Fennell v. Ferreira

• Decision Date: 21 February 1975
• Citation: 133 N.J.Super. 63,335 A.2d 84
• Parties: Sarah FENNELL and Willie Fennell, her husband, Plaintiffs, v. Francisco FERREIRA, Defendant.
• Court: New Jersey Superior Court

Page 63

133 N.J.Super. 63

335 A.2d 84

Sarah FENNELL and Willie Fennell, her husband, Plaintiffs, v. Francisco FERREIRA, Defendant.

Superior Court of New Jersey,

Law Division.

Feb. 21, 1975.

Elliott M. Bross, Newark, for plaintiffs (Horowitz, Bross & Sinins, Newark, attorneys).

Donald B. Connolly, Newark, for defendant (Oppenheim & Oppenheim, Asbury Park, attorneys).

DWYER, J.S.C.

In an action brought for personal injuries sustained by Sarah Fennell, in an automobile accident in New Jersey on September 8, 1973, defendant Francisco Ferreira moves for summary judgment against plaintiffs Sarah and Willie Fennell, her husband, on the ground that defendant is exempt from tort liability under N.J.S.A. 39:6A--8, a section of the No-Fault Law, N.J.S.A. 39:6A--1 et seq., based on answers to interrogatories which showed that the injury was 'sprains of cervical spine and left shoulder,' and that the wife is no longer under treatment. Another answer refers to an attached medical report dated December 3, 1973 specifying the wife's medical expenses and treatments, here summarized as follows:

The following expenses are listed:

                Date        Place   Service                  Charge
                ----        -----   -------                  ------
                9/8/73      Office  Initial examination and
                                    medication                $ 35
                9/10/73       "     X-Ray cervical spine        30
                                    X-Ray left shoulder         20
                9/10/73 to    "     Infra-red treatments
                11/9/73             exam, medication           170
                                                             ------
                                                              $255
                

In the section of the medical report directed to whether or not wife's condition was permanent, the answer is 'guarded,' and an answer concerning present complaints is that wife still has pain and limitation of cervical motion.

In Hammond v. Doan, 127 N.J.Super. 67, 72, 316 A.2d 68 (Law Div.1974), the court held that an action for declaratory judgment was not proper procedure to determine if exemption under N.J.S.A. 39:6A--8 made trial unnecessary but suggested that a motion for summary judgment if the facts were undisputed would be proper. Defendant's motion is apparently based on this suggestion.

The discovery in this case has been conducted under the applicable New Jersey court rules. Since plaintiffs' claim is based on tort liability and not for payment of benefits under N.J.S.A. 39:6A--4, defendant is probably limited to discovery under the aforesaid rules and not entitled to discovery under N.J.S.A. 39:6A--13, but there is no need to decide that question. Defendant's motion, therefore, is to be determined as would any other motion for summary judgment under R. 4:46--1 et seq.

Defendant urges that plaintiffs have the burden of establishing initially that they are not subject to the exemption and that if they do not, the answers to interrogatories show that they have expended less than $200, the threshold for tort exemption, because the initial examination ($35) must be regarded as diagnostic and, hence excludable from the threshold amount together with the X-ray charges ($50). If so, medical expenses would total $170 for treatment.

Plaintiffs urge that the exemption is an affirmative defense to be established by defendant and that the initial examination of the wife for purposes of deciding what treatment to administer must be regarded as treatment and not a diagnostic expense. See Harris v. Osorio, 125 N.J.Super. 463, 311 A.2d 402 (Law Div.1973).

Counsel for neither party has referred the court to any decision construing the statute, ¹ and the court has not found any New Jersey decision which answers the two questions posed. The court treats them in the order stated.

Although not necessary for the decision in Rugamer v. Thompson, 130 N.J.Super. 181, 325 A.2d 860 (Law Div.1974), the court there stated:

N.J.S.A. 39:6A--8 provides for exemption from tort liability and it has been suggested that tort exemption be treated like any other affirmative defense, such as charitable immunity, governmental immunity or contributory negligence. (at 186, 325 A.2d at 863)

This is consistent with the view expressed in Iavicoli, No Fault and Comparative Negligence in New Jersey, § 57 at 139 (1973). In deed, defendant in this matter asserted the exemption as the fourth separate defense in his answer.

