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Two years ago, I wrote that “with the election of James McGreevey, the public can expect significant changes in automobile insurance.” What I expected was a strong effort by the governor to repeal the No Fault Act and protect the legal rights of consumers — the victims of automobile accidents in the State of New Jersey. See 167 N.J.L.J. 285, Jan. 28, 2002. Instead, on June 9, 2003, McGreevey signed into law S-63, a bill that incorporates the platform of the insurance industry to enhance the competitive marketplace for automobile insurance by giving insurance carriers more control over policyholders and rates through deregulation. The act amends the “tier rating” provisions to allow insurers to assign insureds to a nonstandard rating tier upon the accumulation of only five motor vehicle points; raises the ceiling for expedited rate increases from 3 percent to 7 percent; simplifies the procedures for an insurer to withdraw from the state; extends the “look back” period of the excess profits law from three to seven years; and broadens the carriers’ rights with respect to cancellation and underwriting ineligibility. But is such legislation necessary? For the past 20 years, the insurance industry has complained about tight regulatory controls and low profits in New Jersey. Nonetheless, current data from the National Association of Insurance Commissioners reveals that insurance companies that sell auto policies in New Jersey earned $437 million in 2002 — a profit margin of 8 percent. The total profits were the highest in the nation and the profit margin was second highest. The statistics suggest that the insurance crisis in New Jersey is a fabrication and that the state has the nation’s highest auto insurance rates because the industry has continued to feed its voracious appetite for profits — at the expense of policyholders and accident victims. While the governor and the Legislature have acquiesced to the insurance industry’s demand for deregulation, they have turned their backs on accident victims. In 1998, the Legislature amended the No Fault Act to tighten the verbal threshold. AICRA eliminated claims for nonpermanent injuries, required fractures to be displaced and imposed upon plaintiffs the obligation to provide a physician’s certification that their injuries were permanent. The purpose of the amendments was to reduce the number of auto insurance claims without impairing the rights of accident victims who have sustained permanent injuries from recovering damages for economic and noneconomic loss. Nonetheless, in November of 2002, the Appellate Division misconstrued the intention of the Legislature. In James v. Torres, 354 N.J. Super. 586 (App. Div. 2002), certif. denied 175 N.J. 547 (2003), the court held that a person who sustains a permanent injury as the result of an automobile accident must also prove that the accident had a “serious impact” on that person’s life. The court imposed this obligation even though a serious impact test was not specified in the statute and was not incorporated into the permanency standard adopted by the Legislature. In the past year, the New Jersey State Bar Association has supported legislation — the James amendment — to amend the No Fault Act to clarify the intent of the Legislature. The Bar has always opposed legislation that provides immunities to industry and supported legislation that opens the courthouse door to consumers. The James opinion is an example of the piecemeal eradication of the civil system by the courts — the branch of government that we usually rely upon to protect civil and consumer rights. The Association of Trial Lawyers of America-New Jersey has also supported the James amendment and its clarification of AICRA. The trial lawyers argue that there is a difference between a serious injury and a serious impact. AICRA requires proof that the plaintiff’s injuries are permanent. Permanent injuries are serious injuries. AICRA does not require proof that permanent injuries have a serious impact — permanent injuries are serious enough. The longstanding battle over automobile insurance will continue in 2004. The insurance industry will continue to fight to increase its profits by limiting the rights of accident victims to file claims. The trial lawyers will continue to fight to open the courthouse doors so that automobile accident victims who suffer permanent injuries can recover damages from the careless drivers who cause accidents. The courts have a responsibility to the public to see that claims are paid. As Judge David Baime said in Owens-Illinois v. United Ins. Co., 264 N.J. Super. 