Preview:

a1828-05.opn.html

N.J.S.A. 39:6A-1 to -35, a comparative analysis of prior injuries with those sustained in the underlying accident pursuant to Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993). We now reverse."> Original Wordprocessor

Version
(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version

This case can also be found at *CITE_PENDING*. (NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1828-05T31828-05T3 EVILLIN LOPEZ, Plaintiff-Appellant, vs. PEARSON, INC., PRENTICE HALL, and JAMES E. GAGNON, Defendants-Respondents. __________________________________

Argued October 5, 2006 - Decided November 28, 2006 Before Judges Lefelt and Sapp-Peterson. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-2472-03. John T. Brost argued the cause for appellant (Palmisano & Goodman, attorneys; Mr. Brost, on the brief). F. Herbert Owens, III argued the cause for respondents (Sweeney & Sheehan, attorneys; Mr. Owens, on the brief). PER CURIAM Plaintiff Evillin Lopez appeals from the June 10, 2005 order granting summary judgment in favor of defendants, Pearson, Inc., Prentice Hall, and James E. Gagnon, dismissing her complaint for failing to provide, under the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1 to -35, a comparative analysis of prior injuries
file:///C|/Users/Peter/Desktop/Opinions/a1828-05.opn.html[4/20/2013 2:57:45 PM]

a1828-05.opn.html

with those sustained in the underlying accident pursuant to Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993). We now reverse. This matter arises out of a motor vehicle accident occurring on July 15, 2000, in which a vehicle operated by Gagnon struck plaintiff's vehicle in the rear. On June 24, 2002, plaintiff filed a complaint alleging negligence against Gagnon, as well as Gagnon's employer, Prentice Hall, and its parent company, Pearson, Inc., to whom the vehicle was leased. Plaintiff sought economic and non-economic damages for injuries resulting from the motor vehicle accident. Defendants moved for summary judgment arguing: (1) that plaintiff failed to demonstrate by objective, medical evidence that the claimed injuries had a serious impact upon her life and (2) because plaintiff had sustained similar injuries in two prior accidents, she was required but failed to provide the requisite comparative analysis under Polk. Plaintiff opposed the motion contending she was not subject to the verbal threshold because Gagnon, at the time of the accident, was operating a commercial auto; the type of motor vehicle which does not trigger application of the verbal threshold statute. Plaintiff next argued that even if her injuries were subject to the verbal threshold, she presented sufficient proof to vault the statutory requirements under AICRA. Finally, with respect to the Polk analysis, plaintiff indicated that efforts to locate earlier records had proved unsuccessful, but, in any event, for the ten years preceding the underlying accident, she had been pain free and had received no treatment related to those earlier injuries; therefore, no Polk analysis was required and, if required, her expert had engaged in the appropriate analysis. Relying upon Giordano v. Allstate Ins. Co., 260 N.J Super. 329 (App Div. 1992), the motion judge found that defendants could raise the verbal threshold defense because, at the time of the accident, Gagnon was operating a vehicle subject to AICRA. The motion judge also agreed that because plaintiff had been involved in two previous accidents, a comparative analysis of those injuries with plaintiff's current injuries was required. The judge, however, denied summary judgment because discovery was still incomplete and because she did not regard plaintiff's effort to secure the earlier medical records "an exhaustive search." Plaintiff moved for reconsideration of that portion of the March 4, 2005 order allowing defendants to raise the verbal threshold defense. Plaintiff asserted that at the time defendants filed their summary judgment motion, their moving papers contained no facts that would support "their contention that [they] were eligible to assert the verbal threshold defense." Plaintiff pointed out that it was not until she argued in her opposing papers that the verbal threshold statute did not apply, did defendants, in their reply papers, for the first time describe Gagnon's vehicle as a Dodge Caravan. Plaintiff argued that "[t]here had been no discovery on this issue." Thus, "a factual issue

file:///C|/Users/Peter/Desktop/Opinions/a1828-05.opn.html[4/20/2013 2:57:45 PM]

