HALINA JABLONOWSKA, INDIVIDUALLY AND AS ADMINISTRATRIX AD PROSEQUENDUM AND ADMINISTRATRIX OF THE ESTATE OF JADWIGA BACZEWSKA, DECEASED AND TADEUSZ JABLONOWSKA, PLAINTIFFS-APPELLANTS, v. DAVID P. SUTHER AND THERESA SUTHER, DEFENDANTS-RESPONDENTS, AND JOHN DOE, JANE ROE, ABC CORP. AND XYZ CO., SAID NAMES BEING FICTITIOUS, DEFENDANTS.
Supreme Court of New Jersey
Argued January 8, 2008-Decided June 10, 2008.
948 A.2d 610
Thomas W. Matthews argued the cause for respondents (Soriano, Henkel, Biehl & Matthews, attorneys).
Jeffrey M. Keiser argued the cause for amicus curiae Association of Trial Lawyers of America-New Jersey (Starr, Gern, Davison & Rubin and Jeffrey M. Keiser, attorneys; Mr. Keiser and Amos Gern, of counsel and on the brief).
Gerald H. Baker argued the cause for amicus curiae New Jersey State Bar Association (Lynn Fontaine Newsome, President, attorney; Mr. Baker and Amirali Y. Haidri, of counsel; Mr. Baker, Mr. Haidri and Eleanore M. Schenck, on the brief).
Justice LaVECCHIA delivered the opinion for the Court.
This appeal presents the question whether the verbal threshold provision in the Automobile Insurance Cost Reduction Act of 1998 (AICRA),
Plaintiff‘s complaint alleged a Portee-based negligent-infliction-of-emotional-distress claim arising from an automobile accident
Since its inception, the Portee claim always has transcended the need to prove permanent physical injury. Despite that background, the Legislature provided no indication through the verbal threshold‘s plain language or its legislative history demonstrating an intent suddenly to superimpose the threshold‘s permanent bodily injury requirement on Portee claims involving the happenstance use of a motor vehicle. Absent that clear expression, we hold that the unique, derivative Portee claim is independent of AICRA‘s verbal threshold. Therefore, plaintiff‘s Portee claim should not have been dismissed for non-compliance with AICRA‘s requirements for suit.
I.
On October 14, 2000, Halina Jablonowska was driving to Wallington to visit her children and her eleven-month-old granddaughter. Jablonowska‘s mother, Jadwiga Baczewska, was accompanying her. While proceeding northbound on a stretch of Route 21 in Newark, Jablonowska‘s Honda Civic was struck from the rear by a vehicle being driven by David Suther.1 The impact caused Jablonowska‘s Civic to crash into a concrete balustrade.
Jablonowska “was in shock,” and “trembling all over” as she answered questions about the accident posed by a responding officer. She and her mother were transported by ambulance to a nearby hospital. At the hospital, Jablonowska was treated and discharged. Baczewska, on the other hand, was not so fortunate. She had sustained fractures to her back, neck, and ribs. Worse, the force of the collision had partially severed her aorta, causing it to bleed directly into the thoracic cavity. She was pronounced dead on her arrival at the hospital, and a medical examination revealed that she had died within minutes of the accident from exsanguination caused by the transected thoracic aorta.
