Licari v. Elliott

• Decision Date: 14 October 1982
• Parties: , 441 N.E.2d 1088, 33 A.L.R.4th 759 Nicholas E. LICARI, Appellant, et al., Plaintiff, v. Arthur L. ELLIOTT, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 570

455 N.Y.S.2d 570

57 N.Y.2d 230, 441 N.E.2d 1088, 33

A.L.R.4th 759

Nicholas E. LICARI, Appellant, et al., Plaintiff, v. Arthur L. ELLIOTT, Respondent.

Court of Appeals of New York.

Oct. 14, 1982.

Julio J. Marino, Great Neck, for appellant.

Alexander J. Wulwick and L. Kevin Sheridan, New York City, for respondent.

Robert H. Silk, New York City, for New York State Trial Lawyers Ass'n, Inc., amicus curiae.

OPINION OF THE COURT

JASEN, Judge.

The issue raised on this appeal is whether the plaintiff in this negligence action brought to recover damages for personal injuries has established a prima facie case that he sustained a "serious injury" within the meaning of subdivision 4 of section 671 of the Insurance Law, commonly referred to as the "No-Fault" Law.

On February 13, 1979, plaintiff was injured in a motor vehicle accident. After being examined at the hospital, plaintiff was diagnosed as having a concussion, acute cervical sprain, acute dorsal lumbar sprain and a contusion of the chest. He was released two hours later and went home. Later that day, plaintiff consulted his family physician and, after relating the events of the day, was told to rest in bed. On February 15, 1979, plaintiff again consulted his physician and complained that he was coughing up reddish phlegm. Concerned about possible rib damage, his physician had plaintiff admitted to the hospital for tests. The test results showed no rib damage and that plaintiff's lungs were clear. The hospital physician examined plaintiff upon his admission and testified at trial that plaintiff's lungs were clear, reflexes normal, and that he suffered only a "very mild limitation" of movement in the back and neck areas. No further medical testimony was elicited with respect to the extent of plaintiff's limitation of movement. On February 17, 1979, plaintiff stated that he felt better and requested his release from the hospital. He was discharged and returned home. On March 9, 1979, 24 days after the accident, plaintiff returned to his job as a taxi driver. Immediately upon returning to work, plaintiff resumed driving a taxicab 12 hours per day, 6 days a week, as he had prior to the accident. The only proof of limitat with respect to his work performance was plaintiff's own testimony that he was unable to help some of his fares with their luggage "if they happened to have luggage." Plaintiff also testified that he could not help his wife with various household chores as much as he had before the accident. Finally, plaintiff stated he had occasional transitory headaches and dizzy spells which were relieved by aspirin.

After the close of evidence, defendant moved to dismiss the complaint on the ground that plaintiff failed to establish that his injury met any of the threshold requirements of a serious injury as defined in subdivision 4 of section 671 of the Insurance Law. The court reserved decision on the motion and submitted the case to the jury on the theories that, in order to recover, plaintiff had to establish, by a preponderance of the evidence, that he had suffered either a medically determined injury of a nonpermanent nature which prevented him from performing substantially all his daily activities for not less than 90 days during the 180 days immediately following the accident or that as a result of the accident he sustained a significant limitation of use of a body function or system. The jury returned a verdict in favor of plaintiff, finding that plaintiff had proven a serious injury under both definitions. Defendant moved to set aside the verdict on the same ground as his prior motion to dismiss the complaint. The court denied the motion.

On appeal, the Appellate Division reversed and dismissed the complaint, holding that the plaintiff had failed, as a matter of law to prove a serious injury under either definition. 85 A.D.2d 596, 444 N.Y.S.2d 703. We agree and affirm.

In construing the statutory definition of serious injury, it is necessary to examine the policies and purposes underlying this State's no-fault legislation. The so-called No-Fault Law was adopted by the Legislature to correct certain infirmities recognized to exist under the common-law tort system of compensating automobile accident claimants. (Insurance Law, art. 18, L. 1973, ch. 13, § 1; Montgomery v. Daniels, 38 N.Y.2d 41, 49-53, 378 N.Y.S.2d 1, 340 N.E.2d 444.) The Legislature provided that "there shall be no right of recovery for non-economic loss except in the case of a serious injury, or for basic economic loss." (Insurance Law, § 673, subd. 1.) The No-Fault Law, as originally enacted, contain a two-part definition of the term "serious injury" keyed to the nature of the injuries and the amount of the medical expenses. The monetary part provided that if reasonable medical costs exceeded $500, a serious injury would be established. This section was repealed in 1977 when experience demonstrated to the Legislature that the $500 threshold provided a target for plaintiffs which was too easily met and that the standard was unsuitable to fulfill the purpose of the No-Fault Law. (Memorandum of State Executive Dept., 1977 McKinney's Session Laws of N.Y., p. 2450.) It was replaced with the present definition of serious injury as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment." (Insurance Law, § 671, subd. 4.)

Tacit in this legislative enactment is that any injury not falling within the new definition of serious injury is minor and a trial by jury is not permitted under the no-fault system. We are required then to pass on the threshold question of whether the plaintiff in this case has established a prima facie case that he sustained a serious injury within the meaning of the statute.

Although the statute sets forth eight specific categories which constitute serious injury, we are only concerned on this appeal with construing two of them, to wit: whether the plaintiff suffered a serious injury which resulted in either (1) a "significant limitation of use of a body function or system"; or (2) "a medically determined injury or impairment of a non-permanent nature" which endured for 90 days or more and substantially limited the performance of his daily activities.

We begin our analysis of these two categories of serious injury by recognizing that one of the obvious goals of the Legislature's scheme of no-fault automobile reparations is to keep minor personal injury cases out of court. In support of this policy determination made by the Legislature, it seems only proper that the words contained in these two categories should be construed consistent with the legislative intent. Hence, the word "significant" as used in the statute pertaining to "limitation of use of a body function or system" should be construed to mean something more than a minor limitation of use. We believe that a minor, mild or slight limitation of use should be classified as insignificant within the meaning of the statute.

Likewise in the last category of the statute--"a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment"--the words "substantially all" should be construed to mean that the person has been curtailed from performing his usual activities to a great extent rather than some slight curtailment. As to the statutory 90/180-day period of disability requirement, it should be considered a necessary condition to the application of the statute. Where the statute is specific, as it is here, that the period of disability must be "for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment", the Legislature has made it abundantly...