MARLENE MORGAN VS. PROGRESSIVE INSURANCE COMPANY, ETC. (L-4987-13, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2964-15T2

MARLENE MORGAN,

Plaintiff-Respondent,

v.

PROGRESSIVE INSURANCE COMPANY
and/or PROGRESSIVE GARDEN
STATE INSURANCE COMPANY,

Defendant-Appellant.
______________________________________________

Argued October 3, 2017 – Decided November 8, 2017

Before Judges Yannotti, Carroll and Mawla.

On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No.
L-4987-13.

Jennifer A. Hindermann argued the cause for
appellant (Cooper Maren Nitsberg Voss &
DeCoursey, attorneys; Ms. Hindermann, on the
briefs).

Michael H. Foster argued the cause for
respondent (Stark & Stark, attorneys; Mr.
Foster, on the brief).

PER CURIAM
 Plaintiff Marlene Morgan asserted a claim against defendant

Progressive Insurance Company and/or Progressive Garden State

Insurance Company for underinsured motorist (UIM) coverage arising

from a motor vehicle accident, in which she allegedly sustained

personal injuries. Defendant appeals from the judgment for

plaintiff entered by the trial court on April 1, 2016. We affirm.

I.

On November 28, 2008, plaintiff was a passenger in a vehicle

being driven by Gregory Moten westbound on Evesham Road in Cherry

Hill. At the time, Ashoke Das was operating a vehicle in the

opposite direction. According to plaintiff, Das attempted to make

a left turn onto Caldwell Road in front of the Moten vehicle.

Das's vehicle struck the front of the Moten vehicle, and plaintiff

sustained certain injuries.

Thereafter, plaintiff filed suit against Das and settled her

claim against him for the limits of his insurance coverage,

$15,000. Plaintiff then filed this action against defendant

seeking UIM benefits. At the time of the accident, plaintiff had

an automobile policy with defendant, which provided $50,000 in UIM

coverage.

The parties stipulated that Das was solely responsible for

the accident, but defendant maintained plaintiff had not

established she sustained injuries that met the limitation-on-

2 A-2964-15T2
lawsuit threshold in N.J.S.A. 39:6A-8(a), as amended by the

Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-

1.1 to -35. The matter was tried before a jury.

At the trial, plaintiff testified that she sustained multiple

injuries in the November 28, 2008 accident. Plaintiff stated that

she worked for an entity that provides services to individuals

with disabilities. She said she had been in an auto accident in

November 2007 and sustained injuries to her neck and lower back.

Since the accident occurred while she was on the job, she had to

seek health care through her employer's occupational health

services.

Plaintiff stated that by the end of 2007, she had completed

treatment for the November 2007 accident. Plaintiff said she did

not have any continuing problems with her neck, lower back, middle

back, or upper back. She stated that she was able to return to

work without any restrictions. She also stated that she was able

to go back to her usual activities, which included spending time

with her grandchildren, performing household chores, and bowling.

Plaintiff further testified that in the days after the

November 28, 2008 accident, she woke up and could not move her

neck and upper back. She went to see her primary care physician,

and later saw a chiropractor. She told the chiropractor that she

had pain in her neck and upper back, and at times pain radiated

3 A-2964-15T2
down her left arm. In addition, plaintiff had painful spasms in

her back and chest every day.

Plaintiff treated with the chiropractor for about two years.

She believed the treatment had provided some relief but the pain

returned. The chiropractor referred plaintiff for tests and MRIs

were performed. Plaintiff testified that the tests showed she "had

a bulging dis[c] or something like that" in her neck and upper

back.

Plaintiff was referred to an orthopedist, who prescribed

medication and an injection, which provided some relief for about

eight months. The doctor told plaintiff she could have additional

injections or surgery. Plaintiff elected not to have surgery. She

testified that she continued to work because she had to do so.

She said she "just worked through the pain."

Plaintiff stated that the November 28, 2008 accident had

limited her usual activities. She testified that she spends time

with her grandchildren, but she is no longer able to pick them up

when she wants to. Plaintiff enjoys bowling and participated in a

bowling league, but can no longer engage in that activity.

Plaintiff said she does not perform household chores as she used

to. She explained that someone must accompany her to the grocery

store and laundromat. She also said she lives with neck and upper

back pain every day.

