Fitzgerald v. Wright

• Decision Date: 23 January 1978
• Citation: 155 N.J.Super. 494,382 A.2d 1162
• Parties: Martin FITZGERALD, Plaintiff-Appellant, v. Shirley WRIGHT, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 494

155 N.J.Super. 494

382 A.2d 1162

Martin FITZGERALD, Plaintiff-Appellant, v. Shirley WRIGHT, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Submitted Dec. 20, 1977.

Decided Jan. 23, 1978.

Anthony P. Bufano, Jr., Jersey City, for plaintiff-appellant.

J. Allan Provan, Wayne, for defendant-respondent (Roy H. Binder, Wayne (on the brief).

Before Judges HALPERN, LARNER and KING.

The opinion of the court was delivered by

LARNER, J. A. D.

This appeal concerns the propriety of an involuntary dismissal granted by the trial judge because of the failure of plaintiff to present evidence of the quantum of medical expenses which would qualify him to recover in tort under the no fault law of this State (New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1 et seq.).

Plaintiff was injured in an automobile accident involving two vehicles and operators admittedly subject to N.J.S.A. 39:6A-4 requiring personal injury protection coverage regardless of fault. Neither plaintiff nor defendant initiated any pretrial proceeding to test whether plaintiff's injury and/or medical expenses were such as to overcome the tort exemption granted by § 8 of the act, N.J.S.A. 39:6A-8. The complaint alleged "serious injuries both of a permanent and temporary nature," as well as damage claims for medical expenses and lost income. The answer generally denied the allegations and among other affirmative defenses, asserted that "The plaintiff has failed to meet the Tort Exemption as outlined in N.J.S.A. 39:6A (39:6A-1) et seq."

The case proceeded to trial where the only evidence as to injuries and medical treatment came from the mouth of plaintiff. On these issues he testified "My forearm and my face were cut * * * and my face and my back and neck and head hurt from being banged around." He received emergency treatment at a hospital and was subsequently treated by Dr. Briggs of Clifton because of complaints referable to his back, neck and head. The doctor and his nurse administered massage and heat treatments "about 20, 25 times."

Plaintiff also testified that he was a student and that his injuries interfered with his athletic activities of wrestling and football. After the last medical treatment his condition was "a lot better."

The trial was carried to the second day because of counsel's application to reopen to present another fact witness. The next morning that witness was not produced and plaintiff rested. Defendant thereupon moved for an involuntary dismissal on the ground that plaintiff had failed to establish the statutory threshold of medical expenses of $200 in order to recover in tort against defendant. After arguments by both counsel the judge granted the motion for dismissal, holding that plaintiff had failed to prove the threshold requirement as a prerequisite of the existence of a cause of action in tort. Plaintiff appeals from that ruling.

It is clear that plaintiff did not sustain a permanent disability or disfigurement and that his claimed injuries were confined solely to the soft tissues of the body. Hence the narrow question is whether there was sufficient proof in the record to overcome the $200 statutory threshold.

There is little doubt that plaintiff failed to present any evidence of monetary expenses paid or incurred for the medical treatment necessitated by the injuries sustained in the accident. Nor did plaintiff suggest or offer to prove that element of the case through any factual presentation at side bar out of the presence of the jury.

The status of this record brings into sharp focus the troublesome procedural problems relating to the burden of going forward and the burden of persuasion on the issue of applicability of the tort exemption in the no fault law. Defendant relies upon the Law Division opinion of Seskine v. Cone, 139 N.J.Super, 307, 353 A.2d 558 (Law Div.1976), which resulted in an involuntary dismissal because of failure of proof by plaintiff of the medical expense threshold. Plaintiff on the other hand relies upon the Law Division opinion to the contrary of Fennell v. Ferreira, 133 N.J.Super. 63, 335 A.2d 84 (Law Div.1975), which held that the burden of proving the negative for the tort exemption rests with the defendant as an affirmative defense. The issue has not as yet been determined in the appellate courts of this State.

