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Simmons v. Lynch

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 19, 2010

LOIS SIMMONS, PLAINTIFF-APPELLANT,
v.
PATRICIA LYNCH AND LIBERTY MUTUAL, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1582-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 6, 2010

Before Judges Simonelli and Fasciale.

Plaintiff Lois Simmons appeals from the October 9, 2009 Law Division order granting summary judgment to defendants Patricia Lynch and Liberty Mutual Insurance Company and dismissing her complaint with prejudice. We affirm.

The following facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

On October 26, 2005, plaintiff was involved in a motor vehicle accident while driving an insured vehicle owned by her employer. Plaintiff owned a vehicle, which was uninsured at the time. Plaintiff received treatment for her injuries at Trinitas Hospital and was diagnosed with a minor head injury caused by the accident. Plaintiff was subsequently diagnosed with post-concussion syndrome. Her condition improved within six weeks after the accident.

Plaintiff later complained of neck, back, and shoulder pain, which she attributed to the accident. However, a magnetic resonance imaging (MRI) of the shoulder, revealed subscapularis calcific tendonitis with interstitial tearing but no rotator cuff tear, a strain of the deltoid muscle, a minimal subacrimial subdeltoid bursitis, and a mild proximal biceps tendon without tear. An MRI of the cervical spine revealed minor bulges at C4-5 and C5-4 related to mild to moderate degenerative changes of the cervical spine which did not appear to result in focal nerve root compression. An electromyography was normal with no evidence of focal neuropathy, cervical radiculopathy, brachial plexopathy, polyneuropathy or myopathy. A nerve conduction test, x-rays and CT scan of the head were also normal.

Plaintiff did not provide a doctor's report establishing that she suffered a permanent injury causally related to the accident. She also did not provide a physician's certification, as required by N.J.S.A. 39:6A-8a.

Defendants filed a motion for summary judgment based, in part, on plaintiff's failure to meet the verbal threshold requirements contained in the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1 et seq. See N.J.S.A. 39:6A-8. Plaintiff countered that she is not subject to AICRA because she was not operating her uninsured vehicle at the time of the accident. Alternatively, plaintiff claims she suffered permanent injuries as a result of the accident, consisting of cervical disc bulges, multilevel spondylosis and unsteadiness.

The trial judge granted the motion, concluding that AICRA applies to plaintiff because she was required to maintain personal injury protection (PIP) for her vehicle, and was unlawfully uninsured at the time of the accident. The judge also concluded that plaintiff failed to provide objective medical evidence of a permanent injury.

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009). Thus, we consider, as the trial judge did, "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill, supra, 142 N.J. at 536). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008).

Applying these standards, we conclude that the trial judge properly granted summary judgment. AICRA applies to plaintiff because she was the owner of an automobile to which PIP coverage applies, was required to maintain PIP coverage, and was an "unlawfully uninsured person." N.J.S.A. 39:6A-8a; Martin v. Chhabra, 374 N.J. Super. 387, 392 (App. Div. 2005) (quotation omitted). Plaintiff failed to meet AICRA's verbal threshold because she provided no objective medical evidence establishing within a reasonable degree of medical probability that she sustained a permanent injury causally related to the accident. N.J.S.A. 39:6A-8a.

Affirmed.

20101019

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