460 (App. Div. 1993), we must protect insureds from the insurance industry’s “unholy mantra … we collect premiums; we do not pay claims.” In 1997, McGreevey criticized the Whitman administration for its great failure in tackling the automobile insurance issue. In “The McGreevey Drivers First: Auto Insurance Plan,” he stated: When it comes to auto insurance, there are two sides of the road: You’re either on the insurance companies’ side — or the drivers’. For too long, we’ve had a governor who was on the insurers’ side. It’s time New Jersey drivers had a governor who works for us. Last year was 2003. The McGreevey administration took the insurance companies’ side and deregulated automobile insurance. This year is 2004. It’s time for the administration to take the drivers’ side; the consumers’ side; the accident victims’ side. It’s time to adopt the James amendment. This annual supplement to the Law Journal will take a look at the No Fault Act in 2003. In the year 2003, there were eight published opinions dealing with the verbal threshold. The cases discussed the verbal threshold post-AICRA; significant scarring under type 3; loss limitations; pre-existing conditions; and certifications of permanency. In addition, there was one case that discussed the permanency standard under the Tort Claims Act. VERBAL THRESHOLD New Jersey adopted the No Fault Act in 1972. As initially enacted, the act barred all claims for soft-tissue injuries unless medical expenses exceeded a monetary threshold. In 1988, the statute was amended to replace the monetary threshold with a “verbal threshold” — a definition in words of the type of significant or permanent injury that would permit an accident victim to recover damages from a negligent driver. Nonetheless, the 1988 statute did not provide any guidelines for determining whether a soft-tissue injury was significant or permanent. In the seminal case of Oswin v. Shaw, 129 N.J. 290 (1992), the New Jersey Supreme Court promulgated two standards for determining whether an injury satisfies the verbal threshold. The objective standard requires a plaintiff to produce “credible, objective medical evidence” that the injuries meet one of the types set forth in the statute. The subjective test requires proof that the injury had a serious impact on the plaintiff’s life. There have been many cases that have discussed the objective and subjective standards established by Oswin. In Cineas and Arencibia, the Appellate Division held that objective evidence of loss of motion and muscle spasm was sufficient to establish a significant or permanent injury. See “Guide to the New Jersey Verbal Threshold, 1991 — 1993,” 136 N.J.L.J. 1612. Likewise, in Cavanaugh and Moreno, the courts found that persistent muscle spasm more than two years after an accident was sufficient objective medical evidence of injury to satisfy the verbal threshold. See “A Look at No Fault in 1994,” 140 N.J.L.J. 238. In Natale, the court held that the plaintiff’s injuries had a serious impact on her life. The plaintiff testified at deposition that she was unable to engage in normal marital relations (reducing sex from every other day to once a month); that she was unable to work overtime (previously working an extra 22 hours a week); and that she was unable to perform many household chores (such as washing laundry, vacuuming rugs and cleaning floors). The court recognized that any one of the restrictions might not have met the threshold “by itself;” however, the impact on the plaintiff’s marital relations, employment and household activities raised an issue of serious impact “under the totality of the circumstances.” See “A Look at No Fault in 2001,” 167 N.J.L.J. 287. In 1998, the Legislature adopted the Automobile Insurance Cost Reduction Act, which “completely eliminated” the old verbal threshold and “substituted” a new verbal threshold — a “limitation on lawsuit option” — that incorporates six types of injury, including a permanent injury within a reasonable degree of medical probability. The new verbal threshold provides a precise definition of permanency (the loss of body function) and a precise procedure for satisfying the threshold (the submission of a physician’s certification based on objective clinical evidence). There has been only one prior decision dealing with “the objective standard” post-AICRA. In Jacques, a trial court held that a plaintiff who suffered from muscle spasms for five months and complained of loss of motion did not provide sufficient objective clinical evidence to support a finding that the injury was permanent. See “A Look at No Fault in 2002,” 171 N.J.L.J. 258. It is clear that AICRA has explicitly incorporated the objective standard of Oswin — the plaintiff must submit a physician’s certification based upon objective clinical evidence. What is not clear is whether AICRA also includes the serious impact test. In the preamble, the Legislature refers to the elimination of suits for soft-tissue injuries that are “non-permanent.” Nonetheless, the words “serious impact” are never used in the statute and are not included in the explicit definition of the term “permanent injury.” There have been three prior decisions dealing with the serious impact test post-AICRA. See “A Look at No Fault in 2002,” 171 N.J.L.J. 259. In Compere, a trial court held that AICRA was “eloquently silent” about the subjective test of Oswin and, therefore, the court would not read the serious impact test “into the otherwise plain language of the statute.” In Rogozinski, another trial court reached the opposite conclusion — that the Legislature intended to tighten the verbal threshold to restrict the number of claims and, therefore, AICRA incorporated both the objective test and the serious impact test from Oswin. In the lead case of James, the Appellate Division recognized that AICRA omits any mention of serious impact, but suggested that “the entire thrust behind the passage of AICRA was to reduce the number of litigated claims.” Therefore, the court concluded that “the Legislature clearly intended to require that an injury be both permanent and serious to permit a plaintiff to cross the amended verbal threshold.” In the year 2003, the New Jersey Supreme Court denied the plaintiff’s petition for certification in James. In addition, the Appellate Division published two opinions that discussed the verbal threshold post-AICRA. In Tierra v. Salazar, 356 N.J. Super. 