October 4, 2012
ANTHONY J. ADRIGNOLO, JR., PLAINTIFF-APPELLANT,
JEAMAKA T. EMEJURU AND CHINEDU V. EMEJURU, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4874-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 21, 2011
Before Judges Graves and Harris.
In this automobile negligence action, plaintiff Anthony J. Adrignolo, Jr., alleges he was permanently injured on November 10, 2008, when the car he was driving was struck by a vehicle operated by defendant Jeamaka Emejuru. Plaintiff appeals from a March 18, 2011 order granting summary judgment to defendants.
The trial court found that plaintiff failed to satisfy the limitation on lawsuit threshold set forth in N.J.S.A. 39:6A-8(a). For the reasons that follow, we affirm.
Plaintiff filed a one count complaint on May 27, 2009, seeking damages for "pain and suffering." Plaintiff alleged he "was thrown about violently and suffered severe medical and bodily injuries necessitating his obtaining medical treatment and causing him great pain, incapacitating him from pursuing his usual activities, and leaving him with permanent disabilities." Subsequently, in answers to interrogatories, plaintiff stated he was left-handed, and his "left hand [had] dislocated fingers and fractures." Plaintiff also itemized his medical expenses, the costs he incurred to lease another vehicle, and the cost to replace the vehicle he was driving at the time of the accident.
The trial court extended discovery to November 13, 2010, and the parties attended non-binding arbitration on January 13, 2011. The next day, plaintiff's attorney provided defendants' attorney with a certification of permanency from Rafael Levine, M.D., dated March 18, 2010, and a letter from Gene S. Rosenberg, M.D., F.A.C.S., dated June 16, 2010.
Defendants filed a summary judgment motion on February 3, 2011, alleging that plaintiff could not establish a permanent injury attributable to the accident. In response to defendants' motion, plaintiff provided the court with Levine's certification of permanency and Rosenberg's letter. Plaintiff also submitted a letter from Levine dated February 8, 2011, and an additional letter from Rosenberg dated February 14, 2011. Following oral argument on March 18, 2011, the motion judge concluded there was insufficient objective medical evidence to establish that plaintiff sustained a permanent injury as required by N.J.S.A. 39:6A-8(a).
Plaintiff argues on appeal that the order granting summary judgment to defendants should be reversed and the case remanded for trial. We do not agree.
Summary judgment is appropriate where the pleadings and evidence show "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). As the Court has stated: a determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to 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. The "judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."
[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (alteration in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986)).]
When reviewing summary judgment orders, we utilize the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We must first determine "'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.'" Brill, supra, 142 N.J. at 536 (quoting Liberty Lobby, supra, 477 U.S. at 251-52, 106 S. Ct. at 2512, 91 L. Ed. 2d at 214). If there is no genuine issue of material fact, we must then decide whether the trial court's application of the law was correct. Walker v. Atl. Chrysler Plymouth, Inc., 216 N.J. Super. 255, 258 (App. Div. 1987).
This lawsuit arises under the 1998 Automobile Insurance Cost Reduction Act (AICRA). N.J.S.A. 39:6A-1.1 to -35. AICRA created an option for policy holders to "lower premium payments in exchange for limiting their right (and the right of those covered by the policy) to sue for non-economic damages if injured in an accident." DiProspero v. Penn, 183 N.J. 477, 480 (2005). AICRA's "limitation on lawsuit threshold" bars a recovery for pain and suffering unless the plaintiff suffers an injury that falls within one of six statutory categories.*fn1 Id. at 488.
In this case, plaintiff claims he sustained a permanent injury to his left hand. An injury is considered permanent under AICRA "when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment." N.J.S.A. 39:6A-8(a). To satisfy the statute, a plaintiff must show there is "objective clinical evidence" of a permanent injury and that the injury was caused by the accident. Ibid. Plaintiff's medical proofs may not be based on tests which are "experimental in nature or dependent entirely upon subjective patient response." Ibid. "[O]nly honest and reliable medical evidence and testing procedures [may] be introduced to prove that an injury meets the threshold." DiProspero, supra, 183 N.J. at 489.
Plaintiff first relies on Levine's certification, dated March 18, 2010, and his letter dated February 8, 2011. The certification and letter were based on plaintiff's subjective complaints rather than objective medical tests and, as the trial court properly found, the information provided by Levine "failed to satisfy the limitation on lawsuit threshold." Plaintiff also relies on the letters from Rosenberg dated June 16, 2010 and February 14, 2011. However, neither letter states that plaintiff suffered "permanent renal damage," or any other permanent injury, as a result of the accident on November 10, 2008. Thus, the trial court correctly concluded that defendants were entitled to summary judgment because plaintiff failed to raise a genuine issue of material fact warranting resolution by a jury.
Plaintiff also argues that his claim for economic damages*fn2 should not have been dismissed. However, his complaint did not contain a claim for economic damages, and the issue was not presented to the motion judge. Therefore, the issue is not properly before us. See Bauer v. Nesbitt, 198 N.J. 601, 610 (2009) ("If not pled in a complaint, a cause of action cannot spring to life for the first time in an appellate court decision."); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).