4 A-2964-15T2
 Plaintiff further testified that after the November 28, 2008

accident, she sustained other injuries. While working, plaintiff

strained her elbow when assisting an individual with cerebral

palsy. She also suffered an electric shock when checking a smoke

alarm in the workplace. After these incidents, plaintiff saw

doctors, but she did not require further medical care for her neck

or back.

Plaintiff also had an accident during a work-related outing

while riding in a bumper car with a client. Plaintiff hurt her

leg, knee, and ankle. She went to a doctor, but testified that she

did not hurt her neck or back. In addition, plaintiff slipped and

fell backwards while bowling. She testified, however, that she did

not injure her neck or back when she fell.

At the trial, plaintiff presented the videotaped testimony

of her medical expert, Dr. Gary Goldstein, who stated that

plaintiff had a cervical disc herniation, which was produced or

made symptomatic by the November 28, 2008 accident. Dr. Goldstein

testified that plaintiff was permanently symptomatic as a result

of the accident.

The doctor said plaintiff had been in "some kind of accident"

in 2007 and plaintiff had injured her neck and back, but she did

not have any ongoing residual complaints. The doctor testified

that when plaintiff was referred to him, he conducted a general

5 A-2964-15T2
physical examination. He also performed various tests, including

range-of-motion tests.

The doctor explained that in February 2009, plaintiff had

MRIs of her neck as well as her mid- and lower-back. The doctor

reviewed the reports of the MRIs, and stated that plaintiff had

"some minor bulging throughout her neck" but the bulge at the C5-

6 level of the spine was larger. He thought the MRI showed a "low

grade herniation," which was consistent with plaintiff's

complaints of central neck pain with pain radiating to the arm.

Defendant presented the videotaped testimony of Dr. Brian K.

Zell, who performed an independent medical evaluation of

plaintiff. Dr. Zell examined plaintiff and reviewed the

radiographic studies. He testified that plaintiff had been

involved in an auto accident on November 28, 2008, and sustained

a possible cervical strain and possible strain to the lower back.

Dr. Zell opined that plaintiff had degenerative disc disease

of the cervical spine, which was a pre-existing condition

unrelated to the November 28, 2008 accident. He further testified

that plaintiff had degenerative disc disease to the lower back,

particularly at the L4-5 level of the spine, which also was

unrelated to the accident. Dr. Zell stated that he found no

evidence of cervical or lumbar radiculopathy, meaning

6 A-2964-15T2
"reproducible findings that traveled" from the neck into her arms,

or from her lower back into her legs.

At the conclusion of the trial, plaintiff requested a jury

instruction on aggravation of a pre-existing condition. The judge

granted the request over defendant's objection. In addition,

defendant sought an adverse inference with respect to the loss of

the litigation file pertaining to the workers' compensation claim

plaintiff asserted following the November 10, 2007 accident. The

judge denied the application.

The jury found that plaintiff had sustained a permanent injury

that was proximately caused by the November 28, 2008 accident, and

awarded plaintiff $60,000 in damages. The judge molded the jury

verdict to reflect the $50,000 limit on plaintiff's UIM coverage,

and reduced that amount by the $15,000 plaintiff had recovered

from Das.

Thereafter, defendant filed a motion for a new trial. The

judge heard oral argument on February 5, 2016, and on that day

entered an order denying the motion.

Plaintiff also sought attorney's fees, costs, and interest

under the offer of judgment rule. R. 4:58-1(a); R. 4:58-2(b).

Prior to trial, plaintiff had made an offer of judgment for

$29,000. The judge granted the application and ordered defendant

to pay plaintiff attorney's fees in the amount of $15,050, costs

7 A-2964-15T2
and expenses totaling $4,778, and interest of $1,036. These amounts

were added to plaintiff's modified award, resulting in a total

judgment of $55,864. This appeal followed.

On appeal, defendant argues that: (1) the trial judge

improperly precluded defendant from using plaintiff's statements

in certain medical records for impeachment; (2) the judge erred

by providing the jury with a charge for aggravation of a pre-

existing condition, and by failing to tailor the charge to the

facts of this case; (3) the judge should have provided an adverse

inference charge regarding the loss of the litigation file

pertaining to the plaintiff's prior accident; (4) the judge should

have instructed the jury that in an action under AICRA's

limitation-on-lawsuit threshold, range-of-motion tests are not

recognized as objective credible evidence of a permanent injury;

and (5) defendant was entitled to judgment notwithstanding the

verdict.