586 (App. Div. 2003), the plaintiff submitted a report from his treating neurologist that he had sustained an injury to his neck and back, including two bulging cervical discs with thickening of the posterior ligaments and a radial tear of a lumbar disc. The doctor concluded that the injuries were permanent “within a reasonable degree of medical probability.” Nonetheless, the plaintiff was treated for only two months and missed no time from work. Although the court noted that the doctor’s report — which was designated a “certification of permanency” — was not prepared until almost a year after the termination of treatment, the court did not discuss whether the report was sufficient objective medical evidence to establish a permanent injury. Instead, the court held that the defendant’s motion for summary judgment was properly granted because the plaintiff’s condition (which required limited treatment and no lost time) cannot “be deemed to have had a serious impact on his life.” Likewise, in Thompson v. Potenza, 837 A.2d 378 (App. Div. 2003), the court held that the plaintiff failed to meet the verbal threshold. Sara Thompson injured her neck and back in an automobile accident. She went to the emergency room the next day where X-rays revealed some mild degenerative changes. She was treated by a chiropractor for seven months, who diagnosed a cervical and lumbar sprain. An MRI showed a “mild broad-based disc bulge” and an EMG confirmed cervical and lumbar radiculopathy. In her deposition, the plaintiff claimed that she had difficulty with her regular housework and lifting heavy items. However, she continued to shop, clean, cook and rear her child without assistance, and she went to the gym five days a week to exercise. The court noted that Thompson had previously been treated by a chiropractor for seven years due to neck and back pain. More important, the hospital records and the diagnostic tests after the accident revealed no significant injuries. The court concluded that “the record lacks objective medical evidence of compensable injury.” In addition, the plaintiff’s subjective complaints of pain were not sufficient to constitute a serious impact on her life. While there are few published opinions interpreting the verbal threshold after AICRA, there are many unpublished opinions each year (digested each year as part of this annual supplement). The published cases such as Jacques, James, Tierra and Thompson discuss the kinds of injuries and impacts that do not meet the threshold. In 2003, there were several unpublished opinions that found that the plaintiffs did sustain permanent injuries that had a serious impact on their lives. In Fisher v. Michniewicz, BER-L-5903-01 (decided April 4, 2003), the plaintiff sustained injuries to his neck, back and head. He was treated by a chiropractor 34 times and by an orthopedist for one year. He underwent an MRI and an EMG of his neck and back. Based upon the clinical findings and medical testing, the chiropractor certified that Fisher sustained a traumatic cervical injury with loss of motion, chronic myofascitis and multiple disc bulges. In addition, he sustained a traumatic lumbar injury with residual myofascitis, mild peripheral neuropathy and multiple disc bulges. The doctor concluded that the plaintiff’s injuries were permanent, that he will have recurrent symptomatology of pain and limitation of motion, and that he may require further medical treatment. After the accident, the plaintiff lost 1-2 weeks of work as a union electrician. When he returned, he was unable to perform his normal job functions, such as unloading trucks or carrying supplies. He was laid off from work and applied for disability benefits because he could not perform the duties of his job. In addition, he claimed that he couldn’t perform household chores, work on his collection of automobiles or engage in a normal sex life. The defendant filed a motion for summary judgment. The motion judge noted that the function of the court is to determine if the plaintiff raised a genuine issue of material fact that his injury satisfied the verbal threshold. If a genuine issue of material fact has not been raised, the court may grant summary judgment to the defendant. If a genuine issue of material fact has been raised, the motion should be denied and the resolution of the dispute left to the jury. Under the facts of this case, the motion judge found that the plaintiff provided objective medical evidence of permanent injury. In addition, Fisher established that the injury “has significantly altered his life and daily activities.” In the “totality of the circumstances,” the accident has had “a serious impact on his life.” As a result, the defendant’s motion for summary judgment was denied. In Iarrapino v. Reszkowski, A-1336-02T3 (App. Div. 2003), decided Oct. 7, 2003, the plaintiff presented a physician’s certification that she sustained a herniated disc that was permanent. In addition, she stated in her deposition that her pain was fairly constant and made it difficult for her to perform her daily activities as mother and homemaker, to sleep and to engage in marital relations (which have become physically painful and substantially reduced in frequency, causing