Opinion
Civil Action No. 02-1776 (JBS).
January 23, 2004
Barry S. Yaches, Esq., Glen L. Schemanski, Esq., Baran Yaches, Esquires, Cherry Hill, NJ, Attorney for Plaintiff.
Anthony P. Castellani, Esq., David B. Wright Associates, Mt. Laurel, NJ, Attorney for Defendant.
OPINION
This matter comes before the Court on cross-motions for summary judgment by plaintiff and defendant. Both parties move for summary judgment on the basis of the New Jersey limitation on lawsuit threshold (i.e. the verbal threshold). For the reasons discussed herein, both motions for summary judgment will be denied.
BACKGROUND
Plaintiff, Stephanie Friedman, n/k/a Stephanie Felgoise, was involved in an automobile accident with defendant, Gloria L. Galletta on May 15, 2000. The accident occurred on Route 70 East near the intersection with West Gate Drive in Cherry Hill, New Jersey. At the time of the accident, plaintiff was driving a 1998 Honda Accord registered in the Commonwealth of Pennsylvania, owned by Jerald N. Friedman, her father. Following the accident, plaintiff presented to the investigating police officer, a driver's license issued by the Commonwealth of Pennsylvania, listing her residence as 3646 Mountainview Avenue, Easton, PA. Jerald Friedman, the registered owner of the vehicle, has the same address. (Def. Ex. A, Police Report).
Plaintiff's vehicle did not sustain any property damage other than some "scuff marks" as a result of this impact. Plaintiff was able to remove those, for the most part, by wiping them off her rear bumper. (Def. Ex. B, Felgoise Dep. 11:25-13:7). Defendant advised that as a result of the impact, there was no damage done to her vehicle. (Def. Ex. D, Galletta Dep. 66:24-68:2).
Plaintiff stated in her deposition that at the time of the accident, the Honda Accord involved in that accident was hers to use even though titled in her father's name. (Def. Ex. B, Felgoise Dep. 7:2-14). At that time, plaintiff's father also paid for the insurance on the Honda Accord and took responsibility for maintenance of the vehicle. (Id. at 11:3-12). Plaintiff lived in Jenkintown, PA while she completed her post-doctoral training and during her first year of working at Philadelphia College of Osteopathic Medicine. She moved to an address in Plymouth Meeting, PA in October 2000. At that time, she began to pay for the insurance on the vehicle previously involved in the accident. (Id. at 6:3-10:19).
At the time of the automobile accident, the 1998 Honda Accord was insured by USAA Insurance. (Def. Ex. E). The 1998 Honda Accord is specifically listed as a vehicle insured under the policy with USAA. Further, plaintiff is listed as an operator of vehicles under the policy and the 1998 Honda Accord is listed as being principally garaged in Easton, PA. (Id.).
On the day of the accident, plaintiff sought treatment for injuries at the Emergency Room of Holy Redeemer Hospital. There, plaintiff complained of neck pain and related that she had a past history of a surgical fusion performed in 1998. (Def. Ex. F). Plaintiff sought medical care from Edward J. Vresilovic, Jr., M.D. and underwent periodic examinations with Dr. Vresilovic from May 18, 2000 through August 2, 2001. (Def. Ex. G). On her initial examination on May 18, 2000, Dr. Vresilovic noted that plaintiff complained of right-sided neck pain, tenderness on exam and limited range of motion. (Id.). Follow up visits on July 13, 2000 and August 24, 2000 noted improvement in her complaints with decreased pain. At the time of the August 24, 2000 examination, Dr. Vresilovic found minimal limitation in forward flexion. (Id.).
An MRI of plaintiff's cervical spine was performed on December 4, 2000. The plaintiff has a past history of a herniated cervical disc at the C5-6 level that required surgery performed by Dr. Vresilovic on May 4, 1998. (Def. Ex. L). The MRI study was interpreted as revealing post-surgical changes from her prior fusion surgery at C5-6 as well as a mild diffuse disc bulge at the C4-5 level. There were no other abnormalities noted. (Def. Ex. H). Plaintiff was also treated by Curtis W. Slipman, M.D. Dr. Slipman performed several diagnostic cervical facet joint blocks and transforaminal nerve root blocks. (Def. Ex. I). On his final examination, Dr. Slipman diagnosed plaintiff as having cervical discogenic mediated pain/internal disc disruption syndrome with somatic referral. (Id.).
On March 15, 2002, plaintiff was examined by Evelyn Witkin, M.D. On physical examination, Dr. Witkin noted full range of motion to the neck. (Def. Ex. J). Dr. Witkin expressed the opinion that plaintiff's continued pain resulted from trauma caused by the automobile accident and was likely to be a permanent injury. (Id.).
At the time the accident occurred, plaintiff was employed at Philadelphia College of Osteopathic Medicine. She missed approximately four days from work immediately following the accident. Thereafter, she missed several days as a result of medical treatment. Plaintiff was promoted, however, in July 2001. (Def. Ex. B, Felgoise Dep. 13:16-16:8). Plaintiff continues to work on a full-time basis, with accommodations, both physical and in her daily schedule. (Id. at 55:17-18).
