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Jablonowska v. Suther

June 10, 2008

HALINA JABLONOWSKA, INDIVIDUALLY AND AS ADMINISTRATRIX AD PROSEQUENDUM AND ADMINISTRATRIX OF THE ESTATE OF JADWIGA BACZEWSKA, DECEASED AND TADEUSZ JABLONOWSKA, PLAINTIFFS-APPELLANTS,
v.
DAVID P. SUTHER AND THERESA SUTHER, DEFENDANTS-RESPONDENTS, AND JOHN DOE, JANE ROE, ABC CORP. AND XYZ CO., SAID NAMES BEING FICTITIOUS, DEFENDANTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 390 N.J. Super. 395 (2007).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue before the Court is whether the verbal threshold provision in the Automobile Insurance Cost Reduction Act of 1998 (AICRA), which acts as a limitation on an insured's ability to sue an errant operator of a motor vehicle, can apply to bar an insured from maintaining a claim for negligent infliction of emotional distress pursuant to the liability theory announced by the Court in Portee v. Jaffee. Under Portee, a plaintiff may recover for the severe emotional harm that may be expected from having perceived the death of, or serious injury to, a spouse or intimate family relation.

On October 14, 2000, Halina Jablonowska and her mother, Jadwiga Baczewska, were driving in Jablonowska's Honda Civic to visit family in Wallington. Baczewska was seated in the front passenger seat. While proceeding northbound on Route 21 in Newark, Jablonowska's vehicle was struck from the rear by a vehicle driven by David Suther. The impact caused Jablonowska's Civic to crash into a concrete balustrade, causing Jablonowska to temporarily lose consciousness. When she regained awareness, she noticed pain in her head, leg and chest. Jablonowska also heard her mother moaning and calling for help. Once she was able to turn herself around toward the passenger side, Jablonowska observed that her mother's head was slumped forward and she was not moving. A distraught Jablonowska, suspecting that her mother was seriously injured, exited her car to get assistance.

Jablonowska "was in shock" and "trembling all over" as she responded to a police officer's questions about the accident. She and her mother were taken to the hospital by ambulance. Jablonowska was treated and released. Baczewska sustained fractures of her back, neck and ribs. In addition, the force of the collision partially severed her aorta, causing her to bleed into her thoracic cavity and resulting in her death.

Jablonowska sued David and Teresa Suther (hereinafter, Suther) for claims of emotional distress (based on witnessing her mother's severe injuries and death), wrongful death and survivorship. To support her emotional-distress claim, Jablonowska sought to demonstrate that, after her mother's death, she experienced "frequent crying, headaches, palpitations, chest pain, shortness of breath, nausea and vomiting, dizziness, [and] tingling and numbness in her extremities." She also suffered from nightmares and flashbacks of the accident. Her appetite decreased, and her memory and concentration became impaired. Three months after the accident, she began psychotherapy and eventually was diagnosed with Post-Traumatic Stress Disorder and Major Depressive Disorder.

Jablonowska's negligent-infliction-of-emotional-distress claim was based on the cause of action recognized in Portee. In her complaint, Jablonowska alleged that Suther's negligent operation of his motor vehicle caused her to experience the psychological trauma of witnessing her mother's injuries and subsequent death at the accident scene, resulting in her severe mental impairment. Suther moved for dismissal of the Portee claim after Jablonowska failed to produce a physician's certification within sixty days of the filing of Suther's answer, as required by AICRA's verbal threshold provision. Jablonowska argued that the physician's certification and bodily injury threshold requirements did not apply to her emotional-distress claim. Concluding that the verbal threshold requirement applied, the trial court dismissed the emotional-distress claim for failure to satisfy the physician-certification requirement and for failure to produce objective evidence of permanent bodily injury. A motion for reconsideration was denied. A subsequent motion to submit Jablonowska's doctor's certification was denied. Because Suther conceded liability, a three-day trial was held and was limited to the issue of damages for the wrongful death and survivorship claims. The jury returned a verdict of $205,018 for the wrongful death claim and $350,000 for the survivorship claims. The court denied Suther's motion for a new trial.

Suther appealed, arguing that Jablonowska failed to present sufficient evidence to support a wrongful death claim; that the trial court erred when charging the jury; that the damages award was excessive; and that Jablonowska's attorney's misconduct warranted a new trial. Jablonowska cross-appealed, arguing that her Portee claim should not have been dismissed. The Appellate Division rejected all of Suther's claims and affirmed the dismissal of Jablonowska's Portee claim. The panel concluded that the verbal threshold's requirements applied to her Portee claim, that emotional distress is not enough to carry her over the threshold, and that she otherwise failed to demonstrate objective clinical evidence of permanent injury required to maintain a cause of action governed by the verbal threshold.

