KERPER et al v. CHILSON

Filing 37

MEMORANDUM OPINION & ORDER denying 27 Motion for Summary Judgment. Signed by Judge Joseph H. Rodriguez on 3/22/2016. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LINDA M. KERPER
and WAYNE KERPER (w/h),

:

Hon. Joseph H. Rodriguez

Plaintiffs,

:

Civil Action No. 13-3288

v.

:

MEMORANDUM OPINION
& ORDER

SARAH L. CHILSON,

:

Defendant.

:

This matter is before the Court on Defendant’s motion for summary
judgment pursuant to Federal Rule of Civil Procedure 56 [Doc. 27]. The
Court reviewed the submissions of the parties and has decided the motion
on the papers pursuant to Fed. R. Civ. P. 78(b). For the reasons set forth
below, Defendants’ motion will be denied.
Background
This matter arises out of a May 27, 2011 motor vehicle accident in
Wildwood, New Jersey. Plaintiff Linda M. Kerper filed a claim for
negligence by Defendant Sarah L. Chilson, invoking diversity of citizenship
as the basis for this Court’s jurisdiction. Plaintiff claims that as a result of
Defendant’s negligence,
Plaintiff, Linda M. Kerper, sustained serious and permanent
injuries to her right foot, right knee, back, right hip, right hand
and pelvis, including but not limited to lumbar strain and
sprain, thoracic sprain and strain, cervical strain and sprain,
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right ankle sprain and strain, right foot sprain and strain with
plantar fasciitis, right hand sprain and strain, right wrist sprain
and strain, right wrist nondisplaced hairline fracture of the
right navicular waist, lumbar radiculitis, cervicalgia, lumbalgia,
cervical herniated discs, thoracic herniated discs, aggravation of
disc degeneration of the lumbar spine and spinal stenosis,
aggravation of degenerative disc at L3-4 and stenosis at L4-5
and other injuries.
(Compl., ¶ 12.)
On the date of the accident, Plaintiff did not reside in New Jersey but
maintained an automobile insurance policy with Travelers Insurance
Company, an insurance company authorized to conduct business in the
State of New Jersey. Accordingly, Plaintiff is subject to New Jersey’s
“Deemer Statute”1 and the “limitation-on-lawsuit threshold” set forth in the
New Jersey Automobile Insurance Cost Reduction Act (“AICRA”). 2

The Deemer Statute, N.J. Stat. Ann. § 17:28–1.4, “requires insurers
authorized to transact automobile insurance business in New Jersey to
provide coverage to out-of-state residents consistent with New Jersey law
‘whenever the automobile or motor vehicle insured under the policy is used
or operated in this State.’” Zabilowicz v. Kelsey, 984 A.2d 872, 875–876
(N.J. 2009). The Deemer Statute also requires affected insurance
companies “to provide personal injury protection [(“PIP”)] benefits
pursuant to N.J. Stat. Ann. [§ ] 39:6A–4.” Id. at 876. “In short, the Deemer
Statute furnishes the covered out-of-state driver with New Jersey’s
statutory no-fault PIP and other benefits and, in exchange, deems that
driver to have selected the limitation-on-lawsuit option of [N.J. Stat. Ann.
§] 39:6A–8(a).” Id.
2
AICRA represents an effort by the New Jersey’s Legislature to curb rising
auto insurance costs by limiting the opportunities for accident victims to
sue for noneconomic damages. This effort began with New Jersey’s
implementation of a no-fault insurance scheme in 1972 when New Jersey
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Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) provides that summary
judgment should be granted if “pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” See also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding a motion for
summary judgment, the court must construe all facts and inferences in the
light most favorable to the nonmoving party. See Boyle v. Allegheny Pa., 139
F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden of
establishing that no genuine issue of material fact remains. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is material only if it will
affect the outcome of a lawsuit under the applicable law, and a dispute of a
material fact is genuine if the evidence is such that a reasonable fact finder
could return a verdict for the nonmoving party. See Anderson, 477 U.S. at
252.
passed the New Jersey Automobile Reparation Act and has since undergone
numerous revisions, in a process described as “tortured,” which need not be
recounted here. See, e.g., Branca v. Matthews, 317 F. Supp. 2d 533, 537-39
(D.N.J. 2004). The New Jersey Legislature passed AICRA in 1998 with
three distinct goals “containing [insurance premium] costs, rooting out
fraud within the system, and ensuring a fair rate of return for insurers.”
DiProspero v. Penn, 874 A.2d 1039, 1046 (N.J. 2005).
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The nonmoving party must present “more than a scintilla of evidence
showing that there is a genuine issue for trial.” Woloszyn v. County of
Lawrence, 396 F.3d 314, 319 (3d Cir. 2005). “If the evidence is merely
colorable . . . or is not significantly probative . . . summary judgment may be
granted.” Anderson, 477 U.S. at 249-50 (internal citations omitted). The
court’s role in deciding the merits of a summary judgment motion is to
determine whether there is a genuine issue for trial, not to determine the
credibility of the evidence or the truth of the matter. Id. at 249.
Analysis
To contain automobile insurance costs, AICRA established the
limitation-on-lawsuit threshold, which “bars recovery for pain and
suffering unless the plaintiff suffers an injury that results in (1) death; (2)
dismemberment; (3) significant disfigurement or significant scarring; (4)
displaced fractures; (5) loss of fetus; or (6) permanent injury within a
reasonable degree of medical probability . . . .” DiProspero v. Penn, 874
A.2d 1039, 1046 (N.J. 2005) (quoting N.J. Stat. Ann. § 39:6A–8(a))
(internal quotation marks omitted). An insured bound by the limitationon-lawsuit threshold is barred from suing for noneconomic damages unless
her injuries fall within AICRA’s six categories. Johnson v. Scaccetti, 927
A.2d 1269, 1273 (N.J. 2007). In the summary judgment context, a plaintiff