As a result of having witnessed her mother sustain severe personal injuries that resulted in death, Jablonowska instituted this action for emotional distress.2 The record that Jablonowska sought to present in support of her emotional distress claim demonstrated that, after her mother‘s death, Jablonowska experienced “frequent crying, headaches, palpitations, chest pain, shortness of breath, nausea with vomiting, dizziness, [and] tingling and numbness of her extremities.” She also suffered from nightmares and flashbacks of the accident. Her appetite decreased, and her memory and concentration became impaired. Three months after the accident, she began psychotherapy. From those treatments, the therapist identified Jablonowska‘s symptoms as including
[a] variety of phobias, including fear of driving, a fear of being a passenger in a car, a fear of being in a closed room, sleep disturbance, intensive recollections of the motor vehicle accident while awake, flashbacks of the motor vehicle accident and a variety of other symptoms relating to re-experiencing the traumatic event. [Jablonowska] was not able to see any pictures of her mother for one year after that car accident. [She] also painfully tried to avoid the accident site. She avoids thoughts and feelings concerning the accident, she can‘t participate in any family events like Christmas or Easter.... She also lost her interest in socializing. She felt detached from others and unable to have loving feelings. The accident has affected her sexual and personal life, giving [her] a sense of vulnerability and insecurity. During the treatment, [Jablonowska] was disciplined, cooperative, [and] highly motivated, but also depressed, felt isolated from others, and suicidal. She blamed herself for her mother‘s death and she felt guilty for being alive.
The psychotherapist diagnosed Jablonowska with chronic Post-Traumatic Stress Disorder (“PTSD“) and Major Depressive Disorder. She prescribed psychotropic medication, but opined that Jablonowska‘s prognosis was “unfavorable” and that “[t]he effect[s] of [the] psychological injuries on [Jablonowska‘s] life are self-evident and permanent.”
Jablonowska consulted a psychiatrist in the fall of 2003 when her symptoms persisted. Dr. David Brozyna also diagnosed Jablonowska with PTSD arising from “the accident of October 14, 2000 and witness[ing] her mother die in that accident.” He opined that Jablonowska‘s prognosis was “guarded at best,” and that she likely would require “a long course of medication and supportive psychotherapy.” Jablonowska continues treatment with Dr. Brozyna and takes daily doses of psychotropic medications to combat her maladies.
As noted, Jablonowska‘s negligent-infliction-of-emotional-distress claim was fashioned after the cause of action recognized in Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980). The Complaint alleged that Suther‘s negligent operation of his motor vehicle caused Jablonowska to experience the psychological trauma of witnessing her mother‘s injuries and subsequent death at the accident scene, which caused Jablonowska‘s severe mental impairment. Defendants moved for dismissal of the Portee claim when Jablonowska failed to produce a physician‘s certification within
The trial court found that the verbal threshold applied and dismissed the emotional-distress claim based on Jablonowska‘s failure to satisfy the physician-certification requirement and her failure to produce objective evidence of permanent bodily injury. See ibid. On April 2, 2004, the court entered an Order memorializing that decision. Thereafter, the court denied a motion for reconsideration and scheduled trial for March 7, 2005.
In January, 2005, Jablonowska moved a second time for reconsideration of the April 2, 2004, Order or, in the alternative, for adjournment of the trial date. In support, Jablonowska submitted
Because defendants conceded liability, the three-day trial conducted in this matter was limited to the issue of damages for the wrongful death and survivorship claims. The jury entered a verdict awarding $205,018 for the wrongful death claim and $350,000 for the survivorship claims. The court denied defendants’ motion for a new trial and entered judgment on the verdict.
Defendants appealed and Jablonowska cross-appealed. Defendants argued that Jablonowska failed to present sufficient evidence to support the wrongful death claim; that the trial court erred when charging the jury; that the damages award was excessive; and that plaintiff‘s counsel‘s misconduct warranted a new trial. Jablonowska, supra, 390 N.J.Super. at 402, 915 A.2d 617. Jablonowska‘s cross-appeal focused on the dismissal of her Portee claim. Id. at 404, 915 A.2d 617. The Appellate Division rejected all of defendants’ claims. Id. at 402-04, 915 A.2d 617. As for Jablonowska‘s cross-appeal, the panel concluded that the verbal threshold‘s requirements applied to her Portee claim. Id. at 404, 915 A.d 617. It “discern[ed] no valid distinction between a direct claim for emotional injury and a claim under Portee for
We granted Jablonowska‘s petition for certification seeking review of the Appellate Division judgment that held that her Portee claim was subject to AICRA‘s verbal threshold, and that dismissed her claim for failure to comply with the threshold‘s requirements.5 192 N.J. 69, 926 A.2d 854 (2007).