a1828-05.opn.html

[arose] as to whether that vehicle [was] actually a van used in commercial purposes." The motion judge denied reconsideration. She concluded there was no material dispute as to the type of vehicle defendant Gagnon was operating, namely, one required to maintain PIP coverage. She also found that the "vehicle was designed to . . . transport primarily passengers rather than the cargo. As a result it's a stationary type vehicle, and under the Giordano case . . . it's considered an automobile, and this defendant is able to assert the verbal threshold defense." By the time the parties completed discovery, plaintiff still had not provided any further records related to the earlier accidents. Defendants renewed their motion for summary judgment. The court heard oral argument on June 10, 2005, and granted the motion, finding that although plaintiff's expert attributed her current complaints to the underlying accident, "there's no comparison or explanation why these findings on the MRI should be attributable to this accident and not to the earlier accident." On June 14, 2005, the Supreme Court decided DiProspero v. Penn, 183 N.J. 477 (2005), and Serrano v. Serrano, 183 N.J. 508 (2005), holding that the 1999 amendments to AICRA do not require proof of a serious impact upon life as a condition for recovery of non-economic damages. DiProspero, supra, 183 N.J. at 481-82; Serrano, supra, 183 N.J. at 510. In light of these two decisions, plaintiff moved for reconsideration. Plaintiff contended it was unclear whether summary judgment was granted on the serious impact issue or based upon the Polk comparative analysis issue. Additionally, plaintiff argued that the court should have only granted partial summary judgment because plaintiff's complaint included a claim for economic losses. The court granted reconsideration, reinstated plaintiff's economic claims, and clarified that the dismissal of the non-economic claims was based solely upon plaintiff's failure to provide a comparative analysis of her prior injuries with those sustained in the underlying accident. Plaintiff raises the following points for our consideration on appeal: POINT I UNDER AICRA, A CLAIM WILL MEET THE VERBAL THRESHOLD REQUIREMENTS UPON PRESENTATION OF PROOF OF A PERMANENT INJURY ONLY. POINT II THE VERBAL THRESHOLD MAY BE ASSERTED ONLY BY THE OWNERS AND OPERATORS OF "AUTOMOBILES" AND MAY NOT BE ASSERTED BY THE OWNERS AND OPERATORS OF COMMERCIAL VEHICLES. POINT III

file:///C|/Users/Peter/Desktop/Opinions/a1828-05.opn.html[4/20/2013 2:57:45 PM]

a1828-05.opn.html

SUMMARY JUDGMENT WAS NOT APPROPRIATE BECAUSE DEFENDANTS DID NOT MEET THEIR BURDEN OF PROVING THAT NO GENUINE ISSUES OF MATERIAL FACT EXISTED AS TO THE NATURE, USE, AND INSURANCE COVERAGE OF DEFENDANTS' VEHICLE. POINT IV POLK DOES NOT APPLY TO CLAIMS UNDER AICRA. POINT V EVEN IF POLK APPLIES TO CLAIMS UNDER AICRA, PLAINTIFF IS NOT REQUIRED TO SUBMIT A POLK ANALYSIS BECAUSE NO AGGRAVATION IS CLAIMED AND THE PREVIOUS INJURIES WERE QUIESCENT AND REMOTE. POINT VI A POLK ANALYSIS HAS BEEN PROVIDED. (i) The vehicle driven by Gagnon was a 2001 Dodge Caravan leased by Pearson, Inc., which Gagnon used full-time for both business and personal purposes. At the time of the motion, Gagnon no longer had possession of the vehicle but had a 2004 model which he said was the same, except that it had automatic doors. During his deposition, Gagnon offered to show his current minivan to opposing counsel, but apparently counsel did not view the vehicle. At the time of the accident, Gagnon was using the minivan for business purposes and recalls having a catalog case in the minivan. In addition, he testified that he used demonstration kits as part of his presentation to clients which, on occasion, he carried in the van. The declarations page for Pearson, Inc.'s business auto insurance coverage showed that automobiles in the fleet with the code "5" had PIP coverage, and Gagnon certified that his minivan was one of them. Gagnon lived in Maryland. He registered the Caravan in that state and did not register it as a commercial vehicle. Plaintiff argues that defendants were not entitled to raise the "verbal threshold" defense because they failed to establish that the minivan was an "automobile" rather than a commercial van and failed to establish that the vehicle was required to maintain, and actually maintained, PIP coverage. Under N.J.S.A. 39:6A-4, an automobile for which PIP coverage is required is defined as: [A] private passenger automobile of a private passenger or station wagon type that is owned or hired and is neither used as a public or livery conveyance for passengers nor rented to others with a driver; and a motor vehicle with a pickup body, a delivery sedan, a van, or a panel truck or a camper type vehicle used for recreational purposes owned by an individual or by husband and wife who are residents of the same household, not customarily used in the occupation, profession or business of the insured other than farming or ranching. An automobile owned by a farm family copartnership or corporation, which is principally garaged on a farm or ranch and otherwise meets the definitions contained in this section, shall be considered a private passenger

file:///C|/Users/Peter/Desktop/Opinions/a1828-05.opn.html[4/20/2013 2:57:45 PM]