II.

We turn first to defendant's argument that the trial judge

erred by precluding defendant's counsel from questioning plaintiff

about statements attributed to her in a doctor's report. As noted

at trial, plaintiff testified that as a result of the November 28,

2008 accident, she has experienced limitations in certain

8 A-2964-15T2
activities, including the performance of household chores and

bowling.

On cross-examination, defendant's attorney began to question

plaintiff about complaints attributed to her in reports by Ralph

G. Cataldo, a doctor of osteopathic medicine, dated February 1,

2012, and June 7, 2013. It appears that Dr. Cataldo examined

plaintiff as a result of workplace injuries that plaintiff

sustained after the November 28, 2008 accident. The reports were

apparently obtained for the purpose of asserting workers'

compensation claims.

The first report related to the injuries plaintiff sustained

when she assisted a client and when she checked the smoke detector

in the workplace. The second report related to the bumper-car

accident. Both reports list plaintiff's complaints, which include

limitations on her ability to perform household chores and engage

in bowling.

Plaintiff's attorney objected to the use of Dr. Cataldo's

reports for cross-examination. The judge sustained the objection,

finding that the statements attributed to plaintiff were hearsay.

The judge stated that if defendant wanted to present the

statements, defendant had to present Dr. Cataldo as a witness.

On appeal, defendant argues that the judge erred by precluding

its attorney from questioning plaintiff regarding the complaints

9 A-2964-15T2
attributed to her in Dr. Cataldo's reports. Defendant asserts that

the statements were admissible under the hearsay exception in

N.J.R.E. 803(b)(1) for statements of a party opponent. Defendant

argues that the statements were admissible because they did not

involve any complex medical diagnosis.

The trial court's evidentiary rulings are reviewed under an

abuse-of-discretion standard. Hisenaj v. Kuehner, 194 N.J. 6, 12

(2008). However, we apply a de novo standard of review in

determining if the trial court correctly interpreted and applied

the evidence rules. Konop v. Rosen, 425 N.J. Super. 391, 401 (App.

Div. 2012) (citing Pressler & Verniero, Current N.J. Court Rules,

comment 4.6 on R. 2:10-2 (2012); State v. Darby, 174 N.J. 509, 518

(2002)).

The statements attributed to plaintiff in Dr. Cataldo's

reports are hearsay because defendant intended to offer the

statements to prove that plaintiff reported those complaints to

Dr. Cataldo. See N.J.R.E. 801(c) (defining hearsay as a statement,

"other than one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the

matter asserted.").

Defendant correctly notes that N.J.R.E. 803(b)(1) provides

an exception to the rule against admission of hearsay for

statements by a party opponent. However, the statements were

10 A-2964-15T2
contained in a doctor's reports, which were apparently obtained

for the purpose of litigating workers' compensation claims.

Defendant did not, however, lay a proper foundation for the

admission of the reports as business records under N.J.R.E.

803(c)(6). Defendant did not establish that the documents were

made in the regular course of business, or that it was the regular

practice of the business to make the record. Hahnemann Univ. Hosp.

v. Dudnick, 292 N.J. Super. 11, 17 (App. Div. 1996).

We therefore conclude that the trial judge did not abuse his

discretion by precluding defendant from questioning plaintiff

about the statements in the reports.

III.

Next, defendant argues that the trial judge erred by charging

the jury on aggravation of a pre-existing condition. The

aggravation charge states in relevant part that

If you find that [plaintiff's] preexisting
illness/injury(ies)/condition was not causing
him/her any harm or symptoms at the time of
the accident, but that the preexisting
condition combined with injuries incurred in
the accident to cause him/her damage, then
[plaintiff] is entitled to recover for the
full extent of the damages he/she sustained.

[Model Jury Charge (Civil), 8.11F "Aggravation
of the Preexisting Disability" (1997).]

