DiProspero v. Penn

Decision Date14 June 2005
PartiesChristina DiPROSPERO, Plaintiff-Appellant, v. Barbara J. PENN and Martha M. Turner, Defendants Respondents, and John Doe(s), jointly, severally and/or in the alternative, Defendant.
CourtNew Jersey Supreme Court

Franklin P. Solomon, New York City argued the cause for appellant (Weitz & Luxenberg, attorneys).

Susan Stryker, Trenton argued the cause for respondents (Sterns & Weinroth, attorneys; Ms. Stryker and Mitchell A. Livingston, on the brief).

Cynthia M. Craig, Chatham argued the cause for amicus curiae Trial Attorneys of New Jersey (Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, attorneys).

Richard Wildstein, Passaic argued the cause for amicus curiae Association of Trial Lawyers of America-New Jersey (Goldstein, Ballen, O'Rourke & Wildstein, attorneys).

Lewis Stein argued the cause for amicus curiae New Jersey State Bar Association (Edwin J. McCreedy, President, attorneys; Mr. Stein and Sharon A. Balsamo, of counsel).

Robert Peter Connell argued the cause for amicus curiae Independent Insurance Agents & Brokers of New Jersey (Connell, Connell & Camassa, attorneys; Mr. Connell and Michael J. Deem, on the brief).

Thomas P. Weidner, Princeton argued the cause for amici curiae Insurance Council of New Jersey, American Insurance Association and Property Casualty Insurers Association of America (Windels Marx Lane & Mittendorf, attorneys; Mr. Weidner, David F. Swerdlow and Antonio J. Casas, on the brief).

Justice ALBIN delivered the opinion of the Court.

The 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, provides automobile insurance policyholders with a choice: lower premium payments in exchange for Limiting their right (and the right of those covered by the policy) to sue for noneconomic damages if injured in an accident.1 That option, known as the "limitation on lawsuit" threshold, restricts an accident victim covered by the policy2 from suing a defendant for noneconomic damages unless she suffers "a bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." N.J.S.A. 39:6A-8(a).

The 1988 verbal threshold, the predecessor to the limitation on lawsuit threshold, required the accident victim to prove that her injury satisfied at least one of nine statutory categories in order to qualify for recovery of noneconomic damages. L. 1988, c. 119, § 6. In Oswin v. Shaw, we concluded that under the verbal threshold, in addition to proving that her injury fit within one of the applicable statutory categories, the accident victim had to prove that she suffered a serious life impact. 129 N.J. 290, 318, 609 A.2d 415 (1992). AICRA's limitation on lawsuit threshold, which is significantly different from the verbal threshold, has only six categories and does not contain language requiring that an accident victim prove that the injury caused a serious life impact.

In this appeal, we must decide whether Oswin's serious life impact standard applies to AICRA's limitation on lawsuit threshold. The plain language of the statute, a comparative analysis of the old and new lawsuit thresholds, and a survey of AICRA's legislative history persuade us that the Legislature did not intend to engraft the Oswin language onto the limitation on lawsuit threshold. We conclude that an automobile accident victim who is subject to the threshold and sues for noneconomic damages has to satisfy only one of AICRA's six threshold categories and does not have the additional requirement of proving a serious life impact.

I.

The trial court granted, and the Appellate Division affirmed, defendant's motion for summary judgment. Accordingly, we review the facts in the light most favorable to plaintiff. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995).

On November 30, 1999, defendant Barbara Penn was driving a pickup truck owned by defendant Martha Turner. At the Route 73 traffic circle in the Borough of Berlin, Penn failed to observe a "yield" sign and crashed into a car operated by plaintiff Christina DiProspero. As a result of the accident, the twenty-one-year-old plaintiff developed back and neck pain. Six days later, plaintiff visited her family physician, Dr. Harris Twersky, who prescribed a treatment plan of stretching and exercise. Plaintiff followed the plan for four months, but her back pain grew progressively worse, and she began to suffer from jaw pain and headaches.

In April 2000, plaintiff consulted with Dr. Steven Scafidi, a chiropractor, who recorded plaintiff's complaints of jaw grinding and of neck, shoulder, and mid-and lower-back pain. Dr. Scafidi x-rayed plaintiff and diagnosed her as having "a TMJ3 dysfunction" and "a strain/sprain injury that is accompanied by ligamentous instability, myofascitis4 and localized evidence of nerve root irritation." Plaintiff also underwent magnetic resonance imaging (MRI) scans of her cervical, lumbar, and thoracic spinal areas at MRImaging of South Jersey in Marlton. According to Dr. Scafidi, those scans showed that plaintiff's "discs seem[ed] to be bulging" In all three spinal areas.5 Plaintiff received chiropractic treatment for two years, two to three times each week, until her insurance carrier stopped paying for the visits.

