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Johnson v. Gardner

December 4, 2009

HELEN E. JOHNSON, PLAINTIFF-APPELLANT,
v.
DELINIA C. GARDNER, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-17-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 27, 2009

Before Judges Lihotz and Ashrafi.

Plaintiff Helen Johnson appeals from an order of December 5, 2008, granting summary judgment to defendant and dismissing her personal injury complaint arising out of a motor vehicle accident. We affirm.

On January 24, 2006, plaintiff, who was fifty-eight years old, broke her right index finger when an unidentified driver using defendant Delinia Gardner's car ran a stop sign and collided with her car. She was treated in an emergency room and released. An x-ray of the right hand confirmed a "[f]racture of the base of the proximal phalanx of the 2nd digit." The radiologist's report also found "[d]egenerative change of the proximal interphalangeal joint of the 3rd digit[,]" and noted "[m]arked deformity of the carpal bones, which I suspect likely is related to degenerative change."

Plaintiff followed up with an orthopedist, John P. Nolan, Jr., M.D., who saw her two times, on January 25 and February 16, 2006. Dr. Nolan issued a report dated June 9, 2006, which described the condition of plaintiff's hand in laymen's language as "fracture of the base of the right index finger." He also wrote that "[s]he had a history of rheumatoid arthritis, Type II diabetes and osteoporosis[,]" and that, on the last visit, plaintiff "was continuing to have some stiffness in the finger with diminished range of motion." Dr. Nolan further reported:

It is my opinion, as a result of the finger fracture, she is likely to have some residual stiffness and diminished range of motion of the hand. This is superimposed upon a pre-existing rheumatologic condition.... [S]he had advanced destruction of the radiocarpal joints, as well as degenerative changes in the MP and PIP joints of several digits....

It is my impression that Ms. Johnson has sustained a fracture as a result of the motor vehicle accident and this appears to have increased the stiffness in PIP joint of a hand that already had a pre-existing arthritic condition. As such, it is likely, given her medical condition, that stiffness will remain permanent.

In January 2008, plaintiff filed this lawsuit seeking money damages for the injury to her finger.

Plaintiff's auto insurance policy contained the lawsuit threshold under the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. Therefore, she was required to prove one of the six kinds of injuries listed in N.J.S.A. 39:6A-8a to recover compensation for non-economic damages such as disability, impairment, and pain and suffering. Because no diagnosis described the injury as a displaced fracture, which is one of the six types of qualifying injury, plaintiff's only alternative was to show that she suffered "a permanent injury." Ibid.; see Kennelly-Murray v. Megill, 381 N.J. Super. 303, 312-13 (App. Div. 2005).

She was also required to file a certification from a physician attesting that she had sustained an injury as described in the statute. N.J.S.A. 39:6A-8a. Plaintiff filed a certification by Dr. Nolan dated September 5, 2008, again stating that plaintiff suffered a fracture at the base of her finger, the fracture increased stiffness in the joint, and the stiffness was permanent. Nothing in the certification indicated that there was any further treatment or examination by Dr. Nolan after February 16, 2006, just twenty-three days after the accident.

Defendant moved for summary judgment, contending that the report and certification of plaintiff's doctor were not sufficient to establish by objective medical evidence that plaintiff had suffered a permanent injury caused by the accident. The trial court agreed and granted summary judgment dismissing plaintiff's complaint. Plaintiff appeals, arguing that genuine factual disputes exist that should have precluded summary judgment on the issue of permanent injury caused by the accident.

In reviewing a grant of summary judgment, an appellate court applies the same standard under Rule 4:46-2(c) that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). The court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, ...


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