a1828-05.opn.html

automobile owned by two or more relatives resident in the same household. [N.J.S.A. 39:6A-2(a).] PIP benefits are available even if a minivan is customarily used for business purposes, as long as it is characterized as a private passenger type automobile. Giordano, supra, 260 N.J. Super. at 331 (citing Wagner v. Transamerica Ins. Co., 167 N.J. Super. 25, 31 (App. Div.), certif. denied, 81 N.J. 60 (1979)). In Wagner, supra, we explained, "[W]e perceive no legislative design to exclude private passenger vehicles commercially owned and used in business pursuits [from no fault]." Wagner, supra, 167 N.J. Super. at 31. Plaintiff contends that a jury could reasonably find that the Caravan was not an automobile but a cargo transporting van customarily used in defendants' business. In our view, this contention is simply not supported by the record. During his deposition, Gagnon acknowledged that he used the minivan to carry supplies he needed for presentations, but there is no dispute that the van was also used to transport his family. Of greater significance is the design of the van. According to Gagnon, he selected the Dodge Caravan over the Dodge Intrepid because it had built-in passenger seats, a feature he apparently found particularly important as the father of five children. Moreover, even if we accept that the evidence defendants presented as proof that Gagnon's vehicle maintained PIP coverage was not definitive, it is undisputed that the vehicle was designed and equipped as a private passenger vehicle and it is this fact which triggers application of N.J.S.A. 39:6A-4, not whether defendants complied with the statutory requirements. N.J. Mfrs. Ins. Co. v. Hardy, 357 N.J. Super. 19 (App. Div. 2003); rev'd 178 N.J. 327, 334 (2004) (finding that a police cruiser was a private passenger automobile for purposes of PIP coverage); see also, Simon v. CNA Ins. Co., 225 N.J. Super. 606 (App. Div.), certif. denied, 113 N.J. 350 (1988) (finding that a government-owned vehicle can be a private passenger automobile). Likewise, the fact that Gagnon was using the vehicle for business purposes at the time of the accident is also not dispositive. CSC Ins. Servs. v. Graves, 293 N.J. Super. 244 (Law Div. 1996) (ruling that PIP coverage was applicable to a passenger van used for day care center transportation because it was not used as a public or livery conveyance or rented to others with a driver). In reviewing summary judgment orders, we must decide "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Under this standard, we are persuaded there were no genuinely disputed issues of fact as to whether the vehicle operated by Gagnon on the day of the accident was an automobile within the meaning of N.J.S.A. 39:6A-2.

file:///C|/Users/Peter/Desktop/Opinions/a1828-05.opn.html[4/20/2013 2:57:45 PM]

a1828-05.opn.html

R. 4:46-2(c). The proofs were so one-sided in support of this finding that the motion judge properly concluded, as a matter of law, that defendants were entitled to raise the verbal threshold defense to plaintiff's claims. Brill, supra, 142 N.J. at 540. (ii) We next consider plaintiff's claim that a Polk analysis does not apply to claims under AICRA. Subsequent to the Court's decisions in DiProspero and Serrano, we have had the occasion to address the impact of those two rulings on the continued viability of the Polk comparative analysis requirements in verbal threshold cases. Hardison v. King, 381 N.J. Super. 129 (App. Div. 2005); Davidson v. Slater, 381 N.J. Super. 22 (App. Div. 2005), certif. granted, 186 N.J. 243 (2006); Lucky v. Holland, 380 N.J. Super. 566 (App. Div. 2005). We join the reasoning set forth in Hardison, supra; namely, the question of whether or not a claimed injury is or is not an aggravation of a pre-existing injury, although possibly relevant on the issue of causation at the time of trial, is not an element of proof plaintiff must sustain at the summary judgment stage. Hardison, supra, 381 N.J. Super. at 136-37. Therefore, the motion judge's grant of summary judgment based solely upon plaintiff's failure to provide a Polk analysis is reversed. In light of our reversal, we find it unnecessary to decide the other points plaintiff has raised on appeal.

Reversed. A motion for leave to file an interlocutory appeal should have been filed because the economic claims are still pending. Since the matter has been fully briefed, we grant leave to appeal as if a motion had been filed. (continued) (continued) 11 A-1828-05T3 November 28, 2006 0x01 graphic

file:///C|/Users/Peter/Desktop/Opinions/a1828-05.opn.html[4/20/2013 2:57:45 PM]

a1828-05.opn.html

This archive is a service of Rutgers School of Law - Camden. This archive is a service of Rutgers School of Law - Camden.

file:///C|/Users/Peter/Desktop/Opinions/a1828-05.opn.html[4/20/2013 2:57:45 PM]



Download a1828-05.opn.pdf

New Jersey Law