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INSURANCE — Auto Insurance — Substantial Compliance — Verbal Threshold A-4960-01T2; Appellate Division; opinion by Fall, J.A.D.; decided and approved for publication February 7, 2003. Before Judges Kestin, Eichen and Fall. On appeal from the Law Division, Union County, UNN-L-3109-01. DDS No. 23-2-2774 The Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -32, effective for all auto insurance policies issued on or after March 22, 1999, made significant changes made to New Jersey’s no-fault law, including a requirement that to overcome the “tort option,” a plaintiff must, within 60 days of defendant’s answer, file a physician’s certification that plaintiff has suffered an injury described in the statute. 39:6A-8(a). A court may grant one additional period, not to exceed 60 days, to file the certification, on a finding of good cause. On leave granted, defendant Wilfredo Manglapus appeals from an order denying his motion for summary judgment that had sought dismissal of the automobile personal-injury action filed against him by plaintiff, Jenevieve Casinelli, for failure to file a physician certification within the prescribed time, and for failure to meet the verbal-threshold requirements of the statute. Plaintiff filed two untimely physician certifications, ostensibly containing the components required by 39:6A-8(a), after the motion for dismissal was made. Additionally, during the course of discovery and before expiration of the 60-day period prescribed by 39:6A-8(a) for filing a physician certification or expiration of the two-year statute-of-limitations period prescribed by 2A:14-2, she furnished defendant with numerous medical records and reports documenting her injuries, purportedly causally related to the auto accident. These circumstances, and others, require development of a factual record against which the application of the doctrine of substantial compliance can be considered, and the matter is remanded for that purpose. On December 27, 1999, plaintiff was a passenger in a pick-up truck that was struck from the rear while stopped at a traffic light by a vehicle driven by defendant. Plaintiff was thrown forward, then backward, striking her head against the back window of the truck. On the day of the accident plaintiff was examined and treated by Dr. James Garabo, a chiropractor. Due to the severity of her head and cervical pain, she was transported from his office to Rahway Hospital. X-rays of her skull and cervical spine were taken; she was given a cervical collar; was told to take Tylenol or Advil for her pain; was advised to see a neurologist; and then released. The skull X-rays were normal. The cervical X-ray disclosed “[l]oss of normal lordosis with mild kyphosis [backward curvature of the spine] centered on C4-5. Rule out muscular spasm or sprain. No fracture.” On December 29, plaintiff was examined by Dr. Nazar H. Haidri, a neurologist, who diagnosed post-concussion syndrome; post-traumatic headaches; acute cervical, dorsal and lumbar sprain; and symptoms consistent with bilateral lumbar radiculopathy. His December 29 report noted she had been involved in an auto accident in April 1998 that had caused injuries to her neck and back, which were “markedly aggravated” by the December 1999 accident. Haidri found limited range of motion in both the cervical and lumbar areas of her spine and spasms “over both cervical para-vertebral muscles.” On January 10, 2000, a magnetic resonance image of plaintiff’s skull disclosed “[n]o evidence of tumor, infarct or subdural hematoma.” A February lumbosacral MRI revealed “[n]o evidence of disc herniation, annular bulge or spinal stenosis”; a cervical MRI disclosed “[r]eversed cervical lordosis consistent with muscular spasm[,]” and “ [d]isc herniation C5-C6, central and left paracentral with sac indentation.” Haidri referred plaintiff to Dr. Steven L. Nehmer, an orthopedic surgeon. His May 16 report recommended that she undergo either a cervical epidural injection or begin physical therapy. His September 29 report diagnosed plaintiff as having suffered a cervical disc herniation at C5-C6 and a lumbar strain, both causally related to the December 1999 accident. He said plaintiff’s prognosis was “guarded.” Plaintiff was also examined by Dr. Charles G. Kalko, a neurosurgeon. His December 8 report diagnosed cervical radiculopathy and cervical deformity at C5-C6. He recommended physical therapy and possible surgical intervention. He also concluded that her injuries were causally related to the December 1999 accident and that her prognosis was guarded. Haidri also referred plaintiff to Dr. Paul H. Ratzker, a neurosurgeon at the Back Institute. His July 25, 