On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4083-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Grall.
This is a personal injury cause of action as a result of a motor vehicle accident. Plaintiff Anthony Serrao appeals from the order of the Law Division granting defendants' motion for summary judgment, and dismissing his case. The discrete issue presented for our consideration is whether a scar on plaintiff's left eyebrow is sufficient to overcome the litigation limitation contained in his automobile insurance policy. N.J.S.A. 39:6A-8.
All of the parties here agree that our review of the trial court's ruling is governed by the standards articulated by the Supreme Court in Soto v. Scaringelli, 189 N.J. 558, 564 (2007).
Those standards are as follows:
In respect of the "significant disfigurement or significant scarring" statutory threshold applicable to a plaintiff's appearance, we hold that the threshold is satisfied only if an objectively reasonable person would regard the scar or disfigurement as substantially detracting from the automobile accident victim's appearance, or so impairing or injuring the beauty, symmetry, or appearance of a person as to render him or her unsightly, misshapen, or imperfect. Applying that standard, we also hold that the trial court properly concluded that injuries claimed did not satisfy the "significant disfigurement or significant scarring" statutory threshold. Finally, we hold that, in the future and as a condition precedent to meaningful appellate review, a plaintiff who seeks to resist a defense based on that threshold bears the burden of establishing a proper record. That record must include the trial court's direct observations and description of the disfigurement or scarring alleged to be significant, together with an accurate photographic record thereof.
Mindful of these legal principles, Judge Harris made the following findings:
Having observed Mr. Serrao, having observed the photographs, having read Dr. Barouk's testimony, I conclude that there is no rational fact finder who could determine that Mr. Serrao's appearance, beauty or symmetry has been rendered unsightly, misshapen or imperfect or in anyway deforming him in some manner. I say that because even in the photographs, it is difficult to discern the scar from the natural or normal folds on the skin surface of Mr. Serrao. In the light from the bench, meaning where I sat on the bench and looked across, I couldn't even see the scar, it was only until I stepped down and made a very close examination could I even detect the semi vertical scarring that was of any of this the most prominent and even with that, I conclude that no rational juror could equate that with unsightliness, misshapenness, imperfection.
After reviewing the record before us, including all of the various photographs of the plaintiff's face, we are in complete agreement with Judge Harris, and thus affirm substantially for the reasons he expressed in his well-reasoned oral decision.
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