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DiProspero v. Penn

June 14, 2005

CHRISTINA DIPROSPERO, PLAINTIFF-APPELLANT,
v.
BARBARA J. PENN AND MARTHA M. TURNER DEFENDANTS-RESPONDENTS, AND JOHN DOE(S), JOINTLY, SEVERALLY AND/OR IN THE ALTERNATIVE, DEFENDANT.



On appeal from the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(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).

[NOTE: This is a companion case to Serrano v. Serrano, et al., also decided today.]

The Automobile Insurance Cost Reduction Act (AICRA) provides policyholders with the choice of lower premium payments in exchange for limiting their right to sue for non-economic damages. That option, the "limitation on lawsuit" threshold, restricts an accident victim covered by the policy from suing for non-economic damages unless the victim suffers a bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury other than scarring or disfigurement. The "verbal" threshold, the predecessor to the limitation on lawsuit threshold, required the accident victim to prove that her injury satisfied one of nine statutory categories in order to qualify for recovery of non-economic damages. In Oswin v. Shaw, (Oswin), the New Jersey Supreme Court concluded that under the verbal threshold, in addition to proving that her injury fit within one of the nine categories, the victim had to prove that she suffered a serious life impact. AICRA's limitation on lawsuit threshold does not contain language requiring that an accident victim prove that the injury caused a serious life impact. This appeal addresses whether Oswin's serious life impact standard applies to AICRA's limitation on lawsuit threshold.

On November 30, 1999, at the Route 73 traffic circle in Berlin, Barbara Penn failed to observe a "yield" sign and crashed into a car operated by plaintiff Christina DiProspero. As a result of the accident, the twenty-one-year-old DiProspero developed back and neck pain. DiProspero received chiropractic and medical treatment for two years until her insurance carrier stopped paying for the visits.

DiProspero filed a lawsuit seeking damages for, among other things, pain and suffering. DiProspero was covered by a no fault insurance policy subject to the limitation on lawsuit threshold under N.J.S.A. 39:6A-8(a). DiProspero claimed that she suffered permanent injuries. As required by the statute, DiProspero submitted certifications by her doctors attesting to the permanency of her injuries The trial court granted defendants' motion for summary judgment on the ground that there was no evidence that DiProspero's injuries had a serious impact on her life. With one judge dissenting, the Appellate Division affirmed the grant of summary judgment.

DiProspero appealed as of right to this Court.

HELD: The plain language of N.J.S.A. 39:6A-8(a) does not contain a serious life impact standard. Nothing in AICRA's preamble, its legislative history, or its policy objectives suggests that the Legislature intended this Court to write in that standard. The Appellate Division judgment is reversed and the matter is remanded for proceedings consistent with this opinion.

1. The issue before us is whether the Legislature intended the Oswin "serious life impact" test to apply to AICRA's limitation on lawsuit threshold. We must look to the Legislature's intent in fashioning AICRA's limitation on lawsuit threshold. (pp. 17-19)

2. Our analysis begins with the plain language of the statute. The language of the limitation on lawsuit threshold requires a plaintiff to prove that the defendant caused a bodily injury which results 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. In this case, DiProspero has alleged a permanent injury. The statutory language places no burden on plaintiff other than to prove that the injury meets one of the threshold categories. Given the unique historical background of AICRA and the prior judicial construction of a predecessor statute -- the 1988 verbal threshold, we will also examine relevant canons of statutory construction, AICRA's preamble, the Sponsors' Statement to the bill, the Governor's conditional veto of AICRA, and the policy considerations undergirding the legislation to see whether they point to an interpretation different from the clear language of the statute. (pp. 20-22)

3. The Legislature's explicit incorporation of one of Oswin's holdings (the objective medical evidence standard) into AICRA strongly implies that it consciously chose not to incorporate another of Oswin's holdings (the serious life impact standard). (p. 24)