2000, report diagnosed “left sided C6 cervical radiculopathy secondary to the disc herniation at the C5-6 level.” He prescribed medication and physiotherapy. Plaintiff began physical therapy at the Back Institute in July 2000. On September 14, Ratzker found that “[t]he range of motion in her cervical spine with flexion, extension and rotation are markedly increased from her last visit[,]” and “ she has an excellent result from conservative treatment of cervical radiculopathy.” He recommended continued physiotherapy. On July 17, 2001, plaintiff filed this auto personal-injury action against defendant. On October 12, defendant filed an answer, interposing, inter alia, a separate defense contending plaintiff’s action was barred by 39:6A-8(a). On February 25, 2002, defendant moved for summary judgment, seeking dismissal of plaintiff’s complaint on the ground that she had failed to meet the verbal threshold and physician-certification requirements of 39:6A-8(a). In response, plaintiff submitted a March 5, 2002, report from Haidri, attaching a May 16, 2000, report from Nehmer and stating that her post-traumatic tinnitus, blurring of vision, chronic cervical, dorsal and lumbar sprain, and the disc herniation at C5-C6 were causally related to the injuries sustained during the December 1999 accident, and that her injuries from the 1998 auto accident had been aggravated by the latter accident. Haidri’s report said that future therapy and disc herniation surgery could not be ruled out and that the injuries are permanent. Physician certifications executed by Haidri and Ratzker, dated March 18, 2002, were also filed in opposition to defendant’s motion. Haidri certified that plaintiff “has sustained a permanent and significant injury” as a result of the December 1999 accident based on continuing symptoms present for six months after the accident. Ratzker certified that his prognosis for plaintiff was fair based on a significant cervical disc herniation and a recent flare-up of symptoms. He said that plaintiff “has suffered a permanent and significant injury” as a result of the December 1999 accident, based on a permanent disruption of her intervertebral disc. Plaintiff also submitted her certification outlining her injuries, her course of treatment, and her then-current complaints of pain and physical limitation. The motion judge noted that since the answer had been filed on October 12, 2001, 39:6A-8(a) required plaintiff to have filed a physician’s certification stating she had suffered “a permanent injury within a reasonable degree of medical probability,” by December 11, 2001. Plaintiff had not provided the physician certifications from Haidri and Ratzker until March 20, 2002. Citing Watts v. Camaligan, 344 N.J. Super. 453 (App. Div. 2001), for the proposition that dismissal of a complaint for failure to provide the required physician’s certification within the prescribed time is to be without prejudice, the motion judge noted that by the time plaintiff provided the certifications, the limitations period had expired. The judge considered, without deciding, whether a dismissal without prejudice would effectively time-bar plaintiff’s cause of action against defendant or whether the reinstatement or refiling, for statute-of-limitations purposes, would relate back to the original filing date of the complaint. The motion judge denied defendant’s motion for summary judgment and declined to determine whether plaintiff had demonstrated “good cause” for failing to timely provide the physician certifications or for failing to file a motion to extend the 60-day time period. Whether plaintiff had satisfied the verbal-threshold requirements of 39:6A-8(a) was not addressed. As the trial court correctly concluded, plaintiff was required to file a conforming physician’s certification by December 11, 2001. She failed to do so; nor did she seek an additional 60-day period within which to file the certification. Defendant filed his motion for summary judgment more than 120 days after he had filed his answer, and approximately two months after the limitations period had expired. Certain facts affecting the analysis of the issue here are not fully clear from the record. Rule 4:17-1(b)(2) provides that a plaintiff in a personal-injury auto accident case “shall be deemed to have been served with uniform interrogatories simultaneously with service of defendant’s answer to the complaint and shall serve answers to the interrogatories within 30 days after service of the answer to the complaint.” Defendant’s answer was filed and served on October 12, 2001. Accordingly, plaintiff was required to serve answers to Uniform Interrogatories, Form A, on him on November 11. The record only contains the first