The Supreme Court granted certification.

HELD: Jablonowska's negligent-infliction-of-emotional-distress claim, fashioned on the liability theory set out in Portee v, Jaffee, is independent of the requirements imposed by the Automobile Insurance Cost Recovery Act's verbal threshold and, therefore, Jablonowska's claim was improperly dismissed.

1. Under Portee, a plaintiff can maintain an independent cause of action for negligent infliction of emotional distress where: 1) the defendant's negligence caused the death of, or serious physical injury to, another; 2) the plaintiff shared a marital or intimate familial relationship with the injured person; 3) the plaintiff had a sensory and contemporaneous observation of the death or injury at the scene of the accident; and 4) the plaintiff suffered severe emotional distress. Thus, an individual can maintain an independent tort action for negligent infliction of emotional distress in two instances: 1) by demonstrating that the defendant's conduct places the plaintiff in reasonable fear of immediate personal injury, which gave rise to emotional distress that resulted in substantial bodily injury or sickness; or 2) by stating a prima facie claim for negligent infliction of emotional distress upon satisfying the four elements set forth in Portee. (Pp. 11-17)

2. Applying principles of basic statutory construction to AICRA's verbal threshold, the Court first considers the plain language of the statute. It is far from clear from the face of the verbal-threshold statute that the Legislature intended to subject Portee claims, as a class, to the threshold's bodily injury requirement. In analyzing the verbal threshold's intended applicability in these circumstances, it is compelling that the requirements for stating a prima facie Portee claim are specially tailored to address the particular form of emotional harm that it seeks to redress. Moreover, despite having imputed knowledge of Portee for approximately eighteen years, the Legislature provided no indication the AICRA's verbal threshold was meant to superimpose the permanent bodily injury requirement on Portee claims that happen to involve the use of a motor vehicle. By not including any relevant reference to the derivative and unique type of emotional injury compensated for by the liability theory announced in Portee, the Legislature's language creates an ambiguity as to whether such claims ever were intended to be dovetailed into an unfamiliar and superfluous bodily injury assessment for verbal threshold purposes. (Pp. 17-25)

3. Absent some express legislative indication to the contrary, it is illogical to presume that the Legislature impliedly meant to subject Portee claims to the verbal threshold's permanent injury requirement that the tort itself foregoes. The Court finds no more than an arguable abstract ambiguity that the Legislature ever intended to make AICRA's revised verbal threshold applicable to Portee claims when such claims had not been subjected to the threshold before. Accordingly, the Court holds that Portee claims are independent of the verbal threshold's requirements. Here, Jablonowska's emotional distress was not caused from the fright of being located within the zone of danger created by Suther's negligent use of his motor vehicle. Rather, her emotional distress was caused entirely from her presence at the tragic scene of her mother's injuries and death. Based on those circumstances, Jablonowska's Portee claim is not subject to the verbal threshold and her claim should not have been dismissed for failure to comply with its requirements. (Pp. 25-28)

Judgment of the Appellate Division is REVERSED and Jablonowska's negligent infliction of emotional distress claim is REINSTATED and the matter is REMANDED to the Law Division for further proceedings.

JUSTICE ALBIN, dissenting, in which JUSTICES LONG and WALLACE join, is of the view that permanent psychological injury, if proven by objective credible evidence, is the equivalent of a permanent bodily injury under AICRA and that Jablonowska should be given the opportunity to prove that she suffered a permanent injury compensable under AICRA. Justice Albin disagrees with the majority's holding that a common law claim for negligent infliction of emotional distress under Portee, arising from a motor vehicle accident and resulting in nonpermanent psychological injury, is exempt from AICRA's lawsuit threshold. The majority's resolution is inconsistent with the clear language of AICRA and will generate anomalous and even absurd distinctions that were never contemplated by the Legislature.

CHIEF JUSTICE RABNER and JUSTICES RIVERA-SOTO and HOENS join in JUSTICE LaVECCHIA'S opinion. JUSTICE ALBIN filed a separate dissenting opinion in which JUSTICES LONG and WALLACE join.