4. A court may turn to a statute's preamble as an aid in determining legislative intent. We find that the preamble's language, which speaks in the disjunctive of non-serious or non-permanent injuries, is merely descriptive of the six statutorily defined threshold categories. We cannot find a suggestion in the statute or its history that the Legislature did not regard the threshold injuries to be serious injuries. The logical conclusion is that the Legislature created those threshold categories for the purposes of denominating six classes of serious injuries. We cannot conclude that the Legislature excluded the Oswin serious life impact standard from the limitation on lawsuit threshold with the intention of inserting it through an oblique reference in the preamble. (pp. 25-28)

5. The Sponsor's Statement sheds no light on this issue. The Sponsor's Statement is a useful interpretative aid only if it assists in understanding the Legislature's intent. We cannot discern the Legislature's intent from the Sponsors' Statement or conclude that the Legislature intended to adopt the Oswin standard through statutory silence. (pp. 29-35)

6. A Governor's conditional veto of a bill may be considered in determining legislative intent, and may be strong evidence of that intent when the veto directly affects that part of the legislation to be construed. The Governor's commentary suggests that she considered both permanent injuries and displaced fractures to be serious injuries under the new, improved threshold. The Governor referred to Oswin in her message, but only to make an unrelated point concerning Florida law. The Governor's awareness of Oswin, and her failure to reference the serious life impact test strongly imply that she did not expect that Oswin's extra-statutory standard would apply to AICRA. The Governor's conditional veto does not indicate in any way that the serious life impact standard survived the passage of AICRA. (pp. 35-37)

7. We address the argument that the Legislature must have intended to retain the serious life impact standard because one of AICRA's paramount goals was to reduce the cost of automobile insurance. We disagree with that narrow assessment of the limitation on lawsuit threshold in relation to the legislative goals in AICRA. AICRA is a detailed and comprehensive statute that seeks to contain costs in multiple ways. The new limitation on lawsuit threshold was but one means of stabilizing and reducing costs. The Legislature chose to effectuate cost-cutting savings by placing specific restrictions on the right to sue. Those restrictions are set forth in the statutory language of the new threshold. (pp. 38-39)

8. The plain language of N.J.S.A. 39:6A-8(a) does not contain a serious life impact standard. Nothing in AICRA's preamble, its legislative history, or its policy objectives suggests that the Legislature intended this Court to write in that standard. We will not torture the legislative history in this case to create an ambiguity in an otherwise clear statute. (pp. 40-41)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED.

JUSTICE RIVERA-SOTO filed a separate CONCURRING opinion.If the Legislature intended that AICRA include Oswin's serious life impact requirement, it can amend N.J.S.A. 39:6A:8; if the Legislature did not intend to transplant Oswin into AICRA, our decision today implements that legislative mandate; in either event, the issue now lies where it properly belongs: before the Legislature.

CHIEF JUSTICE PORITZ and JUSTICES LONG, ZAZZALI and WALLACE join in JUSTICE ALBIN's opinion. JUSTICE RIVERA-SOTO filed a separate concurring opinion. JUSTICE LaVECCHIA did not participate.

The opinion of the court was delivered by: Justice Albin

Argued November 29, 2004

The 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to --35, provides automobile insurance policyholders with a choice: lower premium payments in exchange for limiting their right (and the right of those covered by the policy) to sue for non-economic damages if injured in an accident.*fn1 That option, known as the "limitation on lawsuit" threshold, restricts an accident victim covered by the policy from suing a defendant for non-economic damages unless she suffers "a bodily injury which results 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." N.J.S.A. 39:6A-8(a).

The 1988 verbal threshold, the predecessor to the limitation on lawsuit threshold, required the accident victim to prove that her injury satisfied at least one of nine statutory categories in order to qualify for recovery of non-economic damages. L. 1988, c. 119, § 6. In Oswin v. Shaw, we concluded that under the verbal threshold, in addition to proving that her injury fit within one of the applicable statutory categories, the accident victim had to prove that she suffered a serious life impact. 129 N.J. 290, 318 (1992). AICRA's limitation on lawsuit threshold, which is significantly different from the verbal threshold, has only six categories and does not contain language requiring that an accident victim prove that the injury caused a serious life impact.