page of plaintiff’s answers, i.e., answers to the first three questions. In response to question No. 3, which required her to give a “[d]etailed description of nature, extent and duration of all injuries,” she described her injuries and attached reports from Drs. Haidri, Kessler, Kalko, Nehmer and Ratzker. Although the record does not reflect when those interrogatory answers were served on defendant, there is nothing to suggest that she failed to comply with Rule 4:17-1(b)(2). Thus, it appears that before expiration of the period for serving of the physician certification she had provided defendant with her entire course of medical evaluation and treatment, including several reports causally linking the cervical disc herniation to the December 1999 accident. Additionally, at some point before filing the motion for summary judgment, the defense had taken plaintiff’s deposition, where the full extent of her injuries was explored. As to whether a plaintiff’s failure to file a timely physician certification mandates a dismissal with prejudice, absent a showing of good cause to permit an extension of up to 60 days, Watts, 344 N.J. Super. at 456-57, said: “that plaintiff’s failure to comply with the physician certification requirement of . . . 39:6A-8(a), under the circumstances of this case, required a dismissal without prejudice . . . .” Notably, the two-year statute-of-limitations period had not expired at the time the trial court considered the defendant’s motion. Watts agreed with the plaintiff’s concession that the failure to produce the certificate or request an extension of time nullified any justification for a good-cause extension. So too here. The failure to seek court approval of a second 60-day period, and the late submission of a physician’s certification precludes a finding of “good cause” sufficient to excuse the late filing. However, in addressing the appropriate sanction for failing to file a timely physician’s certification, Watts noted that the purpose of the certification requirement was to determine whether the plaintiff had medical evidence to establish that the verbal-threshold provisions had been satisfied, and that the failure to comply with the certification requirement does not go to the heart of the cause of action. Accordingly, “the failure to comply with the physician certification requirement . . . was not intended by the Legislature to preclude future suits for legitimate injuries sustained as the result of another’s negligence.” Id. at 467. Thus, it ruled that the appropriate remedy for failure to provide a physician certification pursuant to 39:6A-8(a) is a dismissal without prejudice. Here, the issue is (1) whether the expiration of the statute-of-limitations period at the time defendant filed his motion for summary judgment, followed by plaintiff’s untimely filing of the physician certifications, mandated entry of an order of dismissal with prejudice; or, alternatively, (2) whether entry of a dismissal without prejudice would have the effect of precluding reinstatement or refiling of plaintiff’s complaint by operation of the limitations bar. Konopka v. Foster, 356 N.J. Super. 223 (App. Div. 2002), considered these questions. There, the plaintiff failed to file the physician certification until approximately one year beyond the aggregate 120-day period permitted by 39:6A-8(a), and more than two years after expiration of the statute-of-limitations period in 2A:14-2. Although the defendant had legal and factual grounds to seek dismissal of the suit, he had deferred his motion until after interrogatories, depositions, document exchange, arbitration, and the limitations period had run. On appeal from the dismissal with prejudice, the plaintiff argued that she had “substantially complied” with the statutory directives contained in the AICRA and, alternatively, that the dismissal should have been without prejudice, subject to restoration on the imposition of sanctions. In rejecting the plaintiff’s contention that the doctrine of substantial compliance should have been invoked to avoid the statute-of-limitations bar, since she had submitted, within one month of the filing of the defendant’s answer, “a report by her treating chiropractor that established permanency[,]” ibid., Konopka said the filing of a mere report could not substitute for the required certification and that plaintiff’s inability to show a general compliance with the purpose of the statute was fatal to her substantial-compliance argument. However, in reversing the dismissal of the plaintiff’s complaint with prejudice, Konopka held that, as a matter of law, the doctrine of equitable estoppel may be applicable to bar dismissal of a personal-injury claim for failing