NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2791-15T2
JACQUELINE LUCA and
ERNESTO LUCA,
Plaintiffs-Appellants,
v.
GEICO INDEMNITY COMPANY,
Defendant-Respondent.
__________________________________________
Submitted May 4, 2017 – Decided July 11, 2017
Before Judges O'Connor, Whipple and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No. L-
4244-13.
Gay, Chacker & Mittin, P.C., attorneys for
appellants (Brian S. Chacker, on the brief).
Law Office of Eric Bennett, attorneys for
respondent (Beth M. Csontos, on the brief).
PER CURIAM
In this automobile negligence action, plaintiff Jacqueline
Luca and her spouse, Ernesto Luca, appeal from a November 6,
2015 Law Division order granting defendant Geico Indemnity
Company summary judgment dismissal of Ms. Luca's claim for non-
economic damages. The dismissal was premised upon the trial
court's determination Ms. Luca's injuries did not satisfy the
requirements of the limitation on lawsuit threshold established
by the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A.
39:6A-1.1 to -35, specifically N.J.S.A. 39:6A-8(a) and 8.1(a).
Plaintiffs also appeal from the December 18, 2015 order denying
their motion for reconsideration of the November 6, 2015 order.1
We affirm.
I
We glean the following from the summary judgment record.
In 2011, plaintiff was rear-ended by an uninsured motorist; it
is undisputed plaintiff was not at fault for the accident. At
that time, plaintiff was insured under an automobile liability
insurance policy issued by defendant, which contained a
provision providing uninsured motorist benefits. In 2013,
plaintiff filed a complaint against defendant seeking to recover
benefits under this provision to compensate her for the injuries
she sustained as a result of the accident; her spouse asserted a
per quod claim.
1
Unless otherwise indicated, for the balance of the opinion
the singular term "plaintiff" is used to refer to Jacqueline
Luca only.
2
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Plaintiff's policy was subject to the limitation on lawsuit
threshold, see N.J.S.A. 39:6A-8(a), -8.1(a). An insured who
opts for this limitation generally must show the following when
seeking to recover non-economic damages from the tortfeasor, or
from his or her automobile insurance carrier when seeking
benefits under an uninsured motorist policy. First, an insured
must show the existence of any claimed injury by objective,
medical evidence. Davidson v. Slater, 189 N.J. 166, 181 (2007).
The necessary objective evidence must be "derived from accepted
diagnostic tests and cannot be 'dependent entirely upon
subjective patient response.'" Ibid. (quoting N.J.S.A. 39:6A-
8(a)).
Second, an insured is required to show the injuries
sustained as a result of an accident were permanent "within a
reasonable degree of medical probability."2 N.J.S.A. 39:6A-8(a).
A "permanent injury" is defined in this statute as one that "has
not healed to function normally and will not heal to function
normally with further medical treatment." Ibid.
2
In the alternative, a plaintiff may show he or she has
"sustained a bodily injury which results in death;
dismemberment; significant disfigurement or significant
scarring; displaced fractures; [or] loss of a fetus." N.J.S.A.
39:6A-8(a). Here, clearly death is inapplicable, and plaintiff
is not alleging she sustained any of these other injuries.
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In October 2011, plaintiff's treating orthopedist, Lawrence
I. Barr, D.O., authored a report stating plaintiff sustained
various injuries as a result of the car accident. The injuries
were: a cervical sprain/strain; a lumbar sprain/strain; C-7
radiculopathy; intermittent lower extremity "complaints"; and
bilateral trapezial myofascitis. In addition, MRIs of
plaintiff's cervical and lumbar spines revealed bulging discs,
and an electromyogram (EMG) study of the left arm confirmed
cervical radiculopathy. Dr. Barr did not render an opinion on
the question of permanency.
Plaintiff's treating neurologist, Alexander M. Pendino,
D.O., authored two reports in August 2011. Dr. Pendino
determined plaintiff suffered from the same conditions found by
Dr. Barr, although further determined an EMG study he ordered
ruled out lumbar radiculopathy. Dr. Pendino also did not opine
on the question of permanency.
From August 2011 to February 2012, plaintiff was treated by
Barry A. Korn, D.O., for pain management. During this period,
Dr. Korn authored one report, dated August 23, 2011, about
plaintiff's condition. In addition, every time he treated
plaintiff over this six month period, he completed a written
assessment of her condition.
According to his report and written assessments,
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plaintiff suffered from myofascial pain syndrome; occipital
neuralgia; C-6 and C-7 radiculopathy; left median nerve
dysfunction; left ulnar nerve dysfunction and neuropathy; and
right ulnar nerve dysfunction. Dr. Korn also made note of the
fact radiologic studies revealed plaintiff had disc bulges on
her lumbar and cervical spines, and nerve function studies
revealed she had left carpal tunnel syndrome. Dr. Korn did
state plaintiff's injuries were caused by the accident, but he
did not address whether any of her injuries were permanent.