her emotional pain). The court noted that the standard on appellate review is the same as the trial court — “whether the party opposing the motion, according that party the facts and inferences most favorable to her, has demonstrated on the motion record a sufficient prima facie showing to require the action to go to trial.” The court concluded that the plaintiff had made a prima facie showing of a permanent injury. In addition, the substantial effect of the injury on her marital relations was sufficient for a jury to determine that the injury had a serious impact on her life. Accordingly, the summary judgment for the defendant dismissing the complaint for noneconomic damages was reversed and the case remanded for trial. In Herekar v. Freeman, A-2477-02T5 (App. Div. 2003), decided Dec. 1, 2003, the plaintiff sustained a herniated disc at L3-L4 and a fracture of a vertebral body at L4. The plaintiff reported that he still continues to experience severe pain on a daily basis, which makes it difficult for him to bend properly, walk properly or lift any weight. As a result, he is limited in performing many of his daily activities as well as his job functions at work. The court found that the plaintiff provided objective medical evidence of permanent injury based upon the doctor’s certification, which documented muscle spasm three years after the accident. The court concluded that the plaintiff raised genuine issues of material fact as to permanency and seriousness, and that the issue should be presented to the jury. TORT CLAIMS ACT There are some similarities between the New Jersey Tort Claims Act and the No Fault Act. The TCA provides that claimants may not recover damages for pain and suffering unless their injuries result in a “permanent loss of bodily function.” N.J.S.A. 59:9-2(d). Under the No Fault Act, a permanent injury is defined as one where “the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment.” N.J.S.A. 39:6A-8 (Type 6). Thus, both statutes evaluate a permanent injury in terms of body function. In addition, both statutes have similar tests for determining whether a plaintiff has met the statutory threshold of permanency. In prior cases, the Supreme Court has established “a two-pronged test” for proof of damages under the TCA. First, the plaintiff must prove that he sustained “an objective permanent injury.” Second, there must be proof of “a permanent loss of bodily function that is substantial.” Thus, the TCA test is similar to the two-pronged test under the No Fault Act, which requires objective medical evidence of permanency plus proof of serious impact. The recent case of Knowles v. Mantua Township Soccer Ass’n, 176 N.J. 324 (2003), provides some insight into the Court’s current thinking as to what constitutes a substantial loss of bodily function under the TCA — an analysis that is similar to serious impact under the No Fault Act. The plaintiff, Joseph Knowles, sustained injuries to his neck and back in an automobile accident. He was treated by a chiropractor, neurologist and orthopedist. An MRI and EMG disclosed a herniated disc at L4-L5 with discogenic pain and radiculopathy. The doctors concluded that his injuries were permanent and that his continued complaints of pain were attributable to disc damage and to the fibrosis repair of muscle and ligamentous tissue. Knowles complained that: he has severe pain in his lower back that radiates into his left buttock and causes numbness in his left leg; he cannot sit or stand for more than 30 minutes without pain; he cannot walk more than a quarter mile; and the pain disturbs his sleep and makes him moody and irritable. The plaintiff asserted that his injuries have had “adverse, life-altering consequences.” He returned to work after one week but was unable to exert himself and was required to change his work schedule. He gave up a second job as a referee for high school soccer games. He was unable to complete household projects or engage in recreational activities such as baseball, softball or bowling. At the outset, the Supreme Court noted that the evaluation of an injury under the TCA requires a fact-sensitive analysis. Under the circumstances, the Court found that the plaintiff provided extensive proof of “an objective permanent injury.” In addition, the plaintiff proved that his permanent injury constituted a “permanent loss of bodily function that is substantial.” The Court concluded that the plaintiff’s proofs supported a claim of permanent injury under the TCA. Accordingly, “such evidence raises an issue for the jury and removes the case from the realm of summary judgment.” SIGNIFICANT SCARRING (TYPE 3) In Thomasson v. McQuown, 358 N.J. Super. 