II.
The parties’ arguments on the fundamental issue in this matter stand in stark opposition to one another.
Jablonowska contends that a fair reading of the plain language of AICRA‘s verbal threshold provision does not encompass Portee claims in its sweep. She argues that because such claims existed prior to AICRA‘s reform of the verbal threshold and, therefore, were known to the Legislature at the time of that reform, the omission of any language that addresses Portee claims should render such derivative tort claims independent from the verbal threshold‘s application.
Defendants respond that the verbal threshold bars all psychological claims for emotional distress except those where the plaintiff can demonstrate some bodily injury, the nature and severity of which satisfies the threshold‘s requirements. According to defendants, AICRA must exempt expressly a Portee claim in order for such a claim to be advanced by someone who, like Jablonowska, selected the limitation-on-lawsuit option when insuring her own
In light of the parties’ arguments, we begin our analysis with an examination of the Portee-based cause of action for negligent infliction of emotional distress on which Jablonowska bases her claim for recovery.
III.
The tort of negligent infliction of emotional distress developed in this state in much the same manner as it developed elsewhere. See W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 54, at 361-62 (W. Page Keeton ed., 5th ed.1984) (discussing development of tort claim for mental injury absent physical impact in various states); David W. Robertson, et al., Cases and Materials on Torts 235 (3d ed.2004) (recognizing that development of tort liability for emotional injuries in most states follows “a typical pattern“). Foreseeability was initially, and has remained, the touchstone for liability for negligently causing emotional injury to another. As the common law in this state has widened the net of circumstances in which emotional injury is deemed a foreseeable consequence of negligent conduct, the breadth of that liability has evolved.
Although the physical-impact requirement remained part of this state‘s emotional distress common law well into the twentieth century, see, e.g., Greenberg v. Stanley, 51 N.J.Super. 90, 105, 143 A.2d 588 (App.Div.1958) (“New Jersey does not allow a cause of action for mental anguish where there has been no physical impact upon the plaintiff, even where his fear is for his own safety.“), aff‘d in part, rev‘d in part, 30 N.J. 485, 153 A.2d 833 (1959), the requirement proved to be more of an inconvenient formality than a significant threshold for recovery. See Portee, supra, 84 N.J. at 94 n. 4, 417 A.2d 521 (characterizing physical-impact requirement as “mere formality“). For example, in Porter v. Delaware, Lackawanna & Western Railroad Co., 73 N.J.L. 405, 63 A. 860 (Sup.Ct. 1906), the physical-impact requirement was deemed satisfied de-
In 1965, the physical-impact requirement was jettisoned explicitly. In Falzone v. Busch, 45 N.J. 559, 569, 214 A.2d 12 (1965), this Court held that a plaintiff could recover for emotional injury, even if unaccompanied by physical impact, provided that the defendant‘s negligent conduct placed the plaintiff in “a reasonable fear of immediate personal injury.” Ibid. The Court qualified the breadth of that extension of liability for emotional injury, however, by noting that “where fright does not cause substantial bodily injury or sickness, it is to be regarded as too lacking in seriousness and too speculative to warrant the imposition of liability.” Ibid. (emphasis omitted). Thus, after Falzone, courts considered emotional distress that accrued to any plaintiff who was within the “zone of risk” created by the negligent conduct to be a foreseeable damage arising from the negligent conduct, so long as substantial bodily injury or sickness also resulted from the fright. See, e.g., Caputzal v. Lindsay Co., 48 N.J. 69, 76, 222 A.2d 513 (1966).
