Opinion
CV156013821
09-09-2016
Omar Espinal v. Mary Demoranville et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT GEICO INDEMNITY COMPANY'S MOTION FOR SUMMARY JUDGMENT (#120)
Elpedio N. Vitale, Judge.
Pursuant to Practice Book § 17-44 et seq., the defendant, GEICO Indemnity Company, (" GEICO") moves for summary judgment with respect to the Fourth Count of the plaintiff's Complaint, dated June 11, 2015. GEICO argues that the injuries alleged in the Complaint do not meet the limitation on lawsuit threshold under New Jersey law.
The plaintiff's Complaint sets forth four counts and claims that the plaintiff was injured in a motor vehicle accident which occurred in Middletown, Connecticut on June 24, 2013. The Fourth Count of the Complaint applies to the defendant GEICO. The plaintiff alleges that he is entitled to recover uninsured motor vehicle benefits from the defendant pursuant to a motor vehicle insurance policy issued to him by the defendant. The plaintiff seeks damages for the injuries he sustained as a result of the accident, including pain and suffering.
In connection with its motion, GEICO contends that New Jersey law applies, alleging that the policy issued to the plaintiff contains a choice of law provision that states " [t]he policy and any amendment(s) and endorsement(s) are to be interpreted pursuant to the laws of the State of New Jersey." A copy of the policy at issue was attached to the instant motion as " Exhibit B."
The policy is entitled " New Jersey Family Automobile Insurance Policy" and contains numerous references to New Jersey law, including the limitation on lawsuit threshold codified at New Jersey Statutes § 39:6A-8. The declarations page of the policy lists a New Jersey address for the plaintiff and notes that the insured vehicle is located in New Jersey.
Whether substantive New Jersey or Connecticut law applies to the automobile policy at issue is significant for purposes of this Motion for Summary Judgment. New Jersey law imposes a higher threshold on plaintiffs by virtue of the New Jersey Automobile Cost Reduction Act (" AICRA"). New Jersey Statutes § § 39:6A-1 et seq. Pursuant to AICRA, residents of New Jersey have two automobile insurance policy options: (1) a policy with a " limitation on lawsuit" or verbal threshold that limits a plaintiff's recovery for noneconomic damages to certain categories of injuries; or (2) a policy without a " limitation or lawsuit" threshold, which allows for unrestricted recovery for noneconomic losses in exchange for a higher premium. New Jersey Statutes § 39:6A-8; Casinelli v. Manglapus, 181 N.J. 354, 360, 858 A.2d 1113 (2004).
In the absence of a claim to the contrary by the parties, the court has applied Connecticut procedural law with respect to the standards applicable to Summary Judgment. Dunn v. Etzel, 166 Conn.App. 386, fn.5, 141 A.3d 990 (2016).
GEICO contends that the plaintiff selected the limitation on lawsuit option in the policy issued to him, and the injuries alleged by him do not fall within any of the exceptions to the limitations listed in § 39:6A-8.
The defendant GEICO submitted a memorandum of law in support of its motion. The plaintiff objects and argues that although the insurance policy presented by the defendant does indicate New Jersey law should apply to the contract, " under a choice of law analysis pursuant to § 188, this court should apply Connecticut law due to Connecticut's compelling interest." The plaintiff further argues that even assuming, arguendo, that New Jersey law applies, the plaintiff has provided " credible evidence" that he has sustained an injury satisfying the tort threshold contained in New Jersey Statutes § 39:6A-8 in the form of a report submitted by Arpad S. Fejos, M.D., of Orthopedic Associates.
The plaintiff submitted a brief in opposition to the motion.
The court heard oral argument on September 6, 2016.
Discussion
Familiarity with the case law and arguments recited by the parties is presumed and need not be generally repeated.
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is not a real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). " However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).
In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist. Vendrella v. Astriab Family Limited Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014). To satisfy his burden, the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issues of material fact. Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
Turning first to the issue of whether New Jersey or Connecticut law applies, at oral argument the plaintiff acknowledged that any concerns regarding his failure to receive a full and complete copy of the insurance policy at issue have been addressed. The factual claims by the defendant GEICO regarding the existence of a choice of law provision contained in the policy were not seriously disputed at oral argument, as well as the claims that the plaintiff procured the policy in New Jersey, had resided in that state when it was procured, lived and worked in New Jersey when it was procured, and had a New Jersey drivers license. When plaintiff relocated to Connecticut, GEICO was not informed.
The plaintiff instead appeared to rely on the arguments advanced in his brief in opposition, to wit, that Connecticut had a " compelling interest" in resolving the dispute pursuant to Connecticut law, despite the choice of law provision in the policy designating New Jersey law as applicable to any controversy concerning the provisions of the policy.
In Dhiman v. Liberty Mutual Mid-Atlantic Insurance Co., Superior Court, judicial district of Ansonia-Milford, Docket No. CV11-6007353 (July 16, 2012, Matasavage, J.) [54 Conn.L.Rptr. 374, ], Judge Matasavage addressed a very similar situation with regard to a choice of law claims regarding Connecticut and New Jersey. In a thorough and well reasoned opinion, Judge Matasavage addressed the " most significant relationship test" as set forth in the Restatement (Second) of Conflict of Laws and discussed in American States Ins. Co. v. Allstate Ins Co., 282 Conn. 454, 922 A.2d 1043 (2007). He also addressed claims similar to those raised by the instant defendant pursuant to § 188(2) of the Restatement (Second), supra, as well as § 6(2).
Given the arguments and factual circumstances present in this case, and their similarity to those in Dhiman, supra, the court adopts the reasoning articulated by Judge Matasavage in Dhiman, supra, and concludes that under the circumstances presented, New Jersey law applies to the present dispute.
