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Thompson v. Potenza12/5/2003
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 20, 2003
Sara and Warren Thompson (plaintiffs) appeal from the grant of summary judgment dismissing their complaint on the basis that they failed to overcome the verbal threshold of the No Fault Act. Plaintiffs sought damages against Joseph L. Potenza, Mary Ann R. Nicolini, Gerard Nicolini, and Central Jersey Courier (defendants) for personal injuries in connection with a motor vehicle accident. The Nicolinis owned the other vehicle, a van, which was driven at the time by Potenza in the course of his employment with Central Jersey Courier. In finding that plaintiffs did not surpass the verbal threshold, the judge concluded that Potenza was a permissive user of van, and that it was not customarily used for commercial purposes.
Plaintiffs argue that the defendants are not entitled to invoke the verbal threshold because the van does not meet the statutory definition of an automobile. In the alternative, they assert that based on Thompson's injuries she exceeded the verbal threshold. Additionally, plaintiffs believe that the motion judge erroneously granted summary judgment to defendant Central Jersey Courier because it was liable for Potenza's negligence under the doctrine of respondeat superior.
The record reveals the following facts. Thompson was involved in a motor vehicle accident in Edison Township on April 9, 1999, with a van operated by Potenza, and owned by the Nicolinis. Both vehicles had personal injury protection coverage (PIP), with the election of the verbal threshold.
Potenza was an employee of Central Jersey Courier, an entity owned by the Nicolinis' son. On the date of the accident the son borrowed the van with his parents' permission and in turn loaned it to Potenza to make a delivery for Central Jersey Courier. The accident occurred when Potenza was returning to the office after making the delivery. At a deposition, Potenza admitted that he had used the van"approximately once a week" to make deliveries. Defendant Mary Ann Nicolini certified that the van was a personal vehicle normally used for"going to the store, going to work and going on trips." Nothing was submitted to challenge that statement.
Mrs. Thompson did not seek medical treatment on the day of the accident. Instead, she first presented to the emergency room at Rahway Hospital the next day with complaints of headaches and pain on her lower back and neck. She indicated in her patient history that she had experienced pain in her neck and back in the past. X-rays taken at the hospital revealed only scoliosis and mild degenerative changes in her lower spine. She was discharged on the same day with ice packs and pain medications.
Still complaining of neck and back pains, Thompson had an MRI procedure on May 28, 1999, which revealed some abnormalities in her spine at C6-7 and a"mild broad-based disc bulge" in her lower back. The record indicates that she sought chiropractic treatment at least from April 14, 1999 to October 19, 2000, at Toto Chiropractic Center. Her chiropractor was of the opinion that she suffered from cervical sprain, lumbar sprain, cervical spondylosis without myelopathy, cervical radiculitis, degeneration of the cervical spine, and lumbar radiculitis due to disc displacement. A subsequent electrophysiological study performed on October 19, 2000 concluded"findings are consistent with right lower cervical radiculopathy and right lumbosacral radiculopathy."
Thompson was also examined by Dr. Steven Goldman on behalf of her PIP carrier on November 2, 1999.
Prior to her visits at Toto Chiropractic Center, Thompson had been seeing
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