11 A-2964-15T2
 A. Lack of Notice of Claim of Aggravation.

Defendant argues the judge erred by granting plaintiff's

request for the charge because plaintiff did not plead or place

defendant on notice that she was pursuing a claim for aggravation

of a pre-existing condition. We disagree. The judge did not err

by finding that defendant was on notice that plaintiff was

asserting such a claim.

Here, defendant served interrogatories upon plaintiff and

plaintiff was asked if she was claiming that she sustained an

injury in the subject accident that aggravated a pre-existing

condition. In her answer, plaintiff objected to the question on

the ground that it asked for a legal or medical opinion, which she

was not qualified to provide. Nevertheless, without waiving that

objection, plaintiff stated that she would rely upon the opinion

and testimony of her medical expert.

In his report, Dr. Goldstein stated among other things that

plaintiff had "a cervical disc herniation or its equivalent that

was produced or made symptomatic by the November 28, 2008"

accident. As the judge determined, Dr. Goldstein's report was

sufficient to place defendant on notice of a potential claim for

aggravation of a pre-existing condition. Therefore, we reject

defendant's contention that it did not have notice of the claim.

12 A-2964-15T2
 B. Comparative Analysis.

Defendant also argues that the jury instruction on

aggravation of a pre-existing condition was not warranted because

Dr. Goldstein failed to provide a comparative analysis

distinguishing the injuries sustained in the subject accident with

any prior injuries to the same body part. Defendant contends this

comparative medical analysis was required by Davidson v. Slater,

189 N.J. 166 (2007). Again, we disagree.

In Davidson, the Court noted that in a personal injury action

that involves the AICRA limitation-on-lawsuit threshold, a

plaintiff must establish that he or she sustained a bodily injury

resulting from the "operation . . . or use of" an automobile, that

results in one of the enumerated categories of injuries, including

"a permanent injury within a reasonable degree of medical

probability." Id. at 186 (quoting N.J.S.A. 39:6A-8(a)). The Court

explained that when a plaintiff claims he or she sustained a

permanent injury that aggravated a pre-existing condition, the

plaintiff must present evidence comparing the injury sustained in

the subject accident with injuries previously sustained to the

same body parts. Id. at 185-86.

The Davidson Court noted, however, that when a plaintiff does

not assert an aggravation claim, the plaintiff can carry his or

her burden by demonstrating that the subject accident caused a

13 A-2964-15T2
permanent injury "without having to exclude all prior injuries to

the same body part." Id. at 170. The Court stated that

[i]f defendant raises a genuine factual issue
about the causation of plaintiff's claimed
injuries by pointing to other injuries the
plaintiff may have experienced, that disputed
issue of causation is for the fact-finder to
decide, except in those unusual instances when
no reasonable fact-finder could conclude that
the permanent injury was caused by the subject
accident.

[Ibid.]

On appeal, defendant argues that plaintiff requested the

aggravation charge and therefore was required to present the

comparative analysis required by Davidson. Defendant asserts that

Dr. Goldstein's analysis failed as a matter of law because he

based his analysis of the pre-existing condition solely upon

plaintiff's subjective complaints. Defendant asserts that the

doctor failed to review a single record pre-dating the November

28, 2008 accident.

We are not persuaded by these arguments. In our view, Dr.

Goldstein provided a sufficient comparison of plaintiff's pre-

existing condition with the injuries allegedly sustained in the

subject accident. In his videotaped testimony, Dr. Goldstein

testified that plaintiff had some low grade degenerative changes

in her neck, which were "probably existent" before the accident.

14 A-2964-15T2
 The doctor emphasized that plaintiff was asymptomatic, and

she either had a new disc bulge or low grade herniation "that was

produced by this accident or whatever was there predating this

accident was extended or made symptomatic[.]" The doctor based his

analysis in part on the MRIs performed after the November 28, 2008

accident, which he indicated showed a pre-existing degenerative

condition.

Moreover, defendant presented testimony from Dr. Zell who

opined that plaintiff possibly sustained a lumbar strain in the

November 28, 2008 accident. He said plaintiff had degenerative

disc disease in the cervical and lumbar spine, which were pre-

existing conditions and unrelated to the subject accident. He

based his opinions on his physical examination of plaintiff; review

of the records pertaining to the November 28, 2008 accident,

including the MRIs; and records pertaining to the November 10,

2007 accident, including a CT scan of plaintiff's neck and x-rays

of her lower back.

