On certification to the Superior Court, Appellate Division, whose opinion is reported at 357 N.J. Super. 398 (2003).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
The issue in this appeal is whether a plaintiff, who belatedly files a physician certification under the New Jersey Automobile Insurance Cost Reduction Act (AICRA), N.J.SA. 39:6A-1 to -34, must suffer the dismissal of his or her complaint or whether remedies short of dismissal will suffice.
On December 27, 1999, a pickup truck, in which Jenevieve Casinelli was a passenger, was struck in the rear by an automobile owned and operated by Wilfredo S. Manglapus. Casinelli was injured in the accident. On July 17, 2001, Casinelli filed a complaint against Manglapus alleging that she was injured as a result of his automobile negligence. Manglapus filed an answer on October 12, 2001, and on February 25, 2002, moved for summary judgment seeking dismissal of Casinelli's complaint, with prejudice, on the ground that she had failed to produce a physician certification establishing that she met the verbal threshold requirement contained in N.J.S.A. 39: 6A-8(a).
Casinelli failed to submit the required reports in certification form within 120 days of Manglapus' answer as required by AICRA. On March 20, 2002, however, in opposition to the summary judgment motion, Casinelli filed the requisite physician certifications. The trial court declined to dismiss Casinelli's complaint, finding good cause to extend the time within which to file the physician certification.
On appeal, Manglapus argued that Casinelli's complaint required dismissal with prejudice for failure to comply with N.J.S.A. 39: 6A-8(a), and that even if her complaint was dismissed without prejudice, the statute of limitations had expired, and thus, the refilling was prohibited. Casinelli countered that there is nothing in AICRA to suggest that the Legislature intended meritorious suits to be dismissed either with or without prejudice for the late filing of a physician certification. The Appellate Division rejected Manglapus' argument and held that a dismissal without prejudice is the proper remedy for late filing. However, recognizing the "harsh consequences" that would flow from the dismissal without prejudice remedy where the statute of limitations had expired, the court held that Casinelli could invoke the doctrines of substantial compliance and equitable estoppel. Accordingly, the Appellate Division affirmed the denial of summary judgment and remanded the case for proceedings consistent with its opinion.
HELD: The physician certification is neither a fundamental element of the New Jersey Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1 to -34, cause of action nor analogous to a pleading and therefore, neither dismissal with nor without prejudice is compelled. Rather, the late filing of the physician certification is akin to a discovery violation with respect to which the court may resort to any of a full panoply of remedies, ranging from an order to compel production through dismissal, depending on the facts.
1. AICRA is, as its name implies, a cost-containment initiative enacted as a refinement to the no-fault automobile insurance system that originally became law in this State in 1972. The legislative findings and declarations underlying AICRA are unequivocal; cost containment, fraud avoidance and a fair rate of return to insurers. Like its predecessor, the 1988 Verbal Threshold Act, AICRA allows purchasers of automobile insurance to choose between two options: a policy providing unrestricted recovery of non-economic damages with a concomitantly high premium or a policy with a "verbal threshold" limiting non-economic losses to certain categories of injury with a proportionately lower premium. The main difference between the AICRA threshold and prior law is that AICRA tightened the categories of injury that would justify non-economic damages. AICRA also requires the filing of a physician certification. The certification serves two purposes: to supply evidence that a plaintiff has, in fact, sustained an injury that qualifies for recovery of non-economic damages under the new verbal threshold and, to provide a legal foundation for a charge of perjury, should false swearing later be shown. (Pp. 8-11)