The final evolution of the tort of negligent infliction of emotional distress in New Jersey occurred in Portee. In limited circumstances, a plaintiff‘s emotional injury is considered a foreseeable result of a defendant‘s negligent conduct even when that emotional injury does not arise necessarily from presence within the zone of physical danger created by the defendant‘s conduct. See Portee, supra, 84 N.J. at 97-98, 101, 417 A.2d 521. A plaintiff now can maintain an independent cause of action for negligent infliction of emotional distress where (1) the defendant‘s negligence caused the death of, or serious physical injury to, another; (2) the plaintiff shared a marital or intimate, familial relationship with the injured person; (3) the plaintiff had a sensory and contemporaneous observation of the death or injury at the scene of the accident; and (4) the plaintiff suffered severe emotional distress. Id. at 97, 101, 417 A.2d 521 (relying significantly on
Generally, then, an individual can maintain an independent tort action for negligent infliction of emotional distress in two instances. A plaintiff can demonstrate that the defendant‘s negligent conduct placed the plaintiff in reasonable fear of immediate personal injury, which gave rise to emotional distress that resulted in a substantial bodily injury or sickness. See Falzone, supra, 45 N.J. at 569, 214 A.2d 12. Alternatively, a plaintiff can state a prima facie claim for negligent infliction of emotional distress by satisfying the four elements set forth in Portee. We turn now to whether AICRA‘s verbal threshold applies to plaintiff‘s Portee claim when the factual underpinnings to that claim involve a motor vehicle accident.
IV.
A.
The limitation on lawsuit option in AICRA provides, in pertinent part,
Every owner, registrant, operator or occupant of an automobile to which [PIP coverage or medical expense coverage] regardless of fault, applies, is hereby
exempted from tort liability for noneconomic loss to a person who is subject to this subsection and who is either a person who is required to maintain [PIP] coverage ... medical expense benefits ... or is a person who has a right to receive benefits under [ N.J.S.A. 39:6A-4 or -3.1], as a result of bodily injury, arising out of the ownership, operation, maintenance or use of such automobile in this State unless that person has sustained a bodily injury which results 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.[
N.J.S.A. 39:6A-8(a) (1998) (amended 2003).]
In construing that language to answer the question before us, we are guided by well-established principles of interpretation. First, we look to the language employed by the Legislature to understand the intended effect of this provision, see State v. Crawley, 187 N.J. 440, 452, 901 A.2d 924, cert. denied, - U.S. -, 127 S.Ct. 740, 166 L.Ed. 2d 563 (2006), assuming that the Legislature meant to “ascribe to the statutory words their ordinary meaning and significance.” DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005). If the statute‘s ordinary language evidences the Legislature‘s clearly expressed intent, then our duty is to apply that plain meaning, for courts ought not “rewrite a plainly-written enactment of the Legislature[, or] presume that the Legislature intended something other than that expressed by way of the plain language.” Ibid. (internal quotation marks omitted). However, if the plain language of the statute is ambiguous in respect of how the Legislature intended the statute to apply in particular circumstances, then we look to the statute‘s legislative history for evidence of the Legislature‘s intended meaning. Id. at 492-93, 874 A.2d 1039; see also Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 171, 892 A.2d 1240 (2006) (“‘When a statute is silent or ambiguous ... the Court must interpret the statute in light of the Legislature‘s intent.‘” (quoting Burns v. Belafsky, 166 N.J. 466, 473, 766 A.2d 1095 (2001) (alteration in original))).
B.
Applying those basic principles of construction to AICRA‘S verbal threshold, we consider first the plain language. The provi-
The proscription against suit operates as a barrier to recovery that a threshold selector, who also happens to be “that person” who suffered a bodily injury from the use of an automobile, must overcome to maintain a cause of action. Ibid. In this case, the only person who suffered the type of direct, permanent bodily injury from the automobile accident sufficient to vault the threshold was Jablonowska‘s mother. See ibid. (stating that bodily injury that results in death satisfies threshold‘s permanent bodily injury requirement). However, no party in this action has suggested that Baczewska had to satisfy the verbal threshold. Nevertheless, the appellate panel below reasoned that because Jablonowska‘s mother suffered physical injuries leading to death as a result of the motor vehicle accident, Jablonowska‘s Portee claim must perforce also be subject to the threshold. Jablonowska, supra, 390 N.J.Super. at 404-05, 915 A.2d 617. According to that reasoning, because Jablonowska, as a motor vehicle operator, had chosen to subject herself to the verbal threshold, then any and every tort claim arising directly or derivatively from this motor vehicle accident must be subject to the threshold‘s requirements. See ibid. We find that reasoning overbroad and unpersuasive.
