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Wheeler v. Crawford


May 30, 2007


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. ESX-L-638-04.

Per curiam.


Submitted May 16, 2007

Before Judges Parker and C.S. Fisher.

In this appeal, we conclude that the trial judge erroneously granted a summary judgment dismissing a complaint governed by the verbal threshold statute, N.J.S.A. 39:6A-8.

Plaintiff alleged in his complaint that he was injured in a July 30, 2002 automobile accident brought about by the negligence of defendant Jacqueline P. Crawford. Plaintiff's claim for personal injuries is governed by the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-8, the Legislature's most recent attempt to eliminate "suits for injuries which are not serious or permanent," N.J.S.A. 39:6A-1.1. As a result, he was obligated to show that the injuries sustained were "permanent" as that term is defined in N.J.S.A. 39:6A-8(a).

Immediately after the accident, plaintiff was examined at a hospital emergency room. The preliminary diagnosis was that he had sustained lumbar and cervical strains. He was provided with pain medication and discharged. The same day plaintiff was examined by Dr. Stephen L. Berger, a chiropractor, who found cervical muscle spasms and tenderness.

A few weeks later, an MRI study of the cervical and lumbar areas was performed. The report of the radiologist stated that plaintiff had disc bulges at the C4-C5, C5-C6 and C6-C7 levels.

Plaintiff filed his complaint on December 11, 2003, along with Dr. Berger's certificate of permanency, as required by N.J.S.A. 39:6A-8(a). This certification stated that the disc bulges referred to in the MRI study constituted a permanent injury in that, to a reasonable degree of medical probability, the injured body parts would not heal to function normally without further medical treatment. Dr. Berger attributed the cause of the injury to the auto accident in question.

In discovery, plaintiff also provided the medical reports of Drs. Edward Lev and Allen S. Glushakow. Dr. Glushakow opined that the prognosis "remained guarded," and that "[w]ithin a reasonable degree of medical probability, the injuries sustained as a result of the accident . . . are permanent in nature."

Defendant Crawford moved for summary judgment.*fn1 Her motion was argued less than one month after the Supreme Court rendered its watershed decisions in DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005). In those cases, the Court concluded that the serious impact prong of the pre-AICRA Oswin*fn2 test had no application in actions governed by AICRA, and that a plaintiff need only demonstrate the presence of a permanent injury, or one of the other types of injuries described in N.J.S.A. 39:6A-8(a), in order to demonstrate the right to sue for pain and suffering. Serrano, supra, 183 N.J. at 509. The Court cogently explained these holdings in a later case, emphasizing again that a plaintiff whose claim is governed by AICRA need not demonstrate that a permanent injury is "sufficiently serious" but only that the injury is permanent. Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332, 334 (2005).

Despite the Court's holding that a plaintiff need not prove either a serious life impact or that a permanent injury has attained a certain level of seriousness, the trial judge here concluded that plaintiff was required to show from "objective credible medical evidence . . . that the injury is serious, that the injury is permanent and that the injury was caused by the accident" (emphasis added). Utilizing this erroneous standard, the trial judge granted defendant's motion and later denied plaintiff's motion for reconsideration.

Since the judge mistakenly held plaintiff's claim to a higher standard than required by AICRA, we reverse the summary judgment entered in favor of defendant, and remand for further proceedings.

Reversed and remanded. We do not retain jurisdiction.

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