November 13, 2008
SUZANNE T. DEHARDT AND RONALD DEHARDT, WIFE AND HUSBAND, PLAINTIFF-APPELLANT,
ALFRED DIFRANCO AND GEORGE M. ARMSTRONG, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Sussex County, L-89-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2008
Before Judges Payne and Lyons.
Plaintiffs, Suzanne Dehardt and her husband Ronald, suing per quod, seek reversal of orders of summary judgment entered in favor of defendants Alfred DiFranco and George Armstrong as the result of plaintiffs' failure to file their complaint within the two-year statute of limitations applicable to their claims of injury arising from a motor vehicle accident. See N.J.S.A. 2A:14-2. Plaintiffs likewise appeal the denial of their motion for reconsideration. On appeal, plaintiffs claim the benefit of the discovery rule and argue that injuries sufficient to satisfy the permanency requirement of the limitation on lawsuit threshold of N.J.S.A. 39:6A-8a did not manifest until November 2006, more than two years after Suzanne's accident of September 24, 2004. We affirm.
On September 24, 2004, plaintiff Suzanne Dehardt*fn1 was injured when struck by an automobile driven by DiFranco. Following the first impact, a second collision occurred between plaintiff and a third vehicle operated by Armstrong. Suit on behalf of Suzanne and her husband was filed on February 9, 2007, more than two years after the accident.
The record discloses that plaintiff experienced pain in her head and left shoulder, along with a "sharp burning pain" in her lower back immediately after the accidents occurred. According to plaintiff's complaint, she then "underwent significant and extensive medical treatment for her injuries." In answers to interrogatories, plaintiff disclosed lengthy treatment by Charles Daknis, M.D., who performed a lumbar transforaminal epidural steroid injection at right L4-5 on November 9, 2004; a similar injection at right L5-S1 on December 13, 2004; a sacroiliac joint steroid injection and a right L5-S1 injection on January 26, 2005; a discectomy at L4-5 on February 28, 2005; an L4-5 injection and bilateral sacroiliac joint injections on August 1, 2005; and bilateral sacroiliac joint injections on September 2, 2005 and October 14, 2005. A CT scan of the lumbar spine was performed on November 8, 2004. Additionally, Dr. Daknis performed various spinal diagnostic studies on February 14, 2005. Plaintiff's interrogatory answers also disclosed that she had undergone a cervical fusion in April 1986 and a lumbar laminectomy in 1993.
In a report to plaintiff's attorneys, dated June 26, 2006, Dr. Daknis detailed extensive treatment rendered to plaintiff for injuries to her cervical spine as the result of complaints of pain and other symptoms, as well as the treatment for injuries to the lumbar spine that we have detailed previously. Significantly, the doctor stated in conclusion:
In my opinion, these symptoms and complications are directly related to her motor vehicle accident as listed above [September 24, 2004]. It is within a reasonable degree of medical certainty that the patient will require ongoing lifelong treatment for these symptoms and I would posit these injuries as permanent in nature.
Despite Dr. Daknis' opinion in late June 2006, almost three months before the statute of limitations expired on September 23, 2006, plaintiff did not file suit until February 2007. In support of her claim that her complaint was timely filed, plaintiff relies on her certification, in which she states that in November 2006, she first learned that the CT scan of her lumbar spine, taken on November 10, 2004, disclosed a "halo" within her prior lumbar fusion, and at that time plaintiff was informed that the halo was indicative of a fracture, a fact confirmed by subsequent testing. Plaintiff attested:
Prior to November of 2006, I did not know that my fusion had fractured, nor was I told by any medical professional that I had any permanent injury. Indeed, the only information I received was to the contrary.
That is, that my complaints were related to my prior accident, as opposed to the September 2004 accident.
N.J.S.A. 39:6A-8a requires that, to overcome the limitation on lawsuit bar set forth in that statute, plaintiff must show the existence of "a permanent injury within a reasonable degree of medical probability." See also DiProspero v. Penn, 183 N.J. 477, 481-82 (2005). Dr. Daknis offered the necessary evidence in his letter of June 26, 2006. Yet, plaintiff failed to file suit in a timely fashion.
In the circumstances presented, plaintiff cannot utilize the discovery rule as a means by which her complaint can be found to have been timely filed. The discovery rule tolls the statute of limitations until such time as a plaintiff knows, or reasonably should have discovered that she may have a basis for an actionable claim. Lopez v. Swyer, 62 N.J. 267. 272-75 (1973). In this case, plaintiff was aware at the time of her 2004 accident that she had sustained injuries to her cervical and lumbar spine, and she received extensive treatment to those areas. Further, the identity of those allegedly responsible for her injuries was immediately known to plaintiff. And finally, plaintiff was or should have been aware at least by June 2006, as the result of the letter from Dr. Daknis to plaintiff's retained counsel, that plaintiff's treating physician had found her injuries to be permanent. No reason has been offered to explain the failure to file suit at that time.
We therefore conclude that the orders of summary judgment in defendants' favor were properly entered in this case and that reconsideration was properly denied. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).