64 (Law Div. 2002), the court was asked to determine whether a plaintiff was required to submit a physician’s certification for an injury involving a disfiguring scar. The plaintiff claimed that her injury was sufficiently visible so as to permit an evaluation by a jury without the necessity of a physician’s certification, unlike a permanent injury which requires a physician to certify the existence of the condition. At the outset, the court noted that AICRA requires a certification that the plaintiff has sustained “an injury described above.” Thus, the requirement for a certification as to each of the six types of injury that satisfy the verbal threshold is supported by the plain language of the statute and its purpose — to deter fraud and to reduce the cost of insurance. In addition, while some injuries may be obvious, a physician’s certification is necessary not only to describe the injury but also to establish that the injury is causally related to the accident. Therefore, the court concluded that the plaintiff was required to submit a physician’s certification that she sustained a significant disfigurement or a significant scarring as the result of an automobile accident. PRE-EXISTING CONDITIONS It is not unusual for a person injured in an automobile accident to have suffered from a pre-existing medical condition: either an illness (such as arthritis or a degenerative disc) or an injury (such as a sprain or herniation). Likewise, it is not unusual for an accident victim to sustain an aggravation, exacerbation or acceleration of a pre-existing condition — whether that condition was symptomatic or asymptomatic. The case law is clear that a plaintiff may recover damages for the aggravation of a pre-existing condition; however, in order to satisfy the verbal threshold, the plaintiff must provide a comparative analysis of his condition before and after the accident. For example, in Polk v. Daconeicao, 268 N.J. Super. 568 (App. Div. 1993), a plaintiff who walked with a cane due to a prior hip injury failed to provide objective medical evidence that his prior condition was aggravated by the accident. And in Foti v. Johnson, 269 N.J. Super. 198 (App. Div. 1993), a plaintiff who suffered from pre-existing asymptomatic spondylolisthesis provided objective medical evidence that the accident triggered the symptomatology and aggravated the condition. In Ostasz v. Howard, 357 N.J. Super. 65 (App. Div. 2003), the court considered whether the adoption of AICRA changed the requirement that the plaintiff provide a comparative analysis of his pre-existing injuries and the injuries sustained in the automobile accident. At the outset, the court recognized that AICRA “substantively modified” the verbal threshold and that it would be appropriate for the judiciary to re-address the standards for determining whether an injury qualifies under the new verbal threshold. Nonetheless, the need to perform a comparative analysis deals “exclusively with process as distinguished from substance.” Thus, AICRA does not modify “the proof requirements” for a verbal threshold case and a plaintiff is still required to provide objective medical evidence that compares his condition before the accident with his condition thereafter. LOSS LIMITATIONS The No Fault Act was amended in 1997 to preclude three types of claimants from recovering damages: (1) any person who is the owner of an uninsured automobile and is injured while operating an uninsured automobile; (2) any person who pleads guilty or is convicted of driving while intoxicated; and (3) any person who acts with a specific intent to cause injury. The statute states that those persons “shall have no cause of action for recovery of economic or noneconomic loss” for injuries sustained in the accident. N.J.S.A. 39:6A-4.5. There are two prior cases in which the court determined that the loss limitation provisions do not apply. In Camp, the court held that an intoxicated minor would not be precluded from bringing an action against the social host who served him alcohol. See “A Look at No Fault in 2002,” 171 N.J.L.J. 262. In Caviglia, the court found that the application of the provisions to an uninsured driver was unconstitutional under the equal protection and due process clauses. The court stated that the total preclusion of the rights of “a seriously injured uninsured driver” to pursue a tort remedy does not bear “a real and substantial” relation to the goals of AICRA and has no “rational relationship” to the public need. See “A Look at No Fault in 2002,” 171 N.J.L.J. 262. This year, the Supreme Court granted the defendant’s Petition for Certification in Caviglia and oral argument has been heard. The court’s opinion has not yet been issued. In the recent case of Rojas v. DePaolo, 357 N.J. Super. 115 (Law Div. 2002), the court considered the application of the loss limitation provisions to an uninsured out-of-state driver. The plaintiff, Francisco Rojas, was a resident of Pennsylvania and the owner of an uninsured automobile. He was injured in an accident in New Jersey and the defendant filed a motion to dismiss the complaint since the plaintiff was uninsured. The motion was denied. First, the court noted that New Jersey law requires mandatory insurance for every automobile “registered or principally garaged in this State.” N.J.S.A. 39:6A-3. Therefore, the statute explicitly applies only to the owners of New Jersey vehicles, not to nonresidents. Likewise, the explicit provision that precludes a cause of action to an uninsured New Jersey resident does not extend to uninsured out-of-state drivers. Second, the court recognized that the No Fault Act is structured to “effect a balance” between first-party and third-party claims — the loss of the right to seek damages for noneconomic loss is compensated by the right to recover economic loss without regard to fault. In this case, the uninsured driver from Pennsylvania was not entitled to receive PIP benefits under New Jersey law (as he would have been under the “deemer statute” if he were insured). Therefore, there is no basis to preclude his cause of action for noneconomic loss. Finally, the defendant argued that an uninsured New Jersey