In this appeal, we must decide whether Oswin's serious life impact standard applies to AICRA's limitation on lawsuit threshold. The plain language of the statute, a comparative analysis of the old and new lawsuit thresholds, and a survey of AICRA's legislative history persuade us that the Legislature did not intend to engraft the Oswin language onto the limitation on lawsuit threshold. We conclude that an automobile accident victim who is subject to the threshold and sues for non-economic damages has to satisfy only one of AICRA's six threshold categories and does not have the additional requirement of proving a serious life impact.

I.

The trial court granted, and the Appellate Division affirmed, defendant's motion for summary judgment. Accordingly, we review the facts in the light most favorable to plaintiff.

R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

On November 30, 1999, defendant Barbara Penn was driving a pickup truck owned by defendant Martha Turner. At the Route 73 traffic circle in the Borough of Berlin, Penn failed to observe a "yield" sign and crashed into a car operated by plaintiff Christina DiProspero. As a result of the accident, the twenty-one-year-old plaintiff developed back and neck pain. Six days later, plaintiff visited her family physician, Dr. Harris Twersky, who prescribed a treatment plan of stretching and exercise. Plaintiff followed the plan for four months, but her back pain grew progressively worse, and she began to suffer from jaw pain and headaches.

In April 2000, plaintiff consulted with Dr. Steven Scafidi, a chiropractor, who recorded plaintiff's complaints of jaw grinding and of neck, shoulder, and mid-and lower-back pain.

Dr. Scafidi x-rayed plaintiff and diagnosed her as having "a TMJ*fn2 dysfunction" and "a strain/sprain injury that is accompanied by ligamentous instability, myofascitis*fn3 and localized evidence of nerve root irritation." Plaintiff also underwent magnetic resonance imaging (MRI) scans of her cervical, lumbar, and thoracic spinal areas at MRImaging of South Jersey in Marlton. According to Dr. Scafidi, those scans showed that plaintiff's "discs seem[ed] to be bulging" in all three spinal areas.*fn4

Plaintiff received chiropractic treatment for two years, two to three times each week, until her insurance carrier stopped paying for the visits.

Dr. Scafidi recommended that plaintiff see a TMJ specialist to treat her jaw pain. In 2000, plaintiff met with Dr. Melvyn Blake, D.D.S., who noted pain, tenderness, spasm, and clicking noises in her jaw. Dr. Blake prescribed an intra-oral splint and a treatment regimen, which continued for two years until plaintiff's insurance carrier declined to pay for additional visits.

After the accident, plaintiff's lifestyle changed considerably. She had difficulty chewing hard foods and had to reduce her vigorous three-day-a-week regimen at the gym to light workouts three times a month. She suffered soreness in her back and neck when exercising and endured pain while sitting in her college classes. Her injuries, however, were not so debilitating that she could not take road trips or help around the house with laundry and dishes.

Plaintiff filed a negligence lawsuit against defendants, seeking damages for, among other things, pain and suffering. Plaintiff was covered by a no fault insurance policy subject to the limitation on lawsuit threshold under N.J.S.A. 39:6A-8(a). Plaintiff claimed that she suffered permanent injuries to body parts that "ha[d] not healed to function normally and will not heal to function normally with further medical treatment."

N.J.S.A. 39:6A-8(a). As required by N.J.S.A. 39:6A-8(a), plaintiff submitted certifications by Dr. Scafidi and Dr. Blake attesting to the permanency of the injuries to her cervical, thoracic, and lumbar spine, and her temporomandibular joint. Both doctors certified that those injuries were proximately caused by the automobile accident.

After the completion of discovery, defendants moved for summary judgment on the ground that there was no evidence that plaintiff's injuries had a serious impact on her life and, therefore, her suit was barred by the limitation on lawsuit ...


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