Dr. Scafidi recommended that plaintiff see a TMJ specialist to treat her jaw pain. In 2000, plaintiff met with Dr. Melvyn Blake, D.D.S., who noted pain, tenderness, spasm, and clicking noises in her jaw. Dr. Blake prescribed an intra-oral splint and a treatment regimen, which continued for two years until plaintiff's insurance carrier declined to pay for additional visits.

After the accident, plaintiff's lifestyle changed considerably. She had difficulty chewing hard foods and had to reduce her vigorous three-day-a-week regimen at the gym to light workouts three times a month. She suffered soreness in her back and neck when exercising and endured pain while sitting in her college classes. Her injuries, however, were not so debilitating that she could not take road trips or help around the house with laundry and dishes.

Plaintiff filed a negligence lawsuit against defendants, seeking damages for, among other things, pain and suffering. Plaintiff was covered by a no fault insurance policy subject to the limitation on lawsuit threshold under N.J.S.A. 39:6A-8(a). Plaintiff claimed that she suffered permanent injuries to body parts that "ha[d] not healed to function normally and will not heal to function normally with further medical treatment." N.J.S.A. 39:6A-8(a). As required by N.J.S.A. 39:6A-8(a), plaintiff submitted certifications by Dr. Scafidi and Dr. Blake attesting to the permanency of the injuries to her cervical, thoracic, and lumbar spine, and her temporomandibular joint. Both doctors certified that those injuries were proximately caused by the automobile accident.

After the completion of discovery, defendants moved for summary judgment on the ground that there was no evidence that plaintiff's injuries had a serious impact on her life and, therefore, her suit was barred by the limitation on lawsuit threshold. The trial court agreed and granted the motion.6

Plaintiff appealed, arguing that the serious life impact test did not apply to AICRA. In an unpublished per curiam opinion with one judge dissenting, the Appellate Division affirmed the grant of summary judgment because plaintiff "failed to establish that the injuries she sustained had a serious impact on her life" in accordance with Oswin, supra.

The panel followed the reasoning of James v. Torres, 354 N.J.Super. 586, 588, 808 A.2d 873 (App.Div.2002),

certif. denied, 175 N.J. 547, 816 A.2d 1049 (2003), and Rios v. Szivos, 354 N.J.Super. 578, 580, 808 A.2d 868 (App.Div.2002), which held that Oswin's serious life impact prong survived the legislative amendments that resulted in AICRA.

In dissenting, Judge Weissbard adopted the analysis in Compere v. Collins, 352 N.J.Super. 200, 202-13, 799 A.2d 721 (Law Div.2002), in which Judge Lyons concluded that the language and legislative history of AICRA, as well as a comparison of AICRA to its predecessor statute, revealed that Oswin's serious life impact standard did not apply to the limitation on lawsuit threshold. Judge Weissbard found no ambiguity in the plain language of the statute that required delving into legislative history. Finally, Judge Weissbard noted that "[i]f the Legislature failed to effectuate its true intent (whatever that may be), it is for the Legislature, not us, to correct the situation."

Plaintiff appealed as of right based on the dissent in the Appellate Division. R. 2:2-1(a)(2). We also granted amicus curiae status to the Trial Attorneys of New Jersey, the Association of Trial Lawyers of America-New Jersey, the New Jersey State Bar Association, the Independent Insurance Agents & Brokers of New Jersey, the Insurance Council of New Jersey, the American Insurance Association, and the Property Casualty Insurers Association of America. We now reverse.

II.

This State's more than thirty-year history with no fault insurance has been marked by legislative efforts to control the rising cost of automobile insurance by placing restrictions on an accident victim's right to sue for noneconomic damages. In 1972, the Legislature enacted the "`New Jersey Automobile Reparation Reform Act,'" N.J.S.A. 39:6A-1, commonly referred to as the "No Fault Act." Caviglia v. Royal Tours of Am., 178 N.J. 460, 466, 842 A.2d 125 (2004). The No Fault Act ushered in "a system of first-party self-insurance" that provided an automobile accident victim prompt "payment of out-of-pocket medical expenses" without regard to fault. Caviglia, supra, 178 N.J. at 466, 842 A.2d 125. One of the goals of the Act was to...

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