driver would be barred from suit by the statute and that it would be illogical to permit an uninsured out-of-state driver to sue. The court noted that the Legislature could so determine but, without legislative direction, the court would not dismiss a claim by an out-of-state driver who was uninsured. CERTIFICATIONS OF PERMANENCY As initially enacted in 1972, the No Fault Act barred civil suits for soft-tissue injuries unless the plaintiff’s medical expenses exceeded a monetary threshold. In 1988, the statute was amended to replace the monetary threshold with a verbal threshold, but it did not include any standards for compliance. Accordingly, if a defendant filed a motion for summary judgment to dismiss a complaint, the courts would review the medical reports submitted by the doctors for both parties to determine if the plaintiff’s injuries were sufficient to satisfy the threshold. One of the purposes of AICRA was to create a more objective standard for determining whether a plaintiff satisfied the verbal threshold. Thus, the 1998 amendments require a plaintiff who is subject to the limitation on lawsuit option (the verbal threshold) to provide a certification — from “the licensed treating physician or a board-certified licensed physician to whom the plaintiff was referred by the treating physician” — that the injuries fall within one of the six types set forth in the statute. The certification must be based on “objective clinical evidence, which may include medical testing.” There have been three previous cases dealing with physician’s certifications. In Pensabene, the court held that a chiropractor was a physician and could provide a certification. In Watts, the court considered the appropriate penalty for the failure to submit a timely certification and held that the complaint should be dismissed without prejudice. See “A Look at No Fault in 2001,” 167 N.J.L.J. 289. In Rios, the court noted that a physician’s certification may be challenged by the defendant and that the filing of the certification by itself is not enough to preclude summary judgment. See “A Look at No Fault in 2002,” 171 N.J.L.J. 263. This year, there have been five new cases dealing with the physician’s certification. Listed in chronological order, they are: Konopka (equitable estoppel); Tierra (form of certification); Casinelli (substantial compliance); Thomasson (fairness or equity); and Hernandez (equitable estoppel). In Konopka v. Foster, 356 N.J. Super. 223 (App. Div. 2002), the plaintiff submitted a report from her treating doctor within one month after the defendant filed an answer, but failed to serve a certification from the same physician until 15 months later rather than within 60 days as required by the statute. Nonetheless, the defendant waited for more than a year — and until the statute of limitations had run — before filing a motion to dismiss the complaint. The trial court granted the motion but the Appellate Division reversed and remanded. At the outset, the court noted that the submission of a medical report does not substantially comply with the requirements of the statute because a report is not certified and does not subject a doctor to a charge of perjury for false-swearing. In addition, the late service of a certification does not cure the plaintiff’s statutory noncompliance because the time limitations were intended to provide a means to terminate nonmeritorious suits without unnecessary defense costs. Nonetheless, the court observed that the physician’s certification was designed as an antifraud measure to ensure the legitimacy of a claim. The requirement to submit a certification is procedural in nature and is related to the “sufficiency” of the claim, not the “establishment” of a cause of action. Accordingly, the failure to submit a timely certification could be excused under the doctrine of equitable estoppel if the defendant acted intentionally to induce inaction by the plaintiff. In this case, the defendant did not file a motion promptly after the 60-day period expired. Instead, his counsel permitted discovery to continue, answered interrogatories, deposed the plaintiff, arranged for a medical examination and participated in mandatory automobile arbitration. In fact, the defendant waited for almost a year and until the statute of limitations had run before filing the motion. The court stated that a claim of equitable estoppel can be raised as a matter of law under the facts set forth in this case; however, no factual record had been made at the trial level on the issue of estoppel. Thus, the case was remanded to the trial court to determine if the defendant acted intentionally or in such a manner as to induce inaction, and whether the plaintiff acted in reasonable detrimental reliance. In Tierra v. Salazar, 356 N.J. Super. 