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Puso v. Kenyon3/10/1994
erouin, 487 N.Y.S.2d (App. Div. 4 Dept. 1985), to the effect that once a prima facie case of serious injury has been established, plaintiff is entitled to present its claim as to all injuries sustained in an automobile accident to the trier of fact, including those injuries which alone would not have satisfied the tort threshold requirement.
In Katzman v. Derouin, id., the defendant argued that partial summary judgment should have been granted limiting the plaintiff's proofs as to injuries to the left thumb, hand, and wrist which met the tort threshold but excluding all proof as to injuries to plaintiff's neck, back and urinary tract which did not meet the threshold. The New York court concluded:
There is nothing in the statute, in the policies underlying its enactment, or in the case law giving support to the defendant's position.
[Id. at 157.]
Noting that the New York statute was in derogation of the right to sue for injuries at common law, the court declared that the statute must be strictly construed:
Had the Legislature intended to permit trial of only those injuries which standing alone can meet the threshold, it would have included language to that effect in the statute.
[Id. at 157-58.]
We agree with the Conclusion reached by the New York courts and find that this Conclusion is consistent with N.J.S.A. 39:6A-8a. Our statute exempts tortfeasors from suit for noneconomic loss unless a tort claimant has sustained "a " personal injury which falls within the nine enumerated types of injury delineated in the statute. The use of the word "a " clearly reflects a legislative intent that a singular injury meeting the tort threshold will permit a claimant to sue for noneconomic loss causally related to all injuries sustained in an automobile accident.
On remand, if the motion Judge determines that plaintiff's scar does not meet the tort threshold, summary judgment shall be entered for defendant. If the court determines that plaintiff's scar does in fact meet the tort threshold, then plaintiff may present proof as to all of her injuries to the trier of fact. This Conclusion is consistent with Oswin v. Shaw, supra, 129 N.J. at 313-14:
We hold that once a court determines that evidence bearing on a plaintiff's injuries could, if believed by the factfinder, satisfy the statutory verbal-threshold requirement, any disputed issues regarding the nature and extent of those injuries must be decided by the jury. Of course, in the absence of any factual dispute the court shall resolve the question of whether plaintiff's injuries meet the verbal threshold. Therefore, if the plaintiff moves for a partial summary judgment on the verbal-threshold issue and the court resolves that question in the plaintiff's favor -- that is, the trial court determines as a matter of law that under no view of the medical evidence could a factfinder conclude that the plaintiff had failed to meet the requirements of at least one of the verbal-threshold categories -- then the jury's task (assuming it finds liability in the plaintiff's favor) is limited to a determination of the noneconomic losses.
The order for summary judgment is reversed and the matter is remanded to the trial court for appropriate proceedings in accordance with this opinion.
Disposition
The order for summary judgment is reversed and the matter is remanded to the trial court for appropriate proceedings in accordance with this opinion.
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