Falcone v. Branker

• Decision Date: 19 June 1975
• Parties: Nicholas FALCONE, Plaintiff, v. Joan P. BRANKER et al., Defendants. Jeanette FALCONE, Plaintiff, v. Joan P. BRANKER et al., Defendants, and Valerie A. JOHNSON and Keith Hall, Defendants and Third-Party Plaintiffs, v. Nicholas A. FALCONE, Third-Party Defendant.
• Court: New Jersey Superior Court

Page 137

135 N.J.Super. 137

342 A.2d 875

Nicholas FALCONE, Plaintiff, v. Joan P. BRANKER et al., Defendants.

Jeanette FALCONE, Plaintiff, v. Joan P. BRANKER et al., Defendants, and Valerie A. JOHNSON and Keith Hall, Defendants and Third-Party Plaintiffs, v. Nicholas A. FALCONE, Third-Party Defendant.

Superior Court of New Jersey,

Law Division.

June 19, 1975.

Frederick A. Onore, North Plainfield, for plaintiff, Nicholas Falcone, (Onore & Onore, North Plainfield, for attorneys).

Marilyn R. Y. Harlem, East Orange, for defendants and third-party plaintiffs Valerie A. Johnson and Keith W. Hall (John W. Taylor, East Orange, attorney).

George W. Kenny, Newark, for defendant Joan P. Branker (McElroy, Connell, Foley & Geiser, Newark, attorneys).

Douglas C. Greenfield, Elizabeth, for plaintiff Jeanette Falcone (Greenfield & Greenfield, Elizabeth, attorneys).

Henry H. Rubenson, New Brunswick, for third-party defendant Nicholas A. Falcone.

WALSH, J.C.C., Temporarily Assigned.

The consolidated action arises out of a three-car automobile collision which took place on May 23, 1973. One of the drivers, plaintiff Nicholas Falcone, M.D., suffered injuries which, incidental to their healing, left a small facial scar and a scar below his left kneecap (both described in greater detail below). Medical treatment expenses totaled $91. As a result of his injuries Dr. Falcone instituted suit for pain and suffering, which suit was subsequently consolidated with another action previously filed by the doctor's wife.

Based upon depositions and interrogatories defendants Joan P. Branker, Valerie A. Johnson and Keith W. Hall now move for summary judgment dismissing the doctor's complaint for failure to state a claim upon which relief can be granted. The movants assert the tort exemption of New Jersey's Automobile Reparation Reform Act, N.J.S.A. 39:6A--8 (popularly known as the 'No Fault Law'), bars recovery on Dr. Falcone's pain and suffering claim due to his failure to meet the threshold limit of $200 in medical treatment bills required by the statute as a prerequisite to successful prosecution of this suit. Dr. Falcone opposes the motion on the grounds that the scars left from the injuries suffered constitute permanent significant disfigurements, thereby placing his claim outside the tort exemption of the above cited statute. The doctor further asserts that whether or not the scars are permanent significant disfigurements within the meaning of the statute is a fact question, thereby precluding the granting of defendants' motion. Defendants believe the court should deal with their motions in a summary manner pursuant to R. 4:67--5. Thus, both substantive and procedural questions are presented for resolution in this motion, which have not been previously answered in any reported decisions in our jurisdiction dealing with our No Fault Law. The court will first deal with the major substantive issue.

I

The statute upon which the parties rely in their contentions, N.J.S.A. 39:6A--8, states:

Every owner, registrant, operator or occupant of an automobile to which section 4, personal injury protection coverage, regardless of fault, applies, and every person or organization legally responsible for his acts or omissions, is hereby exempted from tort liability for damages to any person who is required to maintain the coverage mandated by this act, or to any person who has a right to receive benefits under section 4 of this act as a result of bodily injury, arising out of the ownership, operation, maintenance or use of such automobile in this State, if the bodily injury, is confined solely to the soft tissue of the body and the medical expenses incurred or to be incurred by such injured person or the equivalent value thereof for the reasonable and necessary treatment of such bodily injury, is less than $200.00, exclusive of hospital expenses, X-rays and other diagnostic medical expenses. There shall be no exemption from tort liability if the injured party has sustained death, permanent disability, Permanent significant disfigurement, permanent loss of any bodily function or loss of a body member in whole or in part, regardless of the right of any person to receive benefits under section 4 of this act. Bodily injury confined solely to the soft tissue, for the purpose of this section means, injury in the form of sprains, strains, contusions, lacerations, bruises, hematomas, cuts, abrasions, scrapes, scratches, and tears confined to the muscles, tendons, ligaments, cartilages, nerves, fibers, veins, arteries and skin of the human body. (Emphasis supplied; footnotes omitted)

The attorneys stipulated that Dr. Falcone is a licensed and registered New Jersey operator-owner whose car is principally garaged in New Jersey, and to whom N.J.S.A. 39:6A--4 applies. See N.J.S.A. 39:6A--3 and Fennell v. Ferreira, 133 N.J.Super. 63, 69, 335 A.2d 84 (Law Div.1975). Furthermore, the effective date of the act (January 1, 1973, L.1972, c. 70, § 19) was over four months prior to the date of the accident, making N.J.S.A. 39:6A--8 fully applicable to plaintiff. The next question, therefore, is what constitutes a permanent significant disfigurement.