2. Manglapus argues that the Affidavit of Merit statute is an analogue to AICRA and that the belated filing of an AICRA physician certification warrants the same treatment; i.e., dismissal with prejudice "in all but extraordinary circumstances." Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218 (1998). We disagree. Unlike the Affidavit of Merit statute that pointedly equates failure to file the affidavit with "failure to state a cause of action," there is nothing in AICRA to suggest that the legislature intended that result. In our view, the perceived analogy between the AICRA physician certification and a pleading, which is the underpinning of the dismissal without prejudice remedy, does not withstand scrutiny. Although superficially seductive, that analogy only holds up in the narrow band of cases in which a plaintiff is unwilling or unable to produce a physician certification. However, in the vast majority of cases in which an attorney has simply slipped up and missed the filing date for an otherwise acceptab e physician certification, the analogy to a pleading breaks down. In such cases, there is no statutory bar to the continuation of the lawsuit. Rather, the physician certification is belatedly produced evidence supporting the otherwise cognizable claims advanced in the complaint. In such circumstances, we can see no warrant for adopting as mandatory the dismissal without prejudice remedy, instead viewing the tardy presentation as falling under the broad umbrella of failure to make discovery, thus subject to the arsenal of remedies provided in our rules for such procedural errors. By allowing courts the flexibility to accept belated physician certifications, under appropriate circumstances, both of the AICRA's aims are advanced; the meritorious cases of injured plaintiffs can go forward, and a certification, paving the way for a future perjury action in the case of false swearing, is on file. On the other hand, the remedy of dismissal with prejudice does nothing but guarantee the random elimination of meritorious cases and does not advance AICRA's goals. Unless the late filing is entirely faultless on the attorneys' part, however, some sanction should be imposed. (Pp. 11-18)
Insofar as the judgment of the Appellate division affirmed the denial of Manglapus' motion to dismiss Casinelli's complaint with prejudice, it is AFFIRMED. The Court's concomitant conclusion that a dismissal without prejudice is required is REVERSED. The case is REMANDED to the trial court for further proceedings consistent with its original disposition of the case.
JUSTICE LaVECCHIA filed a separate, dissenting opinion, stating that the failure to comply with the strict temporal requirements of AICRA's physician certification obligation should be treated as the equivalent of a failure to state a claim, and that the presumptive disposition is such a case should be a dismissal without prejudice, barring any other "impediment" such as a statute of limitations.
CHIEF JUSTICE PORITZ and JUSTICES ZAZZALI, ALBIN and WALLACE join in JUSTICE LONG's opinion. JUSTICE VERNIERO did not participate. JUSTICE LaVECCHIA filed a separate, dissenting opinion.
The opinion of the court was delivered by: Justice Long
The question presented on this appeal is whether a plaintiff, who belatedly files a physician certification under the New Jersey Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1 to -34, must suffer the dismissal of his or her complaint or whether remedies short of dismissal will suffice. We hold that the physician certification is neither a fundamental element of the AICRA cause of action nor analogous to a pleading and therefore, that neither dismissal with nor without prejudice is compelled. Rather, we view the late filing of the physician certification as akin to a discovery violation, with respect to which the court may resort to any of a full panoply of remedies, ranging from an order to compel production through dismissal, depending on the facts.
On December 27, 1999, a pickup truck, in which Jenevieve Casinelli was a passenger, was struck in the rear by an automobile owned and operated by Wilfredo S. Manglapus. Casinelli was injured in the accident. She was examined by Dr. James Garabo, a chiropractor, who sent her to the emergency room at Rahway Hospital where she was prescribed a cervical collar and over-the-counter pain medication, and advised to see a neurologist. The cervical x-ray taken at the hospital disclosed "[l]oss of normal lordosis*fn1 with mild kyphosis*fn2 [backward curvature of the spine] centered on C4-5."
On December 29, 1999, Casinelli was examined by Dr. Nazar H. Haidri, a neurologist, who diagnosed post-concussion syndrome; post-traumatic headaches; acute cervical, dorsal and lumbar sprain; and symptoms consistent with bilateral lumbar radiculopathy.*fn3 Dr. Haidri also observed a limited range of motion in both the cervical and lumbar areas of Casinelli's spine and spasms "over both cervical para-vertebral muscles." Dr. Haidri noted that Casinelli had been involved in a prior motor vehicle accident in which she had injured her neck and back and determined that the earlier injuries were "markedly aggravated by the accident of December 27, 1999."