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can proceed to trial if she demonstrates that her alleged injuries, if proven,
fall into one of the six threshold categories. Davidson v. Slater, 914 A.2d
282, 295 (2007) (citing Oswin v. Shaw, 609 A.2d 415, 417 (N.J. 1992)).
If the alleged injury does not fit one of the obvious types of injury
specified in the statute (death, dismemberment, displaced fractures, or loss
of fetus), a plaintiff must also prove that the alleged statutory injury was
caused by the accident in question or “risk dismissal on summary judgment
if the defendant can show that no reasonable fact-finder could conclude
that the defendant’s negligence caused plaintiff’s alleged . . . injury.” Id.
However, where a plaintiff alleges she suffered more than one injury as a
result of the accident in question, the plaintiff need only establish one of
her injuries meets the limitation-on-lawsuit threshold for the jury to
consider all of the injuries when calculating noneconomic damages.
Johnson, 927 A.2d at 1282.
AICRA defines “permanent injury” as “[w]hen 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. Stat. Ann. § 39:6A–8(a).
Additionally, in adopting AICRA, the New Jersey Legislature explicitly
adopted a threshold requirement, the objective medical evidence standard,
established by the New Jersey Supreme Court in Oswin v. Shaw, 609 A.2d

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415 (N.J. 1992). DiProspero v. Penn, 874 A.2d 1039, 1050 (N.J. 2005). A
plaintiff’s alleged limitation-on-lawsuit injury “must be based on and refer
to objective medical evidence.” Id. (emphasis removed).
Finally,
When a plaintiff alleges aggravation of pre-existing injuries as
the animating theory for the claim, the plaintiff must produce
comparative evidence to move forward with the causation
element of that tort action. When a plaintiff does not plead
aggravation of preexisting injuries, a comparative analysis is not
required to make that demonstration. AICRA does not impose
on plaintiff any special requirement for a comparative-medical
analysis in respect of causation in order to vault the verbal
threshold.
Davidson v. Slater, 914 A.2d 282, 284 (N.J. 2007).
In moving for summary judgment, Defendant argues, first, that
Plaintiff has no credible, objective medical evidence of permanent injury
resulting from the May 27, 2011 accident to overcome the verbal threshold.
Defendant also argues that the Court should grant her summary judgment
because Plaintiff has not presented an adequate comparative analysis for
any aggravated permanent injuries to overcome the verbal threshold.
Plaintiff argues that in her Amended Complaint, she pled that she
suffered both aggravated and new permanent injuries that independently
meet the verbal threshold. Again, Plaintiff alleged that she:
sustained serious and permanent injuries to her right foot, right
knee, back, right hip, right hand and pelvis, including but not
limited to lumbar strain and sprain, thoracic sprain and strain,
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cervical strain and sprain, right ankle sprain and strain, right
foot sprain and strain with plantar fasciitis, right hand sprain
and strain, right wrist sprain and strain, right wrist
nondisplaced hairline fracture of the right navicular waist,
lumbar radiculitis, cervicalgia, lumbalgia, cervical herniated
discs, thoracic herniated discs, aggravation of disc degeneration
of the lumbar spine and spinal stenosis, aggravation of
degenerative disc at L3-4 and stenosis at L4-5 and other
injuries.
(Compl., ¶ 12.) She continues that “[f]or the first time in Plaintiff’s life on
June 14, 2011, after continuous complaints of lower back pain radiating into
her thighs since the accident in May 2011, an MRI ordered by Dr. Joseph
Kipp revealed a ‘broad-based disk bulge with severe bilateral facet
arthropathy at L5-S1.’” Pl. Br., p. 9, citing Tango Cert., Ex. Y.
Indeed, the Court finds that this disk bulge did not appear in the February
15, 2011 MRI of the lumbar spine. See Tango Cert., Ex. R. Rather, as to L5S1, the February 15, 2011 MRI indicates “there is no posterior disc contour
abnormality,” “[t]he central canal is patent,” “[t]he neutral foramina are
patent bilaterally,” and “[t]here is moderate facet hypertrophy.” Id.
Plaintiff’s March 11, 2011 MRI was only on the cervical and thoracic spine.
Tango Cert., Ex. T. The Court cannot find, as a matter of law, that the disk
bulge at L5-S1 on June 14, 2011 could not have reflected a new injury as the
result of the trauma of the May 27, 2011 accident.