Considering the evidence as a whole, we are convinced that

the judge did not err by charging the jury on aggravation of a

pre-existing condition. Dr. Goldstein and Dr. Zell both agreed

that plaintiff had a pre-existing condition, although they

disagreed as to whether plaintiff sustained a permanent injury to

her neck and lower back in the subject accident.

15 A-2964-15T2
 While Dr. Goldstein did not review the diagnostic studies

that pre-dated the November 28, 2008 accident, he was able to base

his opinion as to plaintiff's pre-existing condition in part upon

the diagnostic studies performed after that accident. Dr. Zell

also opined that plaintiff had a pre-existing disc disease, which

pre-dated the subject accident. In light of all of the evidence,

the judge properly instructed the jury on aggravation of a pre-

existing condition.

C. Request for Modification of Aggravation Charge.

Defendant further argues that the judge erred by denying its

request to modify the aggravation charge. According to defendant,

the judge should have instructed the jury that the charge was

given merely to assist the jury in calculating damages, and not

as a means to determine if plaintiff had shown that she sustained

a permanent injury proximately caused by the November 28, 2008

accident. Again, we disagree.

Here, the judge correctly found that the model jury charge

on permanency was sufficient to address defendant's concern. The

judge noted the jury had to find that plaintiff had a permanent

injury, whether it was an aggravation of a pre-existing condition

or not. The instructions the judge later provided stated in

pertinent part:

16 A-2964-15T2
 Now in order to recover damages in this
case, the plaintiff must prove by a
preponderance of the evidence that she
sustained injuries which were permanent. And
she must do that within a reasonable degree
of medical probability. If you find that
plaintiff[']s injuries caused by the accident
were not permanent, your verdict must be for
the defendant. If you find the injuries caused
by the accident [are] permanent, then your
verdict must be for the plaintiff.

An 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. Plaintiff must prove this claim
through objective, credible medical evidence.
Objective proof means the injury must be
verified by physical examination, or medical
testing, and cannot be based solely upon the
plaintiff's subjective complaints.

We conclude the judge's instructions clearly informed the

jury that plaintiff could not recover damages unless she proved

that she sustained a permanent injury that was proximately caused

by the subject auto accident. Therefore, the judge did not err by

denying defendant's motion to modify the charge on aggravation of

a pre-existing condition.

IV.

Next, defendant argues that the judge erred by denying its

request to bar plaintiff from arguing that range-of-motion tests

are objective tests upon which a jury could rely in determining

whether plaintiff sustained a permanent injury. Defendant contends

17 A-2964-15T2
that the entire theory of plaintiff's case was based on the

assertion that plaintiff suffers pain and decreased range of

motion. According to defendant, Davidson precludes a plaintiff

from establishing a permanent injury under the AICRA limitation-

on-lawsuit threshold based on range-of-motion tests and subjective

symptomology.

We are convinced that this argument is without sufficient

merit to warrant extended comment. R. 2:11-3(e)(1)(E). As noted

previously, the judge's final instructions to the jury made clear

that plaintiff had to prove she sustained a permanent injury with

objective, credible evidence, and her injury could not be proven

by subjective complaints alone.

Moreover, Dr. Goldstein's opinion was not based solely on

range-of-motion tests. As noted, the doctor based his opinion in

part upon his review of the MRIs. Therefore, the judge did not err

by denying defendant's application for an instruction to the jury

regarding range-of-motion tests.

V.

In addition, defendant argues that the judge erred by refusing

to provide an adverse inference charge with regard to plaintiff's

failure to produce certain documents relating to the workers'

compensation claim she asserted as a result of the November 10,

2007 auto accident. Defendant maintains the charge was warranted

18 A-2964-15T2
due to the intentional or negligent disposal of evidence. We

disagree.

"Spoliation typically refers to the destruction or

concealment of evidence by one party to impede the ability of

another party to litigate a case." Jerista v. Murray, 185 N.J.

175, 201 (2005) (citing Rosenblit v. Zimmerman, 166 N.J. 391, 400-

01 (2001)). The duty to preserve evidence arises when (1) there

is pending or likely litigation and knowledge of this fact by the

alleged spoliating party, (2) the evidence is relevant to

litigation, and (3) the opposing party would be prejudiced by the

destruction or disposal of the evidence. Aetna Life and Cas. Co.

v. Imet Mason Contractors, 309 N.J. Super. 358, 366 (App. Div.

