The opinion of the court was delivered by: John T. McCann Simandle, District Judge
This case arises out of an automobile accident between the parties that occurred in New Jersey. Plaintiff Rhoda Kauffman ("Plaintiff"), a Pennsylvania resident, filed this action against Defendant John McCann ("Defendant"), a New Jersey resident, seeking monetary compensation in excess of $100,000, including damages for such non-economic harm as "pain and suffering." (Compl. at 3.) Defendant filed a motion for summary judgment, seeking to preclude Plaintiff from recovering non-economic damages because of her alleged failure to meet the requirements of N.J. Stat. Ann. § 39:6A-8(a) ("the Automobile Insurance Cost Reduction Act" or "AICRA"). There was a dispute as to whether this statute applied to Plaintiff, as it was unclear whether her insurance provider was authorized to transact automobile insurance in New Jersey at the time of the crash. See N.J. Stat. Ann. § 17:28-1.4 (deemer statute).
The Court heard oral argument on October 19, 2006 and December 7, 2006 and determined on December 13, 2006 that Plaintiff's automobile insurance provider was authorized to transact business in New Jersey as of the date of the accident. Therefore, the Court held that Plaintiff is subject in this action to the requirements of AICRA, but the Court permitted additional briefing and reserved decision as to whether the statute bars Plaintiff from pursuing non-economic damages in this case.
AICRA's limitation on lawsuit threshold will not restrict a plaintiff's remedies if she "has sustained a bodily injury which results in . . . a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment." N.J. Stat. Ann. § 39:6A-8(a); see DiProspero v. Penn, 183 N.J. 477, 481-82 (2005) ("[A]n 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.") Plaintiff claims she has suffered permanent injuries which have not and will not heal to function normally. In addition to medical records, Plaintiff has presented the Court with a medical certification from her doctor stating as much, as the statute requires. Defendant argues that this certification, in and of itself, cannot create a genuine issue of material fact and that the remaining evidence in this case does not do so either.
Summary judgment is appropriate when the 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." Fed. R. Civ. P. 56(c). In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "the nonmoving party's evidence 'is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). 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." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation omitted).
With this standard in mind, the Court turns now to the facts of this case.
On July 25, 2003, Defendant's vehicle collided with Plaintiff's vehicle at about 7 P.M. in Galloway Township, New Jersey. Plaintiff is a resident of Pennsylvania and Defendant is a resident of New Jersey, as they were at the time of the accident.
Approximately one month after the accident, an X-ray of Plaintiff's cervical and lumbar spine showed multilevel degenerative and disc disease, as well as straightening of the spine partly due to fusion at C5-6 and possibly due to spasm in the cervical spine. The radiologist noted that the fusion was likely congenital. The X-ray also showed that Plaintiff had scoliosis in her lower back and multilevel degenerative disease and a congenital anomaly of L5 in the lumbar spine.
On August 26, 2003, Dr. Carl Goodman examined and diagnosed Plaintiff with cervical, trapezius and lumbar strain/sprain; resolving hematoma and sprain/strain of her left calf; and cephalgia. A lumbar MRI in October 2003 showed that Plaintiff suffers from multilevel degenerative disease in the lumbar spine. The lumbar MRI revealed a mild bulge at L1-2; concentric bulging at L3-4, L4-5 and L5-S1, associated with facet arthropathy and mild stenosis. (Def. Ex. H.) The radiologist's report on that MRI indicates that any injury is congenital or degenerative (id.) and provides little to no support for Plaintiff's claim that she suffered permanent back injury from the accident.
In addition to the injuries she suffered in 2003, Plaintiff previously injured her neck and back in a 1990 automobile accident when a truck hit the car in which she was a passenger. From the time of that accident until the time of the 2003 accident, Plaintiff's lower back continued to bother her and she continued to perform the exercises prescribed by her physical therapist in 1990.*fn1
Plaintiff has submitted a medical certification from her treating physician, Dr. Bruce Barris, which indicates that the subject accident caused her disc bulging, lumbar stenosis, lumbar radiculopathy, cervical strain and sprain, and leg contusions. In Dr. Barris's AICRA certification, he opined that based on objective medical evidence, including the MRI, Plaintiff's injuries "have not healed to function normally, will not heal to function normally with further treatment and came as a result of the . . . accident." (Def. Ex. E ...