It is manifest that the purpose and design of the no fault law are to curtail litigation in the area of automobile personal injury claims by providing a system of personal injury protection regardless of fault. This system, in turn, was intended to furnish expeditious and inexpensive compensation to an injured person for his economic losses within certain limitations and also to reduce the ever increasing premium rates for automobile liability insurance. See Iavicoli, No Fault and Comparative Negligence in New Jersey (1973). The Legislature thus eliminated many tort recoveries arising out of automobile accidents where the parties involved were protected by and carried the personal injury protection coverage mandated by the statute. However, it did not eliminate tort recoveries in toto, reserving the cause of action for tort in death cases or serious bodily injury cases involving permanent injury or loss of function, permanent and significant disability, or dismemberment. In addition, where the injury is confined solely to soft tissue, recovery was retained as a right if the medical expenses for reasonable and necessary treatment equal at least $200.

From the foregoing, it would appear that the injured person has no basis in an appropriate soft injury case to prosecute a tort action unless his injury has necessarily and reasonably required medical expenditures of $200 or more. See Montag v. Bergen Bluestone Co., 145 N.J.Super. 140, 145-149, 366 A.2d 1361 (Law Div.1976). ¹

We are mindful of the fact that the statutory provision is couched in terms of an "exemption" from tort liability an immunity granted to a defendant under the designated factual circumstances. Apparently some courts have placed great stress on this terminology in arriving at the conclusion that the burden of alleging and proving such exemption is an affirmative burden of the defendant. See Fennell v Ferreira, supra ; Rugamer v. Thompson, 130 N.J.Super. 181, 186, 325 A.2d 860 (Law Div.1974); see also, Rescigno v. Picinich, supra, 151 N.J.Super. at 597-598, 377 A.2d 733; Falcone v. Branker, 135 N.J.Super. 137, 152, 342 A.2d 875 (Law Div.1975).

We do not consider that the choice of the statutory terminology of "exemption," its particular placement in the statute, or the traditional burden of the party invoking a statutory exemption to prove the facts entitling him to such exemption, should control the question in the context of this legislation. The issue is better viewed from the standpoint of pragmatic implementation of the legislation rather than from the point of view of abstract principles of statutory construction. Common sense and judgment should prevail over dependence on form.

Obviously, it is plaintiff-claimant who is privy to the knowledge and information required to determine whether the threshold has been met. Defendant is in no position to undertake affirmative proof of plaintiff's nonqualification except as he may ferret out the requisite data through discovery. Whether or not compliance with the threshold is technically considered as an essential element of a cause of action in tort since the adoption of the no fault law, nevertheless it is a precondition to recovery. Fairness and efficiency dictate that plaintiff should have the burden of proving compliance with that threshold in order to establish a prima facie case. Since he has the requisite information he should be obligated to come forward with the same as part of his case. Campbell v. United States, 365 U.S. 85, 96, 81 S.Ct. 421, 427, 5 L.Ed.2d 428, 437 (1961); 9 Wigmore, Evidence (3 ed. 1940), § 2486; cf. Chase Manhattan Bank v. O'Connor, 82 N.J.Super. 382, 387, 197 A.2d 706 (Ch.Div.1964), in which the parties had equal opportunity to ascertain the facts.

To shift this burden to defendant in the guise of categorizing the exemption as an affirmative defense does not accord with the realities inherent in the litigation process. And as a corollary, since plaintiff cannot recover in the absence of evidence of compliance with the threshold requirement, he should have the burden of proof on this issue a burden which is not onerous or unreasonable.

In the context of the record herein the court below was amply justified in granting the dismissal. In reaching this conclusion, we do not hold that plaintiff must produce a physician in order to prove the medical expenses or their necessity and reasonableness. Such a rigid requirement would be too burdensome for the limited purpose of demonstrating qualification for the statutory threshold.

Since, as we shall discuss below, the court must determine the question of compliance with the threshold, proof thereof can be submitted in various ways. A plaintiff may testify as to the names of physicians and the amount of their bills, or he may testify or submit documentation as to the medical payments made by the PIP carrier, or he may produce checks, bills or other evidential material which will establish on a prima facie basis that the medical expenses equal at least $200.

The proof of medical expenses in any manner should suffice as a prima facie basis for the prosecution of a tort action. Since the single element of the quantum of medical expenses incurred or paid...