to comply with the certification requirements when dismissal is sought only after the statute of limitations has run. The matter was remanded for development of a factual record against which the applicability of the doctrine of equitable estoppel could be measured. In the context of a verbal-threshold case, the primary distinction between the equitable doctrines of “substantial compliance” and “estoppel” is the focus of the inquiry, the former examining the plaintiff’s conduct, and the latter scrutinizing the defendant’s. Konopka‘s conclusion that the doctrine of substantial compliance cannot be considered when a plaintiff has failed to meet the technical physician-certification time requirements in 39:6A-8(a) is disagreed with. Although Konopka correctly concluded that one of the purposes of the physician-certification requirement is to deter fraudulent claims and to punish those who collude to present a fraudulent personal-injury claim, the certification requirement was adopted to facilitate the overall, underlying purpose of AICRA to reduce auto insurance premiums for the consuming public through achievement of a reduction or elimination of those claims that do not meet the threshold requirements in 39:6A-8(a). The focus of a substantial-compliance analysis should be on whether the plaintiff’s actions have furthered the overall, underlying legislative purpose in the same or similar manner that the certification would have done had it been timely filed. Moreover, the statute’s purpose to reduce fraudulent claims and to punish those who participate in a fraudulent claim is not undercut by application of the doctrine of substantial compliance, since its application would recognize the existence of facts that demonstrate that the claim is not fraudulent. That is particularly true where, as here, plaintiff has submitted physician certifications, albeit late, that essentially memorialize that which had been contained in reports previously submitted to defendant in a timely fashion. If those certifications are later found to be fraudulent, the criminal penalties in 39:6A-8(a) are not precluded by application of the doctrine of substantial compliance. Additionally, if the certifications are deemed insufficient, or if the trial court otherwise concludes that plaintiff has failed to meet the verbal-threshold requirements, the trial court may consider dismissal of plaintiff’s action on either or both of those grounds. Held: If a plaintiff in a verbal-threshold case can establish the requisite elements demonstrating substantial compliance with the statute’s procedural requirement of timely filing a physician certification, then the harsh consequences that would otherwise flow from technical noncompliance with the time requirements for serving the physician certification can be equitably avoided. Here, the issue of substantial compliance was raised at argument; it was not briefed by the parties. The record is not adequate to determine whether all prerequisite elements for its application are present. Additionally, the doctrine of substantial compliance can be invoked, under appropriate circumstances, to avoid the harsh application of the statute of limitations, after dismissal without prejudice where the legislative purpose has been fulfilled. Since the physician certification is a procedural requirement, substantial compliance with that requirement in an action timely filed should preclude a dismissal of the action or application of the statute-of-limitations bar. Accordingly, the denial of defendant’s motion for summary judgment is affirmed, but the matter is remanded for further proceedings to determine whether plaintiff may invoke the doctrine of substantial compliance to prevent dismissal of her complaint for failure to file a timely physician certification. Consideration of the application of the doctrine of equitable estoppel is proper under appropriate circumstances and may also be considered. In concluding that, under appropriate circumstances, the doctrine of substantial compliance may be invoked to avoid dismissal, it is not suggested that plaintiff can avoid the statutory requirement that a complying physician certification be filed. As a prerequisite to consideration of application of the doctrine of substantial compliance in a verbal-threshold case, the plaintiff must have filed a physician certification that, except for being untimely filed, otherwise meets the requirements in 39:6A-8(a). Affirmed and remanded for further proceedings. — Digested by Judith Nallin [The slip opinion is 28 pages long.] For appellant — Michael C. Trifolis (Litvak, Accardi & Trifolis). For respondent — John N. Giorgi.

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