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Kennelly-Murray v. Megill

November 17, 2005

PATRICIA KENNELLY-MURRAY AND RICHARD MURRAY, PLAINTIFFS-APPELLANTS,
v.
EDWARD C. MEGILL, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. MON-L-700-03.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 24, 2005

Before Judges Alley, C.S. Fisher and Yannotti.*fn1

In this verbal threshold matter, we hold, among other things, that by narrowing one of the bodily injury categories contained in the Automobile Insurance Cost Reduction Act of 1988 (AICRA), N.J.S.A. 39:6A-8 -- that is, by replacing the pre-existing "fractures" category with a "displaced fractures" category -- the Legislature did not intend to bar claims based upon only "non-displaced fractures." Instead, we conclude that the Legislature intended to relegate such a claim to AICRA's catch-all category that requires proof of "a permanent injury within a reasonable degree of medical probability." As a result, we reverse in part the summary judgment entered in defendant's favor.

Plaintiff Patricia Kennelly-Murray (plaintiff), and her husband,*fn2 filed a complaint seeking personal injury damages resulting from a January 18, 2002 auto accident allegedly caused by defendant. Specifically, plaintiff asserted that she suffered non-displaced fractures of eight ribs, her sternum, and the tibial plateau of her left leg. Plaintiff also claimed that the auto accident caused a laceration to her nose that would not heal; upon further examination, a basal cell carcinoma was there located and later surgically removed, leaving what plaintiff claims to be a significant and disfiguring scar.

In moving for summary judgment, defendant asserted that plaintiff's proofs failed to meet the requirements of AICRA's verbal threshold. In this regard, defendant chiefly relied upon James v. Torres, 354 N.J. Super. 586 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003), which held that Oswin's*fn3 serious impact prong was subsumed within AICRA. The judge -- as then obligated -- followed James and determined, in considering the serious impact proofs, that plaintiff had submitted a sham certification, which he chose not to consider. The judge also found, as a matter of law, that the auto accident was not the proximate cause of the scar on plaintiff's nose.

Plaintiff appealed, arguing that (1) the judge erred by applying Oswin's serious impact test, as well as the "sham affidavit doctrine," in granting summary judgment, (2) there was a genuine dispute about whether the accident caused the nose scar, and (3) non-displaced fractures are sufficient to vault the verbal threshold when it can be shown that such injuries are permanent.

I.

In her appeal, plaintiff argues that the judge's determination that the proofs did not suggest a serious impact upon her life was irrelevant. Plaintiff's contention is correct since, during the pendency of this appeal, the Supreme Court overruled our holding in James. See DiProspero v. Penn, 183 N.J. 477, 506 (2005); Serrano v. Serrano, 183 N.J. 508, 509 (2005). As a result, it might appear that our further consideration of the judge's ruling on the serious impact prong has been rendered unnecessary. However, plaintiff seeks a ruling regarding the application of the sham affidavit doctrine because of her concern for its potential impact on her credibility at trial. We agree that the point warrants some further discussion.

In Shelcusky v. Garjulio, 172 N.J. 185, 201 (2002), the Supreme Court endorsed the sham affidavit doctrine so long as the judge "perform[s] an evaluative function that is consistent with" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995). That is, the doctrine is not to be applied mechanically when a conflict appears between what has been presented in opposition to summary judgment and what was stated at an earlier deposition. In analyzing the sham affidavit doctrine's parameters, the Court admonished judges not to reject what is alleged to be a sham affidavit "where the contradiction is reasonably explained, where an affidavit does not contradict patently and sharply the earlier deposition testimony, or where confusion or lack of clarity existed at the time of the deposition questioning and the affidavit reasonably clarifies the affiant's earlier statement." Shelcusky, supra, 172 N.J. at 201-02.

Prior to the filing of his motion for summary judgment, defense counsel deposed plaintiff and asked about her present physical complaints. Plaintiff testified that her chest ached once or twice a day, prompting defense counsel to ask whether that occasional pain "prevent[ed] [her] from doing any activities that [she] used to do." Plaintiff said, "No." Upon further questioning, plaintiff revealed that her left knee continued to ache. Counsel asked whether this aching prevented her from performing any of her prior activities, and plaintiff said, "No." Following this, a more generic question was posed and answer given:

Q: . . . Are there any activities that you can no longer perform that you used to perform prior to the accident because of the ...


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