The opinion of the court was delivered by: Justice LaVECCHIA

Argued January 8, 2008

This appeal presents the question whether the verbal threshold provision in the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-1.1 to -35, which acts as a limitation on an insured's ability to sue an errant operator of a motor vehicle, can apply to bar an insured from maintaining a claim for negligent infliction of emotional distress pursuant to the liability theory announced by this Court in Portee v. Jaffee, 84 N.J. 88 (1980). In Portee, we recognized a plaintiff's entitlement to recompense for the severe emotional harm that may be expected from having perceived the death of, or serious injury to, a spouse or intimate family relation. Id. at 101.

Plaintiff's complaint alleged a Portee-based negligent-infliction-of-emotional-distress claim arising from an automobile accident caused by defendants that resulted in plaintiff suffering severe emotional distress after witnessing her mother, a passenger in plaintiff's vehicle, sustain fatal injuries at the accident scene. Both the trial court and the Appellate Division concluded that AICRA's verbal threshold applied to plaintiff's Portee claim and dismissed that cause of action based on plaintiff's failure to comply with the statute's requirements. Jablonowska v. Suther, 390 N.J. Super. 395, 398 (App. Div. 2007). We granted certification, 192 N.J. 69 (2007), and now reverse.

Since its inception, the Portee claim always has transcended the need to prove permanent physical injury. Despite that background, the Legislature provided no indication through the verbal threshold's plain language or its legislative history demonstrating an intent suddenly to superimpose the threshold's permanent bodily injury requirement on Portee claims involving the happenstance use of a motor vehicle. Absent that clear expression, we hold that the unique, derivative Portee claim is independent of AICRA's verbal threshold. Therefore, plaintiff's Portee claim should not have been dismissed for non-compliance with AICRA's requirements for suit.

I.

On October 14, 2000, Halina Jablonowska was driving to Wallington to visit her children and her eleven-month-old granddaughter. Jablonowska's mother, Jadwiga Baczewska, was accompanying her. While proceeding northbound on a stretch of Route 21 in Newark, Jablonowska's Honda Civic was struck from the rear by a vehicle being driven by David Suther.*fn1 The impact caused Jablonowska's Civic to crash into a concrete balustrade.

As a result of the crash, Jablonowska temporarily lost consciousness. As she regained awareness, she initially noticed pain in her head, leg, and chest. She then heard her mother moaning and crying out for help. By the time Jablonowska could turn herself toward the passenger seat to be able to see her mother, she saw Baczewska's head slumped forward. Baczewska was not moving. The distraught Jablonowska suspected that her mother had suffered serious injuries. Fearful of worsening her mother's grave condition by attempting to examine her, Jablonowska exited her car to obtain assistance.

Jablonowska "was in shock," and "trembling all over" as she answered questions about the accident posed by a responding officer. She and her mother were transported by ambulance to a nearby hospital. At the hospital, Jablonowska was treated and discharged. Baczewska, on the other hand, was not so fortunate. She had sustained fractures to her back, neck, and ribs. Worse, the force of the collision had partially severed her aorta, causing it to bleed directly into the thoracic cavity. She was pronounced dead on her arrival at the hospital, and a medical examination revealed that she had died within minutes of the accident from exsanguination caused by the transected thoracic aorta.

As a result of having witnessed her mother sustain severe personal injuries that resulted in death, Jablonowska instituted this action for emotional distress.*fn2 The record that Jablonowska sought to present in support of her emotional distress claim demonstrated that, after her mother's death, Jablonowska experienced "frequent crying, headaches, palpitations, chest pain, shortness of breath, nausea with vomiting, dizziness, [and] tingling and numbness of her extremities." She also suffered from nightmares and flashbacks of the accident. Her appetite decreased, and her memory and concentration became impaired. Three months after the accident, she began psychotherapy. From those treatments, the therapist identified Jablonowska's symptoms as including [a] variety of phobias, including fear of driving, a fear of being a passenger in a car, a fear of being in a closed room, sleep disturbance, intensive recollections of the motor vehicle accident while awake, flashbacks of the motor vehicle accident and a variety of other symptoms relating to re-experiencing . . . the traumatic event.

[Jablonowska] was not able to see any pictures of her mother for one year after that car accident. [She] also painfully tried to avoid the accident site. She avoids thoughts and feelings concerning the accident, she can't participate in any family events like Christmas or Easter. . . . She also lost her interest in socializing. She felt detached from others and unable to have loving feelings. The accident has affected her sexual and personal life, giving [her] a sense of vulnerability and insecurity.

During the treatment, [Jablonowska] was disciplined, cooperative, [and] highly motivated, but also depressed, felt isolated from others, and suicidal. She blamed herself for her ...


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