Sofia Perez v. Cecilia Perez ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1449-22
SOFIA PEREZ,
Plaintiff-Appellant,
and
CECILIA PEREZ,
Plaintiff,
v.
GABRIELA VILLASENOR,
and ESTAFANIA VILLASENOR,
Defendants-Respondents.
______________________________
Argued January 17, 2024 – Decided January 24, 2024
Before Judges Haas and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-2959-19.
David A. Gardner argued the cause for appellant.
Brian Michael Bartlett argued the cause for respondents
(Leyden, Capotorto, Ritacco, Corrigan & Sheehy,
attorneys; Lauren Chaump, of counsel and on the brief).
PER CURIAM
Plaintiff Sofia Perez appeals from the Law Division's November 18, 2022
order denying her motion for reconsideration of the trial court's October 3, 2022
order granting defendants' Gabriela Villasenor and Estefania Villasenor's
motion for summary judgment and dismissing her complaint with prejudice. 1
Because the trial court failed to adequately address the factual and legal issues
raised by the parties, we reverse and remand for further proceedings.
On November 29, 2017, plaintiff was driving her car and was rear-ended
by defendant Gabriela Villasenor. Plaintiff alleged she incurred injuries as a
result of the accident.
Plaintiff was insured and had elected the verbal threshold limitation as
permitted under the Automobile Insurance Cost Reduction Act (AICRA),
N.J.S.A. 39:6A-1.1 to -35. Pursuant to N.J.S.A. 39:6A-8(a), an insured who
makes this selection may maintain an action for noneconomic losses only if she
1
Plaintiff did not file a timely notice of appeal from the trial court's order
granting defendants' motion for summary judgment. Therefore, we previously
issued an order limiting plaintiff's appeal to her challenge to the denial of her
motion for reconsideration.
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"has sustained a bodily injury which results in death; dismemberment;
significant disfigurement or significant scarring; displaced fractures; loss of a
fetus; or a permanent injury within a reasonable degree of medical probability,
other than scarring or disfigurement." (emphasis added).
N.J.S.A. 39:6A-8(a) requires a plaintiff seeking to recover noneconomic
losses to file "a certification from the licensed treating physician or a board -
certified licensed physician to whom the plaintiff was referred by the treating
physician." Under penalty of perjury, the certification must state that the
plaintiff has sustained at least one of the injuries described above. Ibid. The
physician's certification must be based on objective clinical evidence, which
may include medical testing, but this testing cannot be "dependent entirely upon
subjective patient response." Ibid. The physician must file the certification
within sixty days following the date of the answer to any complaint filed by the
plaintiff, although an extension of up to sixty days may be granted by the trial
court upon a finding of good cause. Ibid.
Plaintiff filed her complaint against defendants 2 on November 29, 2019.
Plaintiff alleged in count one that she sustained "serious and permanent personal
2
Plaintiff named the driver of the car that struck her vehicle, Gabriela
Villasenor, and Gabriela's parent, Estefania Villasenor, as defendants.
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3
injuries requiring the care and treatment of physicians, hospitalizations[,] and
medication," and that she would continue to suffer "pain, suffering[,] and a loss
of enjoyment of life as well as such further damages proven at time of trial." 3
Because plaintiff was seeking noneconomic damages for her injuries, AICRA
required that she prove that her injuries fell within one of the six categories set
forth in N.J.S.A. 39:6A-8(a).
Defendant filed an answer to the complaint on January 3, 2020. Plaintiff
did not file the treating physician certification required by N.J.S.A. 39:6A -8(a).
However, during the discovery period, plaintiff provided answers to
defendants' interrogatories. Asked to provide a "detailed description of [the]
nature, extent[,] and duration of any and all injuries[,]" plaintiff replied that she
suffered a "[c]losed displaced intraarticular fracture of the head of the radius of
the right elbow." She claimed this fracture was also permanent under the
separate category for permanent injuries set forth in N.J.S.A. 39:6A-8(a). In
addition, plaintiff asserted she had incurred a permanent
"[a]ggravated/[e]xacerbated shoulder tear."
3
Plaintiff's complaint included a second count alleging that a passenger in her
car, Cecilia Perez, also suffered injuries. The outcome of any proceedings
involving this individual is not clear from the record and none of the parties'
arguments on appeal concern this individual.
