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Johnson v. Davenport

United States District Court, M.D. Pennsylvania

December 21, 2016



          KOSIK, JUDGE

         The 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 jurisdiction.[1]

         I. Background

         On 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).

         Plaintiff 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.)

         Like 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 accident. (Id.)

         II. Standard of Review

         Summary 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).

         A party 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).

         III. Discussion

         A. Applicability of the Deemer Statute

         The parties do not dispute that New Jersey law applies to this cause of action.[2] 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).

         Persons 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)

         death; (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).[3] An injury is considered to be permanent "when the body part or organ, or both, has not healed ...

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