After plaintiffs filed their complaint, in August 2015 the
parties participated in mandatory arbitration conducted pursuant
to Rule 4:21A-1(a)(1). The arbitrator awarded plaintiffs
$30,000, in the aggregate, in damages. Dissatisfied with the
arbitrator's award, plaintiffs filed for a trial de novo. See
R. 4:21A-6(b)(1).
After the close of discovery, defendant filed a motion for
summary judgment dismissal. In opposition to the motion,
plaintiff did not submit any updated experts' reports. On
November 6, 2015, the court granted partial summary judgment and
dismissed plaintiff's claim for non-economic damages,
principally because plaintiff could not show she sustained a
permanent injury as defined by N.J.S.A. 39:6A-8(a). The court
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denied defendant's motion to dismiss plaintiff's economic
damages.
Plaintiff filed a motion for reconsideration, in which she
submitted a new report from Dr. Korn, dated November 20, 2015.
In that report, Dr. Korn stated "my initial diagnoses were
intended to convey that Ms. Luca's injuries should be considered
permanent." According to his latest report, the diagnoses he
intended to state were permanent included myofascial pain
syndrome; C-7 radiculopathy; carpal tunnel syndrome; and the
lumbar and cervical bulging discs.
Although he had not mentioned these conditions in either
his first report or his subsequent written assessments of
plaintiff's condition from August 2011 to February 2012, Dr.
Korn's November 20, 2015 report stated the following were also
permanent conditions: cervical, thoracic, and lumbosacral
sprain/strain; "intermittent lower extremity radicular
complaints"; and bilateral trapezii myofascitis.
As for the complaints he found to be permanent, Dr. Korn
did not state, either expressly or implicitly, whether his
definition of the term permanent was the same as that defined in
N.J.S.A. 39:6A-8(a), specifically, that the injuries were ones
that have "not healed to function normally and will not heal to
function normally with further medical treatment."
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The court denied plaintiff's motion for reconsideration,
finding plaintiff could have provided a report stating
plaintiff's injuries were permanent by the time the original
motion was heard. After the motion was denied, the parties
settled plaintiff's economic damages, resolving all outstanding
issues. This appeal ensued.
II
On appeal, plaintiff contends the trial court erred when it
granted defendant summary judgment on her claim for non-economic
damages, arguing there was sufficient evidence or, at the least,
a question of fact whether her injuries were permanent. We
disagree and affirm.
We review a trial court's grant of summary judgment de
novo, employing the same standard used by the trial court.
Davis v. Devereux Found., 209 N.J. 269, 286 (2012); Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). An
appellate court reviews "the grant of summary judgment 'in
accordance with the same standard as the motion judge.'" Globe
Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016) (quoting Bhagat
v. Bhagat, 217 N.J. 22, 38 (2014)). 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
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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).
Summary judgment may be denied "only where the party
opposing the motion has come forward with evidence that creates
a 'genuine issue as to any material fact challenged.' That
means a non-moving party cannot defeat a motion for summary
judgment merely by pointing to any fact in dispute." Brill,
supra, 142 N.J. at 529. The court must grant all legitimate
inferences in favor of the non-moving party. Id. at 536.
Here, before the close of discovery, plaintiff failed to
secure and serve any experts' reports stating she sustained a
permanent injury as defined by N.J.S.A. 39:6A-8(a). Although
the report plaintiff secured from Dr. Korn after partial summary
judgment was granted set forth conditions he claimed were
permanent, he failed to state these conditions were permanent as
that term is defined in the subject statute. That is, that her
injuries were of a kind that will not heal to function normally,
even with further medical treatment.
Defendant argues that, in addition, there is no objective
medical evidence of the existence of some of these conditions,
such as myofascial pain syndrome; lower extremity radicular
complaints; and sprain and strain of the cervical, thoracic, and
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lumbosacral spines. We note plaintiff did provide objective
evidence she has bulging discs, C-7 radiculopathy, and carpal
tunnel syndrome, and that these conditions were caused by the
car accident. However, in order to defeat summary judgment,
plaintiff was obligated to present an expert's opinion that her
injuries are permanent because they have not "healed to function
normally and will not heal to function normally with further
medical treatment." Because she failed to do so, we conclude
the November 6, 2015 order granting defendant summary judgment
on plaintiff's claim for non-economic damages was properly
entered.
The December 18, 2015 order denying plaintiff's motion for
reconsideration was also properly entered. Plaintiff failed to
show the court had either relied upon a "palpably incorrect or
irrational basis," or "failed to appreciate the significance of
probative, competent evidence." Cummings v. Bahr, 295 N.J.
Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria,
242 N.J. Super. 392, 401 (Ch. Div. 1990)). Plaintiff did
provide new evidence, but such evidence still failed to provide
the opinion necessary to establish her injuries cannot heal even
with additional medical treatment. Moreover, the new evidence
was available not only before the summary judgment motion was
decided, but before the close of evidence; thus, the new
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evidence failed to provide an appropriate basis for
reconsideration of the November 6, 2015 order. See Del Vecchio
v. Hemberger, 388 N.J. Super. 179, 189 (App. Div. 2006);
Cummings, supra, 295 N.J. Super. at 384.
To the extent we have not addressed any of plaintiffs'
remaining arguments, it is because they are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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