The next question is whether the plaintiff has satisfied the requirements of AICRA by virtue of Dr. Fejos' opinion letter. AICRA, which was effective for all automobile insurance policies issued on or after March 22, 1999, amended the verbal threshold lawsuit limitations contained in N.J.S.A. 39:6A-8(a) to permit claims for noneconomic loss for soft-tissue injuries only when the injured party " has sustained a bodily injury which results in . . . a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." N.J.S.A. 39:6A-8(a). Moreover, " [a]n injury shall be considered permanent 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." Id. Thus, to overcome the " limitation on lawsuit threshold, " plaintiff must submit " objective credible [medical] evidence" of " a permanent injury." Serrano v. Serrano, 183 N.J. 508, 514, 519, 874 A.2d 1058 (2005). Plaintiff need not show that the injury was serious, id. at 518; or had caused " a serious life impact." DiProspero v. Penn, 183 N.J. 477, 506, 874 A.2d 1039 (2005).
Effective June 9, 2003, the language of 39:6A-8 states that a licensed treating physician must certify, under penalty of perjury, that the plaintiff has sustained an injury as described above. The statute further provides that " the certification shall be based on and refer to objective clinical evidence, which may include medical testing . . ." (emphasis added). In general, the word " shall" in a statute is considered mandatory, not directory language. Hence, the use of the word " may" suggests that medical testing is not required by the statute as a form of " objective clinical evidence." Quereshi v. Cintas Corp., 413 N.J.Super. 492, 996 A.2d 465 (2010).
Thus, for purposes of a motion for summary judgment, and applying the principles previously articulated relevant to said motion, the question becomes whether the Dr's opinion letter satisfies the statutory requirements. In his letter dated April 19, 2016, Dr. Fejos diagnosed the plaintiff with a " chronic lumbar strain" and " chronic low back pain." The plaintiff is required to " use a back brace and he cannot lift anything over 15 to 20 pounds without serious difficulty." Dr. Fejos stated that " [i]t is my opinion, within a reasonable degree of medical probability, that the patient does have a permanent partial impairment of the lumbar spine as a result of the motor vehicle accident dated June 24, 2013. This condition is chronic and given the nature of the condition, will tend to worsen with time."
He further added that " [g]iven the severity of his symptoms and the fact that he will more likely than not worsen with time, it is my opinion that he does have a 5% (five percent) impairment of the lumbar spine. In the future, he will have to decrease his activities at work which may cause him not to be employed in his current employment due to the fact that his pain will worsen. It is my opinion that the incident was a substantial factor increasing the risk of him having worsening symptoms."
In Juarez v. J.A. Salerno and Sons, Inc., 185 N.J. 332, 886 A.2d 178, the Supreme Court of New Jersey discussed generally the provisions of AICRA and stated as follows: " In DiProspero v. Penn, 183 N.J. 477, 874 A.2d 1039 (2005), and Serrano v. Serrano, N.J. 508, 183 N.J. 508, 874 A.2d 1058 (2005), we held that an automobile accident victim subject to the limitation on lawsuit threshold need only prove 'that her injuries satisfy one of the six statutorily defined threshold categories in the Automobile Insurance Cost Reduction Act (AICRA) to sue for pain and suffering damages.' Serrano, supra, 183 N.J. at 509, 874 A.2d 1058 (citing DiProspero, supra, 183 N.J. at 480-82, 874 A.2d 1039). In those cases, we noted that 'the Legislature considered the injuries defined in N.J.S.A. 39:6A-8(a) to be serious by their very nature.' " Id., at 510, 874 A.2d 1058 (citing DiProspero, supra, 183 N.J. at 497-98, 874 A.2d 1039).
The court's research has revealed the following non-exhaustive list of cases discussing the sufficiency of physician certifications regarding permanent injuries: Huggins v. Rollick, 2006 WL 587788 (A.D. 2006). (Evidence was sufficient to show motorist suffered permanent injuries in light of certification from physician that, to reasonable degree of medical probability, motorist sustained permanent injuries to her back related to accident that would not heal to function normally with further medical treatment, which certification was based on electrodiagnostic examination of motorist's lower extremities which indicated involvement injury to nerve roots of mild to moderate to severity, consistent with lumbosacral radiculopathy); Sackman v. New Jersey Mfrs. Ins. Co., 445 N.J.Super. 278, 137 A.3d 1204 (A.D. 2016) (Where question of permanency of injury is hotly contested, the jury must determine whether plaintiff has satisfied statutory burden by a preponderance of the evidence in order to recover for noneconomic loss as a result of automobile accident); Cavanaugh v. Morris, 273 N.J.Super. 38, 640 A.2d 1192 (A.D. 1994). (Complaint by automobile accident victim alleging permanent soft tissue injuries survives defense motion for summary judgment if plaintiff can raise genuine and material factual dispute that allegations of injuries are based on credible, objective, medical evidence; that objective medical evidence supports causal relationship between injury and disability alleged to have resulted; that disability has objective capacity to have serious impact on plaintiff's life; and that disability did have such serious impact from plaintiff's subjective point of view.)
Although it is a close call, and recognizing the strict standard to which the moving party is held, the court concludes that the physician's physical examination and resulting findings raise a genuine issue of material fact as to whether the June 24, 2013 automobile accident caused injuries to the plaintiff's lower back which " ha[ve] not healed to function normally and will not heal to function normally . . ." N.J.S.A. 39:6A-8(a).
Therefore, for the foregoing reasons the Motion for Summary Judgment is denied.