On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. ESX-L-9718-02.
The opinion of the court was delivered by: Yannotti, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker, C. S. Fisher and Yannotti.
Defendants David P. Suther and Theresa Suther appeal from a judgment entered following a jury trial, awarding damages to plaintiff Halina Jablonowska in an action arising from an automobile accident in which plaintiff's mother Jadwega Baczewska (Baczewska) was killed. Plaintiff cross-appeals from the dismissal of her claim for the negligent infliction of emotional distress. For the reasons that follow, we affirm.
On October 14, 2000, plaintiff was driving in her vehicle and Baczewska was her passenger. At the time, defendant David P. Suther was driving a vehicle owned by defendant Theresa Suther. Suther's vehicle collided with plaintiff's car. Baczewska sustained personal injuries in the accident which resulted in her death.
On October 9, 2002, plaintiff filed a complaint naming the Suthers as defendants. Plaintiff alleged that David P. Suther drove the vehicle negligently and, as a result, plaintiff and Baczewska sustained personal injuries, which resulted in pain and suffering and Baczewska's death. Plaintiff claimed that she suffered emotional distress as a result of witnessing Baczewska's injuries and death. Plaintiff asserted claims asserted on behalf of Baczewska's survivors.*fn1
In February 2004, defendants filed a motion to dismiss plaintiff's individual claims for emotional distress and pain and suffering because she had not furnished a physician's certification within sixty days of the filing of the answer. Acording to defendants, the physician's certification was required by N.J.S.A. 39:6A-8a, as amended by the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35.
In response to the motion, plaintiff stated that she had not filed the physician's certification because her soft tissue injuries did not rise to the level required by the limitation on lawsuits in N.J.S.A. 39:6A-8a. Furthermore, plaintiff argued that she was asserting an emotional distress claim pursuant to Portee v. Jaffee, 84 N.J. 88 (1980), and the threshold did not apply to such a claim. Plaintiff submitted two reports to substantiate her emotional distress claim: a report by Irena Bartman-Fila (Bartman-Fila), a clinical social worker; and a report by Dr. David Brozyna (Brozyna), a psychiatrist.
On April 2, 2004, the judge entered an order granting defendants' motion to dismiss. The judge found that plaintiff's Portee claim is subject to the threshold in N.J.S.A. 39:6A-8a. The judge determined that dismissal of the claim was warranted because plaintiff had not furnished the physician's certification required by N.J.S.A. 39:6A-8a, and because plaintiff had not presented objective evidence of a permanent injury.
On or about April 14, 2004, plaintiff moved for reconsideration of the April 2, 2004, order. The judge entered an order on May 14, 2004, denying the motion. The matter was scheduled for trial on March 7, 2005. On or about January 31, 2005, plaintiff again moved for reconsideration of the April 2, 2004 order, and to adjourn the trial date.
In support of her motion for reconsideration, plaintiff relied upon Casinelli v. Manglapus, 181 N.J. 354 (2004), which was decided on September 23, 2004. In Casinelli, the Court held that a physician's certification under AICRA "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." Id. at 355-56. In further support of her motion, plaintiff submitted a physician's certification from Brozyna, dated January 14, 2005.
The trial judge entered an order on February 18, 2005, denying the motion. The judge wrote on the order that the Casinelli decision was not meant to encourage the re-opening of a matter which had been dismissed ten months before, under the guise of reconsideration. The judge again found that plaintiff's claim did not meet the ...