1998) (quoting Hirsch v. General Motors Corp., 266 N.J. Super.

222, 250-51 (Law Div. 1993)).

"In civil litigation, depending on the circumstances,

spoliation of evidence can result in a separate tort action for

fraudulent concealment, discovery sanctions, or an adverse trial

inference against the party that caused the loss of evidence."

Jerista, supra, 185 N.J. at 201-02 (citing Rosenblit, supra, 166

N.J. at 401-06). "The spoliation inference permits the jury to

infer that the evidence destroyed or concealed would not have been

favorable to the spoliator." Id. at 202 (citing Rosenblit, supra,

166 N.J. at 401-02).

19 A-2964-15T2
 The instruction should be provided if a party establishes

that the other party "improperly caused the loss of the evidence."

Davis v. Barkaszi, 424 N.J. Super. 129, 148 (App. Div. 2012)

(citing Cockerline v. Menendez, 411 N.J. Super. 596, 621 (App.

Div.), certif. denied, 201 N.J. 499 (2010)). Furthermore, the

inference may be drawn against the party that negligently or

intentionally failed to preserve the evidence. Rosenblit, supra,

166 N.J. at 401-02.

Here, the judge did not err by refusing to provide an adverse

inference charge to the jury. The record shows that defendant

asked plaintiff to produce the litigation file related to the

plaintiff's November 10, 2007 accident. Plaintiff's attorney

stated that the records had been placed at a private, off-site

storage facility, but they were either misplaced or could not be

found.

The judge found that defendant had not shown that plaintiff

had intentionally or negligently failed to preserve evidence. The

record supports that finding. Under the circumstances, an adverse

inference charge was not warranted.

VI.

Defendant further argues that it was entitled to judgment

notwithstanding the verdict. Defendant contends plaintiff

presented insufficient objective credible medical evidence to

20 A-2964-15T2
support the jury's determination that plaintiff suffered a

permanent injury, as that term is defined in N.J.S.A. 39:6A-8(a),

which was proximately caused by the November 28, 2008 accident.

Under Rule 4:40-1, a party may move for entry of judgment

either "at the close of all the evidence or at the close of the

evidence offered by an opponent." Rule 4:40-2(b) states that if

the motion for judgment is denied, it may be renewed in accordance

with the procedure under Rule 4:49-1 for a new trial. Rule 4:40-

2(b) also states that every motion for a new trial "shall be deemed

to include, in the alternative, a renewal of any motion for

judgment made by that party at the close of the evidence."

Here, defendant did not formally move for entry of judgment

after plaintiff presented her evidence or at the close of all the

evidence. Defendant did, however, file a motion for a new trial.

That motion was premised in part upon defendant's assertion, which

was made at various times throughout the trial, that plaintiff had

not presented sufficient objective credible evidence to support

her claim under N.J.S.A. 39:6A-8(a). The judge denied the motion.

A motion for judgment notwithstanding the verdict under Rule

4:40-2 must be denied if the evidence, together with the legitimate

inferences therefrom, could sustain a judgment in favor of a party.

Lanzet v. Greenberg, 126 N.J. 168, 174 (1991). In considering such

a motion, the court must accept "as true all the evidence which

21 A-2964-15T2
supports the position of the party defending against the motion

and [accord that party] the benefit of all inferences which can

reasonably and legitimately be deduced therefrom . . . ."

Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (quoting Estate of

Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)). If "reasonable

minds could differ, the motion must be denied." Ibid. (quoting

Estate of Roach, supra, 164 N.J. at 612). When reviewing a trial

court's order on the motion, we apply the same standard. See Frugis

v. Bracigliano, 177 N.J. 250, 269 (2003).

We are convinced that plaintiff presented sufficient evidence

to support the jury's finding that plaintiff suffered a permanent

injury, as defined in N.J.S.A. 39:6A-8(a), which was proximately

caused by the November 28, 2008 accident. Defendant's arguments

to the contrary are without sufficient merit to warrant discussion.

R. 2:11-3(e)(1)(E).

Affirmed.

22 A-2964-15T2