586 (App. Div. 2003), the court on its own initiative questioned the form of the physician’s certification. The plaintiff submitted a report from his treating doctor that opined that the injuries were permanent. The report contained the caption “Certification of Permanency” and was accepted as such by the defendant and the trial court. Nonetheless, the Appellate Division emphasized that one of the purposes of AICRA was to reduce litigation by deterring doctors from filing false reports. In order to do so, the statute requires the doctor’s statements to be certified and creates a fourth degree crime if the person executing the certification knowingly makes a false statement. The court noted that the form of the certification was not briefed by the parties and was not part of its holding; however, the court expressed the opinion that the doctor’s letter was not a certification because it did not contain the words “under penalty of perjury.” Nonetheless, the court stated that a complaint with an improper certification should not be dismissed before the plaintiff has been given a reasonable opportunity to cure the defect. While the Konopka court rejected the doctrine of substantial compliance (in favor of equitable estoppel), another appellate panel held in Casinelli v. Manglapus, 357 N.J. Super. 398 (App. Div. 2003), that the substantial compliance with the procedural requirements of AICRA would preclude the dismissal of a complaint with prejudice. The plaintiff, Jenevieve Casinelli, submitted numerous medical reports during the course of discovery and within the 60-day period prescribed for submitting a physician’s certification. The defendant waited until the statute of limitations had run before filing a motion to dismiss the complaint. In response to the motion, the plaintiff submitted certifications from two doctors whose reports had previously been attached to answers to interrogatories. The defendant filed a motion for summary judgment but the motion judge refused to dismiss the complaint. At the outset, the Appellate Court noted that the underlying purpose of AICRA is to reduce the cost of automobile insurance by eliminating claims that do not meet the verbal threshold. AICRA was not designed to preclude claims that meet those requirements. The court recognized that while a physician’s certification is one of several methods employed by the Legislature to ensure that personal injury claims are valid, it should evaluate whether the actions taken by the plaintiff — the submission of medical reports within 60 days followed by certifications that “memorialize” the reports — have furthered the legislative purpose “in the same or similar manner that the physician certification would have done had it been timely filed.” The court stressed that substantial compliance is a doctrine based on justice and fairness and is designed “to avoid the harsh consequences that flow from technically inadequate actions that nonetheless meet a statute’s underlying purpose.” Accordingly, the court held that a plaintiff in a verbal threshold case can avoid dismissal for failing to file a timely physician’s certification if the plaintiff can prove substantial compliance with the statute’s procedural requirements. The court noted that the issue was raised for the first time on oral argument and was not briefed by the parties. Therefore, the court remanded the case to the trial court to conduct further proceedings to determine whether the actions of the plaintiff substantially complied with the statute. The court concluded with guidance for future cases, warning that the filing of a physician’s certification, although untimely, is “a prerequisite to consideration of application of the doctrine of substantial compliance in a verbal threshold case.” In Thomasson v. McQuown, 358 N.J. Super. 64 (Law Div. 2003), the plaintiff sustained a disfiguring scar; however, she never filed a certification because the injury was sufficiently visible and obvious so as to render a physician’s certification of “limited utility.” The defendant filed a motion for summary judgment and the trial court agreed that a certification is necessary for all types of injury under the verbal threshold. (See previous discussion in “Significant Scarring, Type 3,” S-6.) Nonetheless, the court denied the motion because the dismissal of the complaint would be unjust. The court noted that the defendant did not file the motion to dismiss until after the expiration of the statute of limitations. Therefore, any dismissal at this time will operate as a dismissal with prejudice. Nonetheless, there is no dispute that: the plaintiff’s injuries were serious and permanent; the plaintiff alleges economic losses that will be subject to a trial; and the defendant has shown no prejudice. Accordingly, the court held that there is no basis in fairness or equity to dismiss the plaintiff’s claims for noneconomic loss. In Hernandez v. Stella, 359 N.J. Super. 415 (App. Div. 2003), the court re-enforced the Casinelli warning but applied the equitable estoppel doctrine of Konopka. The plaintiff filed suit for personal injuries sustained in an automobile accident but failed to file a physician’s certification. The parties engaged in discovery, answered interrogatories and participated in arbitration. The defendant, however, waited until three months after the arbitration — seven months after the statute of limitations expired — to file a motion to dismiss the complaint. The court found that the doctrine of substantial compliance did not apply because the plaintiff never filed a physician’s certification. Nonetheless, the court noted that the defendant’s failure to file a motion until after the completion of arbitration interfered with the legislative goal of preserving judicial resources and weeding out frivolous claims at an early stage. Under the circumstances, the defendant would be equitably estopped from raising the absence of a physician’s certification as a defense and the plaintiff’s complaint would not be dismissed.

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