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4
In her interrogatory answers, plaintiff described the diagnostic tests
conducted of her elbow injury. Plaintiff wrote that x-rays taken on December
12, 2017 "showed [a] displaced intraarticular fracture of [her] right radial head."
A follow-up x-ray on January 8, 2018 "revealed [full] healing with no further
displacement."
Sometime during discovery, plaintiff either provided, or defendants
obtained on their own, copies of two written reports prepared by Dr. Kevin C.
McDaid, who was plaintiff's treating physician. McDaid's December 19, 2017
report stated that "[e]lbow x-rays . . . taken in the Emergency Room" on that
date "show[ed] a minimally displaced intraarticular radial head fracture."
McDaid assessed the injury as a "[c]losed displaced fracture of head of right
radius," and prescribed treatment appropriate for a "[c]losed displaced fracture
of head of right radius."
In his February 23, 2018 report, McDaid's assessment of the injury
remained the same. He noted there had "been no further displacement" and
continued to provide treatment to plaintiff for a "[c]losed displaced fracture of
head of right radius." Plaintiff did not list McDaid or any other physician as an
expert in her interrogatory answers.
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Defendants retained an expert, Dr. Joseph R. Zerbo, who conducted an
examination of plaintiff on June 21, 2021. Zerbo also reviewed plaintiff's
medical records, including the two McDaid reports. Zerbo prepared reports in
which he stated that plaintiff suffered a "[n]on-displaced healed fracture of the
right radial head" in her elbow and that this fracture was now fully healed and,
therefore, not permanent.
After the discovery period ended on April 30, 3022, the parties went to
arbitration on July 14, 2022. Arbitration was unsuccessful.
On August 2, 2022, defendants filed a motion for summary judgment.
Citing Zerbo's opinion that plaintiff's elbow injury was not permanent,
defendants argued that her complaint had to be dismissed under N.J.S.A. 39:6A-
8(a).
In their brief, defendants relied upon Zerbo's expert opinion that plaintiff's
elbow injury was not permanent and that plaintiff had failed to name an expert
who could contradict Zerbo's position on the issue of permanency. Defendants
also pointed out that Zerbo had opined that plaintiff suffered a "non-displaced
fracture of the radial head [that] had gone into complete radiographic and
clinical healing."
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Plaintiff filed opposition to the motion on August 30, 2022. Plaintiff's
principal argument was that she had suffered a displaced fracture in the accident
and that a displaced fracture is one of the injuries listed in N.J.S.A. 39:6A -8(a)
that permits the insured to seek noneconomic damages. A plaintiff who has
suffered a displaced fracture does not have to also show that the injury is
permanent. Permanency is a separate category of injury covered by N.J.S.A.
39:6A-8(a). Villanueva v. Lesack, 366 N.J. Super. 564, 565 (App. Div. 2004).
Significantly, plaintiff no longer claimed that any of her injuries were
permanent..
In addition, plaintiff submitted a late physician's certification from
McDaid. In this August 10, 2022 submission, McDaid certified "within a
reasonable degree of medical probability that [plaintiff] has sustained the
following injuries to body parts as a result of the [November 29, 2017] motor
vehicle accident: minimally displaced intraarticular radial head fracture of the
right elbow." McDaid further stated that the December 12, 2017 and Febru ary
22, 2018 right elbow x-rays cited in his reports supported his diagnosis.
On September 9, 2022, the trial court heard oral argument on defendants'
motion. Plaintiff's attorney argued that plaintiff suffered a displaced fracture of
her elbow and that this injury enabled her to seek noneconomic damages under
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N.J.S.A. 39:6A-8(a). Defendants' attorney responded by asserting that plaintiff
had failed to file a "certificate of permanency" or any "expert report speaking to
permanency." The trial court reserved decision.
On October 3, 3022, the court rendered a brief written decision granting
defendants' motion for summary judgment. The order mistakenly stated that
defendants' motion was "unopposed." The court's decision did not refer to
plaintiff's argument that she suffered a displaced elbow fracture that enabled her
to vault the verbal threshold requirement of N.J.S.A. 39:6A-8(a). The court did
not attempt to resolve the factual dispute between the parties as to whether the
plaintiff had a displaced or a non-displaced fracture.