A number of other jurisdictions have enacted so called no fault auto insurance laws which contain tort exemptions with language similar to or the same as ours. In Minnesota and Florida the phrase 'permanent disfigurement' is used, 7 M.S.A. § 65B.51 Subd. 3(b)(1) and 18A F.S.A. § 627.737(2); while Illinois and Michigan use the phrase 'permanent serious disfigurement,' S.H.A. Ch. 73, § 1065.158(c) and 17A Mich.Stats.Anno. § 24.13135(1) (M.C.L.A. 500.3135(1)); New York's description is 'significant disfigurement,' McK.Consol.Laws, c. 28, Insurance, § 671(4)(a) and § 673(1), and Connecticuit uses the same phrase as New Jersey, C.G.S.A. § 38--323(a)(4). Unfortunately, only one case has been found construing any of these phrases, and this decision is merely an advisory opinion of a state supreme court on the constitutionality of their no fault law. In re Requests of Governor and Senate, etc., 389 Mich. 441, 208 N.W.2d 469 (1973). The case is helpful, however, in that the court stated that the phrase 'permanent serious disfigurement' not only provided sufficient standards for legal interpretation, but had done so for many years, citing a long list of workmen's compensation cases. 389 Mich. at 479--480, 208 N.W.2d at 481--482, n. 11. It is to this body of case law that this court turns for interpretive guidance.

Some prefatory remarks are necessary before examining the workmen's compensation cases. The underlying rationale for the award is to compensate the injured worker for the decrease in saleability of his skills and/or earning capacity resulting from the disfigurement. Thus, over and above an objective consideration of whether a particular scar is a permanent significant (or serious) disfigurement, most of the compensation cases make loss of earning capacity attributable to the scar a criterion in determining whether to make an award, and if so, how much. See generally, 2 Larson, Workmen's Compensation Law, § 58.32; Everhart v. Newark Cleaning & Dyeing Co., 119 N.J.L. 108 (E. & A.1937), and Wright v. Purepac Corp., 82 N.J.Super. 100, 196 A.2d 695 (Cty.Ct.1963) (the latter case offering a comprehensive listing of the New Jersey workmen's compensation disfigurement cases which contain no workable definitions (for present purposes) of disfigurement, since all are tied to the earnings capacity criterion). Also, some statutes limit the areas of the body for which compensation for disfigurement may be awarded, E.g., La.Stats. Anno.--R.S. 23:1221(4)(p) (face or head). Subject to the above caveats, the compensation cases Do afford a viable basis, or at least starting point, for construing the relevant phrase in our No Fault Law.

The apparently now classic definition of the phrase 'permanent Serious disfigurement' in a compensation setting was made in Superior Mining Co. v. Industrial Commission, 309 Ill. 339, 141 N.E. 165 (1923):

* * * The act does not provide compensation for every mark or scar, nor for every disfigurement. A disfigurement is that which impairs or injures the beauty, symmetry, or appearance of a person or thing; that which renders unsightly, misshapen, or imperfect, or deforms in some manner. Before compensation can be awarded under the Workmen's Compensation Act there must be a disfigurement, and that disfigurement must be both permanent and serious. It was certainly not intended under this provision to authorize compensation for every trifling mark that could be discovered by the closest inspection. * * * (141 N.E. at 166)

The continued vitality of this oft-quoted definition is witnessed by its adoption in jurisdictions initially dealing with the issue, St. Laurent v. Kaiser Aluminum & Chemical Corp., 316 A.2d 504, 506 (R.I.Sup.Ct.1974), as well as by the fidelity with which it is followed in its own jurisdiction. See E.g., Corn Products Co. v. Industrial Comm'n, 51 Ill.2d 338, 282 N.E.2d 445 (Sup.Ct.1972). And, for reasons to be stated below, this court considers use of the word 'serious,' as opposed to our statute's 'significant' disfigurement, to be a distinction without a substantive difference.

Among other cases worthy of note is Ousley v. Employers Mutual Liability Ins. Co. of Wis., 121 So.2d 378 (La.App.1960), where the court was dealing with a statute allowing a worker recovery when he was 'seriously permanently disfigured about the face or head.' The court held that:

* * * a scar on the face which significantly mars the natural facial expression and is such as to attract attention is a facial disfigurement compensable under the above-quoted provision. * * * (at 379; citation omitted)

With regard to the word 'serious,' the court in Dombrowski v. Fafnir Bearing Co., 148 Conn. 87, 167 A.2d 458 (Sup.Ct.Err.1961), relying on Mitchum v. Inman Mills, 209 S.C. 307, 40 S.E.2d 38, 39 (1946)....