Rios v. Szivos

808 A.2d 868, 354 N.J. Super. 578
CourtNew Jersey Superior Court Appellate Division
DecidedNovember 6, 2002
StatusPublished
Cited by23 cases

This text of 808 A.2d 868 (Rios v. Szivos) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rios v. Szivos, 808 A.2d 868, 354 N.J. Super. 578 (N.J. Ct. App. 2002).

Opinion

808 A.2d 868 (2002)
354 N.J. Super. 578

Maria C. RIOS, Plaintiff-Respondent,
v.
Joseph SZIVOS, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued October 8, 2002.
Decided November 6, 2002.

*869 John G. Tinker, Cedar Knolls, argued the cause for appellant (Leary, Bride, Tinker & Moran, attorneys; Mr. Tinker, of counsel; David J. Dering, on the brief).

Robert A. Hofmann, New Brunswick, argued the cause for respondent (Kogos & Hofmann, attorneys; Mr. Hofmann, on the brief).

Before Judges STERN, COLLESTER and ALLEY.

The opinion of the court was delivered by STERN, P.J.A.D.

We granted leave to appeal to consider whether a treating physician's certificate, in compliance with N.J.S.A. 39:6A-8(a), is, by itself, sufficient to satisfy the "verbal threshold" (now properly called the "[l]imitation on lawsuit option") and warrants a jury trial on plaintiff's suit for non-economic losses under the Automobile Insurance Cost Reduction Act of 1998 ("AICRA" or "the Act"), N.J.S.A. 39:6A -1 to -35, as amended by L. 1998, c. 21, in a case in which plaintiff claims to have suffered "a permanent injury."

We hold that the trial judge erroneously concluded that the providing of a certificate, by itself, required the denial of defendant's motion for summary judgment. We do so because the legislative history resulting in the adoption of AICRA, see e.g., Weidner and Canavan, "The `New' Verbal Threshold: But Is It Improved," 24 Seton Hall Leg. J. 117, 124-136 (1999), evidences a legislative intent to decrease the number of cases crossing the threshold and proceeding to trial, and, consequently, lower the number of judgments for non-economic loss, thereby reducing automobile insurance costs. We conclude, as did the Law Division in Rogozinski v. Turs, 351 N.J.Super. 536, 799 A.2d 41 (2002), that

[b]ecause AICRA reflects an intention to `tighten' the threshold and further restrict lawsuits arising from automobile accidents to claims for injuries that are permanent and serious, AICRA does not reflect an intention to modify the essential holdings of Oswin v. Shaw, [129 N.J. 290, 609 A.2d 415 (1992) ]. Therefore, the plaintiff must show, by the presentation of objective credible evidence, that the injuries come within one of the categories of injuries defined in the amendatory legislation. In addition, the plaintiff must show that the injuries have had a serious impact upon the plaintiff's life.
[Rogozinski, supra, 351 N.J.Super. at 549, 799 A.2d 41.]

As to the preservation of the "serious impact" requirement, see also James v. Torres, 354 N.J.Super. 586, 808 A.2d 873 (App. Div.2002).

Given AICRA's intention to retain the Oswin summary judgment model, the certificate of plaintiff's physician asserting permanency, and filed under N.J.S.A. *870 39:6A-8(a), does not by itself preclude summary judgment.

I.

On August 4, 1999, the parties were involved in a motor vehicle accident. As a result, plaintiff claims to have suffered "disc bulges [at] L4-L5 and L6-S1," as well as an aggravation of a "herniated disc [at] L5-S1" previously sustained in a 1996 work related accident. At the time of the prior accident, a lumbar magnetic resonance imaging ("MRI") revealed that Rios suffered a "small central protrusion [at] L5-S1."

Following the 1999 accident, plaintiff received medical treatment, including physical therapy, from several health care providers. She also filed a Physician's "Certification Pursuant to Automobile Insurance Cost Reduction Act of 1998," as required by AICRA, N.J.S.A. 39:6A-8(a), in this action. Therein, Dr. John Hochberg certified:

1. I am a licensed physician of the state of New Jersey and was a treating physician for automobile-related injuries incurred by Maria C. Rios resulting from an accident on Au[g]ust 4, 1999.
2. Based upon my professional expertise and the findings in the attached report including reference to clinical objective findings and/or objective medical test, it is my opinion that, within a reasonable degree of medical probability, my patient has sustained permanent injury with significant disfigurement or significant scarring that will have permanent residual sequelae.
3. Based on objective medical testing, my patient had an MRI on December 6, 1999 which revealed L4-5 bulge with flattening of the disc space.
4. It is my further opinion, within a reasonable degree of medical probability, that although further treatment in the future may alleviate some symptomatology, the permanent residuals of the injury cannot be completely resolved by the way of further treatment intervention and there will be some aspect of residual permanent injury experienced for the balance of my patient's life.
5. I affirm that the above conclusions are true to the best of my knowledge and belief, and I am aware that I am subject to punishment as outlined in the Automobile Insurance Cost Reduction Act if any statements are made with fraudulent intent to misrepresent the residual aspects of my patient's injury.[1]

Defendant moved for summary judgment. He claimed that, under N.J.S.A. 39:6A-8, plaintiff had the burden of proving the aggravation of a preexisting injury by objective, credible medical evidence. He also asserted that plaintiff failed to meet the burden. Plaintiff countered that "the doctor's certification alone creates a question of fact" and that, in any event, the denial of summary judgment was warranted because "the previous MRI," following the 1996 accident, showed no bulge at L4-5, and Dr. Hochberg's opinion was "based not just on the [plaintiff's] subjective *871 complaints." Hence, plaintiff argued that summary judgment had to be denied.

The motion judge denied summary judgment. He concluded that AICRA "essentially rules out almost all motions for summary judgment once the doctor says that the condition is ... objectively ... manifested by some objective evidence, and causally related to the accident, and indicates that the condition is ... permanent in the sense that it will not be cured ... by further treatment."

II.

In 1997, New Jersey's legislative and executive branches sought to reform the no-fault system. See Weidner and Canavan, supra, at 124-25. The Legislature created the Joint Committee on Automobile Insurance Reform ("Committee") to develop comprehensive reforms to the no-fault law, including the verbal threshold. The Committee's primary task was to lower the cost of automobile insurance. See Testimony From the Commissioner of Banking and Insurance and Invited Witnesses Before the Joint Committee on Automobile Insurance Reform (February 23, 1998)(testimony of Elizabeth E. Randall, Commissioner of the New Jersey Department of Banking and Insurance). Governor Whitman issued a conditional veto of the first bill (S-3) to pass both houses. See Conditional Veto Message of Governor Whitman for Senate Bill No. 3 (April 27, 1998). A substituted bill was thereafter passed by both houses, and on May 19, 1998, Governor Whitman signed the bill. As thus enacted, AICRA took effect for all insurance policies issued on or after March 22, 1999.

AICRA revamped New Jersey's no-fault law.

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808 A.2d 868, 354 N.J. Super. 578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rios-v-szivos-njsuperctappdiv-2002.