Instead, the court relied upon a case setting forth the factors a plaintiff
must prove to demonstrate she suffered a permanent injury, Jacques v. Kinsey,
347 N.J. Super. 112, 117 (Law Div. 2001), and concluded:
In the present case, plaintiff is subject to the limitation
on lawsuit threshold. Accordingly, plaintiff is required
to prove a permanent injury through objective, credible
medical evidence. Plaintiff has not provided any expert
opinion that she sustained a permanent injury based on
objective, credible medical evidence.
Accordingly, [p]laintiff cannot sustain [her] burden of
proof and thus, [d]efendant's [m]otion for [s]ummary
[j]udgment is hereby GRANTED.
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Plaintiff thereafter filed a motion for reconsideration. Plaintiff argued that
in opposition to the summary judgment motion, she submitted McDaid's reports
stating that plaintiff had sustained a displaced elbow fracture that enabled her to
pass the verbal threshold without regard to whether the injury was permanent.
Plaintiff also asserted that although it was late, the court should accept and
consider McDaid's certification, which essentially repeated the information set
forth in McDaid's reports and in her answers to interrogatories.
Following oral argument, the trial court denied plaintiff's motion on
November 18, 2022. In a short written opinion, the court ignored plaintiff's
answers to interrogatories, McDaid's reports, and defendants' own expert 's
reports that summarized McDaid's findings. Instead, the court incorrectly stated
that plaintiff failed to present any evidence that she had a displaced fracture
"before the end of the discovery period and arbitration." Finding that
"[a]mendments to interrogatory answers are impermissible" absent exceptional
circumstances, the court declined to reconsider its prior dismissal of plaintiff's
action. This appeal followed.
On appeal, plaintiff argues that the trial court erred by denying her motion
for reconsideration. We agree.
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We review the denial of a motion for reconsideration to determine whether
the trial court abused its discretion. Branch v. Cream-O-Land Dairy, 244 N.J.
567, 582 (2021). Reconsideration should only be granted in :those cases which
fall into that narrow corridor in which either 1) the [c]ourt has expressed its
decision upon a palpably incorrect or irrational basis, or 2) it is obvious that the
[c]ourt either did not consider, or failed to appreciate the significance of
probative, competent evidence[.]" Cummings v. Bahr, 295 N.J. Super. 374, 384
(App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch.
Div. 1990)). Therefore, we have held that "the magnitude of the error cited must
be a game-changer for reconsideration to be appropriate." Palombi v. Palombi,
414 N.J. Super. 274, 289 (App. Div. 2010).
After reviewing the entire record in the light of this standard, we are
convinced that the trial court mistakenly exercised its discretion when it refused
to reconsider its decision granting summary judgment to defendants. The court's
decision to grant summary judgment was "palpably incorrect" because the court
found that plaintiff's complaint had to be dismissed because she did not prove
she sustained a permanent injury in the accident. Here, however, plaintiff was
not alleging a permanent injury. Instead, she claimed to have suffered a
displaced fracture of her elbow.
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"To vault AICRA's verbal threshold, an accident victim need only prove
an injury as defined in the statute. Davidson v. Slater, 189 N.J. 166, 181 (2007).
A displaced fracture is specifically listed in N.J.S.A. 39:6A-8(a) as one of the
six categories of injuries that enable a plaintiff to get over the verbal threshold.
A permanent injury is an entirely separate category under the statute.
Indeed, the Legislature has categorized displaced
fractures separate from other injuries that are required
to be permanent to permit compensation for
noneconomic loss; instead, displaced fractures are
listed in the statute along with death, dismemberment,
loss of a fetus, and significant disfigurement or
scarring, forms of harm which, consistent with our
jurisprudence, have allowed a plaintiff to sue for
noneconomic damages without the need for a plaintiff
to prove the injury has had a serious impact upon her
life.
[Villanueva, 366 N.J. Super. at 569.]
Therefore, the trial court clearly erred by holding that plaintiff was
required to demonstrate that she had sustained a permanent injury. All plaintiff
had to show was that she had suffered a displaced fracture in the accident.
