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Konopka v. Foster10/31/2002
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2002
Plaintiff Teresa Konopka was allegedly injured in a motor vehicle accident that occurred on June 28, 1999 and thus after the effective date of the New Jersey Automobile Insurance Cost Reduction Act (AICRA), L. 1998, c. 21 and c. 22 (effective March 22, 1999). On December 9, 1999, she filed a complaint against the alleged tortfeasor, Freddie Foster, seeking damages for pain and suffering allegedly sustained in the accident. Foster's answer, which in relevant part merely asserted a blanket exemption from liability on the basis of the New Jersey Automobile Reparation Reform Act, was filed on March 8, 2000. Although plaintiff was subject to AICRA's limitation on lawsuit provisions (previously denominated the verbal threshold), she failed to comply with the physician certification requirements of N.J.S.A. 39:6A-8a, imposed on those subject to the statute's lawsuit limitations, until July 27, 2001, approximately sixteen months after defendant's answer was filed and more than two years after the motor vehicle accident had occurred.
AICRA requires, within sixty days of the filing of defendant's answer, that a plaintiff subject to its lawsuit limitation provisions provide the defendant with a physician's certification attesting to the fact that the plaintiff's injuries meet threshold statutory requirements. Only one sixty-day extension of the deadline is statutorily permitted, and then only for good cause. Therefore, at least by July 6, 2000, a date relatively early in the discovery period, defendant had legal and factual grounds to seek dismissal of plaintiff's suit. However, defendant did not move promptly. Rather, he deferred his motion for more than a year to August 14, 2001, after interrogatories had been answered, documents had been produced, plaintiff had given her deposition and submitted to an independent medical examination, an arbitration had occurred, and of even greater significance, the statute of limitations on plaintiff's claim had run. See N.J.S.A. 2A:14-2. The trial court granted defendant's motion, and, drawing upon precedent construing the affidavit of merit requirement applicable to professional negligence actions, she dismissed plaintiff's claim with prejudice. See N.J.S.A. 2A:53A-29.
On appeal, plaintiff argued in her initial brief that the court's determination should be reversed as the result of her substantial compliance with statutory directives, or that a dismissal without prejudice should have been entered with sanctions imposed upon restoration in a manner similar to the treatment of defaults in discovery under Rule 4:23-5.
N.J.S.A. 39:6A-8a, which replaced New Jersey's prior verbal threshold, now provides that a person subject to the statute's limitation on lawsuit provisions can recover non-economic damages only upon proof that the injuries sustained have resulted 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. An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment.
The statute also contains a physician certification requirement, which provides:
In order to satisfy the tort option provisions of this subsection, the plaintiff shall, within 60 days following the date of the answer to the complaint by the defendant, provide the defendant with a certification from the licensed treating physician or a board-certif
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