DISCUSSION
New Jersey Limitation on Lawsuit Threshold
Pursuant to the "Deemer Statute," N.J.S.A. 17:28-1.4, a named insured and the immediate family members of a named insured are bound by the New Jersey limitation on lawsuit threshold if their automobile insurer is authorized to transact automobile insurance business in the State of New Jersey. N.J.Stat.Ann. § 17:28-1.4 reads in pertinent part as follows:
Any insurer authorized to transact or transacting automobile or motor vehicle insurance business in this State, or controlling or controlled by, or under common control by, or with, an insurer authorized to transact or transacting insurance business in this State, which sells a policy providing automobile or motor vehicle liability insurance coverage, or any similar coverage, in any other state or in any province of Canada, shall include in each policy coverage to satisfy at least the liability insurance requirements of section 1 of P.L. 1972, c. 197 (C. 39:6B-1) or section 3 of P.L. 1972, c. 70 (C. 39:6A-3), the uninsured motorist insurance requirements of subsection a. of section 2 of P.L. 1968, c. 385 (C. 17:28-1.1), and personal injury protection benefits coverage pursuant to section 4 of P.L. 1972, c. 70 (C. 39:6A-4) or of section 19 of P.L. 1983, c. 362 (C. 17:28-1.3), whenever the automobile or motor vehicle insured under the policy is used or operated in this State.
Any liability insurance policy subject to this section shall be construed as providing the coverage required herein, and any named insured, and any immediate family member as defined in section 14.1 of P.L. 1983, c. 362 (C. 39:6A-8.1), under that policy, shall be subject to the tort option specified in subsection a. of section 8 of P.L. 1972, c. 70 (C. 39:6A-8).
Here, USAA Insurance is authorized to transact automobile insurance business in the State of New Jersey and does so.
Under N.J.S.A. 39:6A-8.1(a), an "immediate family member" is defined as "the spouse of the named insured and any child of the named insured or spouse residing in the named insured's household who is not a named insured under another automobile insurance policy." Plaintiff was, at the time of the accident, the unmarried child of the named insured under the USAA policy. Under the terms of the statute, plaintiff would be bound by the lawsuit threshold option if she were deemed a resident of her father's household.
In determining residency and applicability of the limitation on lawsuit threshold, New Jersey's Appellate Division has held that the concept of dual residency/integrated family unit should be utilized in deciding tort option election issues. Roman v. Correa, 352 N.J. Super. 124, 125 (App Div. 2002). In Roman, the court concluded that "an immediate family member may reside in more than one household so as to be bound by the tort option election of the head of the household." Id. at 129.
Here, plaintiff held herself out as a resident of her father's household. Her driver's license issued by the Commonwealth of Pennsylvania and presented to the investigating police officer listed her father's Easton, PA home as her address. In addition, this same address was provided to the Emergency Room personnel at Holy Redeemer Hospital for billing purposes when plaintiff presented for medical treatment.
The facts indicate that plaintiff maintained an apartment in Jenkintown, Pennsylvania while she attended post-graduate studies and for her first year of work. Nevertheless, plaintiff remained financially dependent on her father, at least in part, at the time this accident occurred. Plaintiff's father continued to pay for the insurance on the vehicle she used on a regular basis and assumed financial responsibility for the maintenance of the vehicle. Only after she married and moved to a new marital residence with her husband did she assume those financial responsibilities herself.
In Arents v. Gen. Acc. Ins. Co., 280 N.J. Super. 423 (App. Div. 1995), New Jersey's Appellate Division held that an adult son was a resident of his parents' household, although the son resided in his own apartment during the week. A deciding factor in the Arents case was the fact that the son's cars were always registered, garaged, operated, and insured from his father's home. Much like in Arents, here, plaintiff's father assumed primary responsibility for the vehicle involved in the automobile accident at issue.
Furthermore, the insurance policy itself indicates that plaintiff was a member of her father's household at the time the accident occurred. Plaintiff is listed as an operator under the policy and the vehicle she was operating at the time this accident occurred was represented to be principally garaged at her father's Easton, PA address.
New Jersey's Appellate Division has specifically held that the listing of an individual as an insured on a declaration page of a policy of insurance, qualifies that individual as an insured for insurance coverage purposes. Lehroff v. Aetna, 271 N.J. Super. 340 (App.Div. 1994). In Lehroff, the adult child of the named insureds under an Aetna policy of automobile insurance had relocated to California, obtained employment in California and obtained a California driver's license. Despite this evidence, which indicated that he had left the household of his parents, New Jersey's Appellate Division concluded that the child was entitled to uninsured motorist coverage under his parents' policy of insurance because he was listed as a named driver on the declaration page of the policy. Lehroff, 271 N.J. Super at 349-50.
In this case, plaintiff is clearly listed as an operator of a vehicle under the policy of insurance issued by USAA. As the individual entitled to all the benefits of that listing under New Jersey law, she should also be subject to the limitations required by New Jersey law. Among those limitations is the requirement that she be bound by the lawsuit threshold requirement for asserting a personal injury complaint.