The trial court did not address plaintiff's claim on this point. It failed to
even mention the issue, even though both parties had raised it at oral argument.
Like every other case that comes before our courts, the resolution of this matter
"required a careful analysis and the requisite findings to insure a just result."
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Bailey v. Bd. of Rev., 339 N.J. Super. 29, 33 (App. Div. 2001). This case cried
out for "a clear and concise determination that [plaintiff] [had] been heard and
[her] arguments considered." Ibid.That did not occur here. Because the trial court granted summary
judgment without considering or appreciating "the significance of probative,
competent evidence," the court should have reconsidered its decision.
Cummings, 295 N.J. Super. at 384.
The trial court should also have revisited its summary judgment decision
because there was clearly a dispute between the parties as to whether plaintiff
suffered a displaced fracture or a non-displaced fracture. While the court found
that plaintiff needed to present an expert in order to prove a permanent injury,
it made no ruling concerning whether an expert was needed to prove the status
of plaintiff's fracture or whether McDaid, as the treating physician, was
competent to perform this analysis. Because there was a genuine issue as to
these material facts, summary judgment was inappropriate, absent a full airing
and resolution of the matter by the court. R. 4:46-2.
Because of this, the trial court's denial of plaintiff's motion for
reconsideration cannot stand. The court's rationale for that decision lacked a
cogent basis in the record. The court found that plaintiff raised the issue of the
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displaced fracture for the first time in its reconsideration motion. However, as
set forth in detail above, plaintiff provided defendants and the court with her
answers to interrogatories and McDaid's reports during the discovery period.
Defendants' expert referred to this information in his reports. Thus, the court's
finding that "[p]laintiff did not present that evidence before the end of the
discovery period and arbitration" is clearly incorrect.
To be sure, plaintiff's physician certification was woefully out of time.
However, the trial court did not directly address this issue in any of its decisions.
It is well established that a court should not automatically dismiss a plaintiff's
complaint when the certification required by N.J.S.A. 39:6A-8(a) is filed late.
Casinelli v. Manglapus, 181 N.J. 354, 365 (2004). As the Supreme Court stated:
[W]e view the tardy presentation of a physician
certification as falling under the broad umbrella of
failure to make discovery, thus subject to the arsenal of
remedies provided in our rules for such procedural
errors. Put another way, the [trial] court has available
to it, along with dismissal, where warranted, discovery-
type sanctions such as orders to compel, the award of
reasonable expenses incurred in obtaining the
certification, and counsel fees. See R. 4:23-1 to -5. In
each case, the court should assess the facts, including
the willfulness of the violation, the ability of plaintiff
to produce the certification, the proximity of trial, and
prejudice to the adversary, and apply the appropriate
remedy. That methodology provides judges with
discretion to choose a response that is proportionate to
the procedural stimulus; saves for trial the meritorious
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claims of truly injured victims; and allows dismissal of
cases in which a plaintiff cannot or will not supply a
certification or in which a plaintiff's conduct has
irremediably prejudiced the defendant.
[Casinelli, 181 N.J. at 365.]
Because the trial court did not fully consider the issue of an appropriate remedy
for plaintiff's late submission of the physician's certification, we must remand
this matter to enable that to occur.
In sum, the trial court's decision on the summary judgment motion was
based upon an incorrect legal premise, namely, that a plaintiff must demonstrate
she has sustained a permanent injury to vault AICRA's verbal threshold. When
plaintiff brought this mistake to the court's attention and again pointed out the
information on which her displaced fracture claim was based, the court should
have reconsidered its prior decision and rendered a new decision supported by
detailed findings of fact and conclusions of law.
We therefore reverse the trial court's denial of plaintiff's motion for
reconsideration and remand this matter for further proceedings. We suggest that
the court, as an important first step, conduct a case management conference with
the parties to discuss the issues that need to be resolved, the manner in which
this resolution should occur, and a time schedule for the completion of these
tasks.
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In remanding, we make no determination respecting the sufficiency of
plaintiff's injury or whether it in fact satisfied the verbal threshold. Nothing
within this opinion forecasts any views on the merits of plaintiff's claims against
defendants nor on the question of whether defendants may be entitled to prevail
on these issues once they are fully considered by the court.
Reversed and remanded. We do not retain jurisdiction.
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