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Additionally, in his July 21, 2014 Report, Dr. Joseph Kipp discusses
the permanency of this injury and details the various complaints and
instances in Plaintiff’s medical records where she was found to have
significant lower back pain radiating into her thighs and/or lower
extremities. See Tango Cert., Ex. V. 3 This is credible, objective evidence of
a new permanent injury sufficient to meet the verbal threshold and
overcome the instant motion for summary judgment.
Further, Dr. Kipp’s report provides sufficient analysis of Plaintiff’s
pre-existing injuries from prior motor vehicle accidents as compared to the
instant action. Kipp states that Plaintiff had sustained injuries in a prior
motor vehicle accident to her lower back, thoracic pain, and right carpal
tunnel syndrome. See Tango Cert., Ex. V. He points out that as of April 20,

Specifically, Dr. Kipp mentions and relies upon Plaintiff’s urgent visit to
Dr. Robert Simcsak, D.C., on August 1, 2011, approximately two months
after the accident. At that visit, Dr. Simcsak found that the “lumbosacral
spine revealed paravertebral tenderness” and there was “pain upon end
play at L5-S1 and the right S1 joint.” Sciolla Cert., Ex. E. Additionally, Dr.
Kipp relied upon Plaintiff’s visit to Dr. James Zaslavsky, D.O. on August 15,
2012. At that visit, Dr. Zaslavsky noted that “[Plaintiff’s] acute injury for
which she seeks treatment for today is a new radicular pain that she is
getting into her right lower extremity that emanates from her right PSIS
region.” Tango Cert., Ex BB. Dr. Kipp’s Report reflected that Plaintiff
sought treatment from Zaslavsky for right lower extremity radicular pain
that was “new since this accident.” Tango Cert., Ex. V. He concluded that
“within a reasonable degree of medical certainty,” “[a]s a result of her
motor vehicle accident of May, 2011,” Plaintiff would “require chronic
medical management” indefinitely. Tango Cert., Ex. V.
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2011, Plaintiff’s preexisting injuries were steadily improving with therapy
and goes on to explain that, as of June 9, 2011, Plaintiff was still
complaining of ongoing thoracic level pain from her thoracic disc
herniation that had been “exacerbated since this accident.” Id. 4
Therefore, Dr. Kipp has provided a sufficient comparative analysis of
Plaintiff’s aggravated injuries to meet the verbal threshold in this case. His
conclusions are to a reasonable degree of medical certainty and are based
on his first hand treatment and evaluation of Plaintiff from both before and
after the May 27, 2011 accident.
Conclusion
For these reasons,
IT IS ORDERED this 22nd day of March, 2016 that Defendant’s
motion for summary judgment [Doc. 27] is hereby DENIED.
/s/ Joseph H. Rodriguez
JOSEPH H. RODRIGUEZ
U.S.D.J.
Although Dr. Kipp admits that Plaintiff’s most recent MRI did not show
appreciable internal changes to her previous injuries to the C5-6, C6-7, T56, T6-7, L3-4, and L4-5 regions, documented in her February 2011 MRI, he
contends that the level of pain to the cervical, thoracic, and lumbar regions
where Plaintiff had previous injuries was beyond the pain she had
experienced prior to the May 27, 2011 accident. See Tango Cert., Ex. V.
Kipp found that her pain in these regions was not well controlled, only
temporarily relieved by epidural injections, and is evidence of chronic pain
syndrome, in contrast to the progress that Plaintiff was experiencing
related to pain in these regions prior to the May 27, 2011 accident. Id.
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