Nature of Plaintiff's Injury in Relation to the Lawsuit Threshold
Having established that plaintiff is subject to the New Jersey limitation on lawsuit threshold, this Court must next examine the severity of plaintiff's injuries. N.J.S.A. 39:6A-8(a) sets forth the requirements that a plaintiff must meet in order to satisfy the standards of the New Jersey limitation on lawsuit option. The only possible category under which plaintiff can be permitted recovery here is that which requires "a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." N.J.S.A. 39:6A-8(a).
New Jersey's Appellate Division recently had occasion to interpret the statute and determined that the current limitation on lawsuit threshold set forth at N.J.S.A. 39:6A-8(a) incorporated and adopted the case law interpreting the prior verbal threshold statute. James v. Torres, 354 N.J. Super. 586 (App.Div. 2002). New Jersey courts have also spoken to the requirements that must be met for a plaintiff to survive a motion for summary judgment in such cases.
Therefore, in order to survive a motion for summary judgment under the limitation on lawsuit threshold, the plaintiff must raise a genuine issue of material fact as to whether the plaintiff sustained an injury that meets the statutory threshold. . . . [T]he plaintiff must show that the injury is a serious injury. To do so, the plaintiff must present objective, credible evidence to support the claim. In addition, the plaintiff must show that the injury has had a serious impact on the plaintiff's life. If a plaintiff fails to raise a genuine issue of material fact, the court may grant summary judgment in favor of the defendant.Rio v. Szivos, 354 N.J. Super. 578, 585 (App.Div. 2002). In essence, plaintiff must demonstrate two things to support a claim of serious injury: objective evidence of serious injury and a subjectively serious impact on plaintiff's life.
This Court begins with an analysis of the subjective showing that is required. Plaintiff has testified in her deposition, and her medical records reflect as well, that her pain and disability has had a significant effect on her ability to engage in daily living activities such as opening a window, carrying groceries, sitting at a computer for more than 20 minutes, engaging in exercise, pushing a shopping cart, folding or lifting laundry, and caring for her baby. (Felgoise Dep. 52:15-55:14). In addition, plaintiff is no longer able to perform the rugged physical activities she once enjoyed — mountain biking, impact aerobics, skiing, and rollerblading. (Id. at 52:11-20). While there might be some question as to the degree of seriousness of impact on plaintiff's life that these limitations have imposed, plaintiff has presented enough to raise a genuine issue of material fact, warranting that the question be decided by a trier of fact.
Next, this Court must examine the objective evidence requirement imposed by the Appellate Division's interpretation of the statutory language at play here. Defendant asserts that plaintiff has not met the objective evidence requirement necessary to meet the limitation on lawsuit standard. Defendant points to the MRI study of plaintiff's cervical spine, which reveals a disc bulge at the C4-5 level and post-surgical changes at the C5-6 level, both thought to be related to plaintiff's prior cervical fusion surgery. Defendant suggests that plaintiff's pain complaints are related to the bulge disc at C4-5, a finding that is not traumatic in nature but rather, is degenerative.
Plaintiff, however, has offered the medical opinion of Dr. Evelyn D. Witkin to contradict defendant's contentions. (Def. Ex. J). Dr. Witkin is of the opinion that "[b]ased upon a reasonable medical certainty, Stephanie Felgoise's current cervical spine complaints and injuries are causally related to her automobile accident on 05/15/00. This is based upon her subjective complaints, history given by the patient, medical records, and tests provided along with her physical findings." (Id.) Dr Witkin further expressed that plaintiff suffered from a "degenerated disc above a level of fusion that has been traumatized by the motor vehicle accident and may certainly increase with time or further degenerative [sic] or calcify." (Id.) Thus, plaintiff has presented sufficient evidence, raising a genuine issue of material fact, to overcome defendant's motion for summary judgment. Plaintiff's evidence raises questions of credibility and fact that are best left to a jury.
CONCLUSION
As plaintiff has not been able to demonstrate that she is exempted from the limitation on suit imposed by the New Jersey lawsuit threshold and defendant has not prevailed in overcoming the genuine issues of material fact raised by plaintiff's evidence with respect to the injury requirements of that limitation, both parties' motions for summary judgment must be denied. The accompanying Order is entered.
ORDER
This matter having come before the Court upon cross-motions for summary judgment by plaintiff Stephanie Friedman-Felgoise and defendant Gloria L. Galletta; and the Court having considered the parties' submissions; and for the reasons stated in the Opinion of today's date; and for good cause shown;
IT IS this 22nd day of January, 2004 hereby
ORDERED that plaintiff Stephanie Friedman-Felgoise's motion for summary judgment [Docket Item No. 20-1] be, and hereby is, DENIED ; and
IT IS FURTHER ORDERED that defendant Gloria L. Galletta's motion for summary judgment [Docket Item No. 19-1] be, and hereby is, DENIED.