Based upon his examination, Dr. Haidri ordered several Magnetic Resonance Imagery (MRI) studies that were read by Dr. Howard Kessler, a radiologist. Dr Kessler issued two reports on February 16, 2000, in which he concluded that the cervical MRI disclosed "[r]eversed cervical lordosis consistent with muscular spasm ... [d]isc herniation at C5-C6, central and left paracentral with sac indentation." As a result, Dr. Haidri referred Casinelli to Dr. Steven L. Nehmer, an orthopedic surgeon, who examined her on May 11, 2000.
In a report dated May 16, 2000, Dr. Nehmer recommended that Casinelli undergo either a cervical epidural injection or physical therapy. In a subsequent report dated September 29, 2000, Dr. Nehmer diagnosed Casinelli as suffering from a cervical disc herniation at C5-6 along with lumbar strain.
Because a cervical MRI taken after Casinelli's 1998 injury had not revealed any disc herniation, Dr. Nehmer opined that Casinelli's injuries were causally related to the accident with Manglapus. Overall, Dr. Nehmer viewed Casinelli's prognosis as "guarded."
On July 17, 2000, Dr. Charles G. Kalko, a neurosurgeon, examined Casinelli and issued a report diagnosing her as having suffered cervical radiculopathy and cervical deformity at C5-C6, as a result of the accident. He recommended that Casinelli "start physical therapy and consider obtaining a cervical CT myelogram and then consider surgical intervention." Dr. Kalko also concluded that Casinelli's injuries were causally related to the accident, and declared her prognosis "guarded pending further diagnostic testing and surgery."
On July 25, 2000, Casinelli was referred to Dr. Paul K. Ratzker, a neurosurgeon, for treatment. In a report dated July 25, 2000, Dr. Ratzker diagnosed Casinelli as suffering from "left sided C6 cervical radiculopathy secondary to the disc herniation at the C 5-6 level." He prescribed pain medication and a course of physiotherapy.
After Casinelli completed a three-week course of physical therapy, Dr. Ratzker reevaluated her and reported she was feeling better, but still experiencing "occasional spurts of pain." He recommended that she either try a cervical epidural steroid injection or continue with the physical therapy and pain medication. Casinelli elected to continue with the physical therapy and returned for an examination by Dr. Ratzker on September 14, 2000, at which point she reported that she was feeling better, but had begun experiencing numbness in a small area in her forearm. Overall, Dr. Ratzker found Casinelli had experienced improvement with physical therapy and recommended a continued course of therapy twice a week for six more weeks and a reevaluation thereafter. He assessed her prognosis as "fair."
On July 17, 2001, Casinelli filed a complaint against Manglapus alleging that she was injured as a result of his automobile negligence. Manglapus filed an answer on October 12, 2001, and on February 25, 2002, moved for summary judgment seeking dismissal of Casinelli's complaint, with prejudice, on the ground that she had failed to produce a physician certification establishing that she met the verbal threshold requirement contained in N.J.S.A. 39:6A-8(a). In response to the motion, Casinelli submitted a report by Dr. Haidri that stated that her post-traumatic tinnitus, blurred vision, chronic cervical, dorsal and lumbar sprain, and disc herniation at C5- C6, were causally related to injuries sustained during the December 27, 1999, accident. Attached to that report was a report of Dr. Nehmer, dated May 16, 2000, supporting Dr. Haidri's conclusions. However, Casinelli did not file those reports in certification form within 120 days of Manglapus' answer as required by AICRA.
On March 20, 2002, in opposition to the summary judgment motion, Casinelli filed the requisite physician certifications. Two medical experts (Drs. Haidri and Ratzker) certified that Casinelli sustained a "permanent and significant injury" as a result of the December 27, 1999, accident, based upon continuing symptoms present after the accident, including a permanent disruption of her intervertebral disc. In addition to those certifications, Casinelli submitted her own certification outlining her injuries, course of treatment, and her then current complaints of pain and physical ...