United States District Court, M.D. Pennsylvania
KEITH CHARLES JOHNSON and JANELLE ROLLINS, his wife, Plaintiffs,
BETH DAVENPORT and VICTORIA L. MURPHY, Defendants.
instant tort action arises from a motor vehicle accident
wherein Plaintiffs, Keith Charles Johnson
("Johnson") and Janelle Rollins
("Rollins"), his wife, allegedly suffered injuries
caused by Defendant Victoria L. Murphy ("Murphy")
while driving Defendant Beth Davenport's
("Davenport"), Jeep Wrangler on Interstate 80 in
New Jersey. (Doc. 1, Complaint). Before the Court is a motion
for summary judgment (Doc. 17) filed by Defendants based upon
an alleged failure to satisfy the verbal threshold
requirements of N.J.S.A, § 39:6A. This motion has been
fully briefed by both parties and is now ripe for
disposition. This Court has subject matter jurisdiction over
this matter pursuant to 28 U.S.C. § 1332, diversity
March 29, 2012, while traveling on Interstate 80 in Morris
County, New Jersey, Plaintiffs were struck from behind by
Defendant Davenport's Jeep Wrangler, being driven by
Defendant Murphy. (Doc. 1, Complaint, at ¶¶ 6, 8-9;
Doc. 17, Defs.' MSJ, at ffl[ 3 and 4; Doc. 18,
Pltfs.' Answer to MSJ, at ¶¶ 3 and 4). As a
result of the accident, Plaintiff Johnson alleges he suffers
from pain and soreness in his back, hip, and thigh area, and
pain from the left calf area down to and across his foot to
his left big toe (Doc. 18-4, Johnson Dep., at 13-15).
Johnson has been seen by a number of doctors as a result of
this incident. He was seen by his primary care physician, Dr.
Chityatt in New York City, where Johnson works, and was then
referred to Dr. Balkin, a physiatrist. Dr. Perna continued
the care for Johnson once Dr. Balkin left the practice.
Johnson had an MRI of his lumbar spine and a number of
epidural injections. (Doc. 23-1, Pltfs.' SMF, Ex. A, Dr.
Epstein Report). The MRI of the lumbar spine showed a large
left foraminal herniated disc at 5-S1, broad disc bulges at
3-4 and L4-5, and a small central herniated disc at L4-5.
(Doc. 18-2, Johnson MRI Report). He underwent laser surgery
in Texas with Dr. Williams on May 1, 2014. (Doc. 23-1,
Pltfs.' SMF, Ex. A, Dr. Epstein Report; Doc. 18-4,
Johnson Dep., at 29). Johnson was later examined by Dr.
Epstein of Northeastern Rehabilitation Associates, P.C. on
February 16, 2015. Dr. Epstein noted that Johnson's left
L5 radiculopathy and the distribution of his symptoms were
consistent with left L5 nerve root injury. (Doc. 23-1,
Pltfs.' SMF, Ex. A, Dr. Epstein Report). Dr. Epstein
provides that Johnson has evidence of left SI radiculopathy
and has lingering left L5-S1 symptoms. In an addendum to his
February office note, Dr. Epstein added on June 1, 2016, that
Johnson's left L5 radiculopathy and left SI
radiculopathy, with lumbar disc protrusion (associated
annular tear), all constitute serious bodily injuries and are
referable to the motor vehicle accident. (Id.)
her husband, Plaintiff Rollins has also seen a number of
doctors since the incident. As a result of the accident,
Rollins alleges she suffered injuries to the back of her
head, her lower neck and back, and overall bodily soreness.
(Doc. 18-6, Rollins Dep., at 23-24). A MRI of her lumbar
spine indicates Rollins has an annular tear at the L4/L5
level as well as a mild disc bulge at the L5/S1 level (Doc.
18-5, Rollins MRI Report). Dr. Epstein also examined Rollins
and found a history of cervical sprain/strain referable to
the accident. Dr. Epstein further noted that she has a
bilateral sacroiliac sprain/strain and bilateral lower lumbar
facet sprain/strain also referable to the accident. (Doc.
23-2, Pltfs.' SMF, Ex. B, Dr. Epstein Report). Dr.
Epstein also provided an addendum to his initial report for
Rollins and states that her diagnoses of cervical
sprain/strain and sacroiliac sprain/strain both constitute
serious bodily injuries and are a result of the auto
Standard of Review
judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact, and the moving
party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). An issue is "genuine" if there
is sufficient evidence with which a reasonable jury could
find for the non-moving party. Anderson v. Liberty Lobby.
Inc.. 477 U.S. 242, 248 (1986); Childers v.
Joseph. 842 F.2d 689, 693-94 (3d Cir. 1988Ucitine
Anderson. 477 U.S. at 248). A factual dispute is
"material" if it might affect the outcome of the
case. Anderson. 477 U.S. at 248. In determining
whether an issue of material fact exists, the court must
consider the evidence in the light most favorable to the
non-moving party. Skerski v. Time Warner Cable Co..
257 F.3d 273, 278 (3d Cir. 2001); White v. Westinghouse
Elec. Co.. 862 F.2d 56, 59 (3d Cir. 1988).
seeking summary judgment always bears the initial burden of
informing the court of the basis of its motion and
identifying those portions of the record that it believes
demonstrates the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett. 477 U.S. 317, 322 (1986).
The non-moving party then has the burden to "come forth
with 'affirmative evidence, beyond the allegations of the
pleadings, ' in support of its right to relief."
U.S. Bank. Nat'l Ass'n v. Greenfield. Civ.
Action No. 1:12-CV-2125, 2014 WL 3908127, at *2
(M.D. Pa. Aug. 11, 2014) (quoting Pappas v. City of
Lebanon. 331 F.Supp.2d 311, 315 (M.D. Pa. 2004)).
"If a party fails to properly support an assertion of
fact or fails to properly address another party's
assertion of fact as required by Rule 56(c), " a court
may grant summary judgment or consider the fact undisputed
for purposes of the motion. Fed.R.Civ.P. 56(e)(2-3).
Applicability of the Deemer Statute
parties do not dispute that New Jersey law applies to this
cause of action. In New Jersey, the Automobile Insurance
Cost Reduction Act ("AICRA") was enacted to control
the rising cost of automobile insurance and to achieve lower
insurance premiums. See N.J.S.A. § 39:6A-1.1, seq;
Dyszel v. Marks. 6 F.3d 116, 119-20 (3dCir. 1993).
Limitations were established under AICRA in filing lawsuits
for non-economic damages in automobile cases and was intended
to foreclose recovery for injuries that are not serious or
permanent. See Serrano v. Serrano. 874 A.2d 1058,
1062 (N.J. 2005).
buying automobile insurance choose between two types of
coverage - full tort and basic tort. The full or traditional
tort option, allows unrestricted recovery of non-economic
damages. N.J.S.A. § 39:6A-8(b). The insured who elects
that option pays a higher premium in return for the unlimited
right to sue. The basic tort option, also known as the
"verbal threshold" option, allows recovery for
non-economic losses only if the injuries fall into one or
more of six enumerated statutory categories. N.J.S.A. §
39:6A-8(a). Those categories of injuries are: (1)
(2) dismemberment; (3) significant disfigurement or
significant scarring; (4) displaced fractures; (5) loss of
fetus; or (6) a permanent injury within a reasonable degree
of medical probability, other than scarring or disfigurement,
N.J S.A. § 39:6A-8(a). An injury is considered to be
permanent "when the body part or organ, or both, has not