These views are consistent with general guidelines for construing statutes containing exemptions. In 29 Am.Jur.2d, Evidence, § 147 at 179, it is stated:

Where an exception or exemption of a statute appears in the enacting clause thereof, the party relying upon the statute to establish a cause of action or defense must prove facts showing that his case does not come within the exception. However, where an exception or exemption appears in a different section, subdivision, or clause from that containing the enacting words of a statute, the party relying upon the statute need not prove that his ease (sic) does not some (sic) within the exception or exemption, but the burden of proof thereof is upon the opposite party.

In Schlemmer v. Buffalo, Rochester & Pittsburg Railway Co., 205 U.S. 1, 27 S.Ct. 407, 51 L.Ed. 681 (1907), Justice Holmes, in noting a proviso in § 6 of the Safety Appliance Act of 1893 that the act did not apply to four-wheel train cars, stated that if defendant wishes to reply on the proviso, he must satisfy the burden of bringing himself within the statutory execption.

This is the practice in New Jersey as well. In Raison v. Berkeley Tp. Bd. of Ed., 103 N.J.L. 547, 137 A. 847 (Sup.Ct.1927), defendant demurred to plaintiff's complaint seeking an order based upon a statute directing the admission of his child to a school within the system, preferably the nearest one to his home, on the ground that the complaint failed to state that no other suitable provision had been made for the admission of the child into a convenient school. The court overruled the demurrer and said:

* * * There are provisions in other sections (of the relevant statute) whereby for purposes of convenience such child may be assigned to another school, but they are exceptions not in the enacting clause, which need not be negatived by the relator (plaintiff) but should be invoked by the respondent (defendant). State v. Terry, 73 N.J.L. 554, 64 A. 113; State v. Reilly, 89 Id. 627, 628, 99 A. 329; Wheatman v. Andrews, 85 Id. 107, 112, 89 A. 285, where other cases are collected. (at 548, 137 A. at 847; explanatory brackets supplied)

See No-Worry Chemical Co. v. Du-All Chemical Co., 16 N.J.Misc. 99, 197 A. 364 (Cir.Ct. 1938); Annotation, 'Burden of Allegation and Proof In Civil Cases as Regards Exception In Statute,' 130 A.L.R. 440 (1941).

The statutory exemption in the instant case is found in L.1972, c. 70, § 8, and not in the enacting clause.

The New Jersey Automobile Insurance Study Commission Report (December 1971) contained the following recommendation concerning tort exemption:

Recommendation 3. Limited Tort Exemption for Certain Soft Tissue Injuries.

(3.0) The right of an injured person to bring an action in tort for damages over and beyond the benefits provided by PIPC (section 1.2) (Personal Injury Protection Benefits under No Fault Insurance) shall be guaranteed, provided however, that injuries involving and limited to 'soft tissue' as to which medical treatment by a licensed physician, osteopath, or chiropractor is valued at not more than $100, will not be subject to payment of benefits in excess of those provided by PIPC. (Neither diagnostic nor hospital charges shall be included in valuing the medical treatment for such injuries.) This limitation shall not apply to fatal injuries.

The language of N.J.S.A. 39:6A--8 is not phrased in terms of creating a condition that a plaintiff must satisfy in order to sue. This statute is substantially different from that entitled Death By Wrongful Act, N.J.S.A. 2A:31--1 et seq., referred to by defendant, where a plaintiff should allege facts to bring himself or herself, within the coverage of the act. Cf. Engel v. Gosper, 71 N.J.Super. 573, 177 A.2d 595 (Law Div.1962).

The language in question is better analogized to the language in the statute limiting charitable liability for negligence, N.J.S.A. 2A:53A--7 et seq. ² It has been held in other jurisdictions that charitable status and the existence of facts which will bring an immunity doctrine into play are matters of defense to be proved by the defendant. Barrett v. Brooks Hospital, Inc., 338 Mass. 754, 157 N.E.2d 628 (Sup.Jud.Ct.1959); White v. Central Dispensary and Emergency Hospital, 69 App.D.C. 122, 99 F.2d 355 (D.C.Cir.1938).

The court concludes that the exemption from tort liability afforded in N.J.S.A. 39:6A--8 is one that plaintiffs do not...