury fit into one of nine categories, or the traditional tort option, which allowed unrestricted recovery for non-economic damages. New Jersey Coalition of Health Care Professionals v. New Jersey Dept. of Banking and Insurance, 323 N.J. Super. 207, 217 (App. Div. 1999). The nine categories of injury under the verbal threshold included: 1.) death; 2.) dismemberment; 3.) significant disfigurement; 4.) a fracture; 5.) loss of a fetus; 6.) permanent loss of use of a 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;9.) a medically determined injury. See N.J.S.A. § 39A:6A-35.

  Although the new law attempted to restrict law suits, its "permanent," "consequential," and "significant" language generated considerable debate and confusion. Thomas P. Weidner & Michael J. Canavan, The New Verbal Threshold, But is it Improved?, 24 Seton Hall Legis. J. 117, 121 (1999). The New Jersey Supreme Court attempted to resolve the confusion in Oswin v. Shaw. In that case, the New Jersey Supreme Court denied relief to a plaintiff who suffered soft-tissue injuries, but rejected an approach that would either "automatically vault all soft-tissue injuries over the verbal threshold," or one that would bar such injuries from recovery as a matter of course, opting instead for an inquiry that based relief on the seriousness of the injury. Oswin, 129 N.J. at 319. Thus, under Oswin, in order to pierce the verbal threshold, a plaintiff must first "submit objective, credible evidence" of a serious injury. Id. at 315. This prong can be supported by medical testing and valid diagnostic tests conducted in accordance with the approved protocols." Jacques v. Kinsey, 347 N.J. Super. 112, 118 (Law Div. 2001).

  Although the exact scope of medical analysis required depends on "the nature of the disability or impairment," range-of-motion tests alone will not satisfy the standard required to meet the verbal threshold. Oswin, 129 N.J. 290; Colon v. Coordinated Transport, Inc., 141 N.J. 1, 10 (1995) ("ordinarily a diminution in range of motion alone will not satisfy the `demonstrable objective medical evidence' standard required to support an award of partial-permanent disability"); Polk v. Daconceicao, 268 N.J. Super. 568, 573 (App. Div. 1993) ("measurements of limitation of motion alone are insufficient to overcome the verbal threshold"). Neither will a plaintiff's subjective complaints substantiate the seriousness requirement. Oswin, 129 N.J. at 314; Colon, 141 N.J. at 9 (a ...

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