It is far from clear from the face of the verbal-threshold statute that the Legislature intended to subject Portee claims, as a class, to the threshold‘s bodily injury requirement. In analyzing the verbal threshold‘s intended applicability in these circumstances, it is compelling that the requirements for stating a prima facie Portee claim are specially tailored to address the particular form of emotional harm that it seeks to redress. Unlike emotional
As noted earlier, a plaintiff can maintain a negligent-infliction-of-emotional-distress cause of action where: (1) the plaintiff suffers “substantial bodily injury or sickness” arising from the plaintiff‘s location within the “zone of risk” created by the defendant‘s negligent conduct as recognized in Falzone; or (2) the plaintiff has a sensory, contemporaneous perception of a severe injury to a spouse or close family member caused by the defendant‘s negligent conduct that results in the plaintiff suffering severe emotional distress as recognized in Portee. Under certain factual circumstances, a plaintiff can seek in the alternative to recover for negligent infliction of emotional distress under both a Falzone-based liability theory and a Portee-based liability theory. See, e.g., Dunphy, supra, 136 N.J. at 102, 115, 642 A.2d 372 (recognizing viability of Portee claim where wife was only five feet from spouse when she witnessed vehicle strike spouse and cause fatal injuries even though wife also was in zone of danger created by defendant‘s negligent conduct). Nevertheless, the central distinction between the two liability theories is that the location of the plaintiff vis-à-vis the danger created by the defendant‘s negligent conduct does not impact the potential for recovery under Portee‘s liability theory. The viability of Portee claims depends only on whether the plaintiff has had a sensory, contemporaneous perception of an injury that was sustained by a spouse or close family member, irrespective of the distance from which that perception arises.
Despite having imputed knowledge of Portee for approximately eighteen years, the Legislature provided no indication that AICRA‘s verbal threshold was meant to superimpose the permanent bodily injury requirement on Portee claims that happen to involve the use of a motor vehicle. New Jersey statutes are replete with examples where the Legislature has signaled its intent to incorporate into a statute specific provisions for unique common law standards applicable to a recognized cause of action.8 In DiProspero, this Court noted that that very principle was followed in respect of the verbal threshold itself when the Legislature enacted AICRA, for the Legislature “adopted [the] interpretation of the 1988 threshold requiring a plaintiff to prove a verbal threshold injury by objective credible evidence [recognized in Oswin v. Shaw, 129 N.J. 290, 319, 609 A.2d 415 (1992)].” Id. at 495, 874 A.2d 1039. “The Legislature‘s explicit incorporation of one of Oswin‘s holdings ... into AICRA strongly implies that it consciously chose not to incorporate [all] of Oswin‘s holdings.” Ibid. (emphasis added).
As aptly noted by amicus New Jersey State Bar Association in this matter, if the Legislature intended to subject Portee claims to the verbal threshold, it could have included a relevant category of injuries for such claims among the types of injuries for which a
C.
A Portee claim under our common law has always transcended the need to prove permanent physical injury because it focuses on a unique type of heartsickness. It allows compensation for the severe emotional distress resulting from perceiving the death of, or severe injury to, a spouse or close familial relation. Absent some express legislative indication to the contrary, it is illogical to presume that the Legislature impliedly meant to subject Portee claims to the verbal threshold‘s permanent-injury requirement that the tort itself foregoes. Indeed, to accept the lower court‘s reasoning that the verbal threshold applies to Jablonowska‘s tort claim would result in the prohibition of any Portee claim arising out of the use of a motor vehicle, absent proof that the plaintiff sustained some permanent, physical bodily injury when such injury is not a necessary proof element at common law. We find no more than an arguable abstract ambiguity that the Legislature ever intended to make AICRA‘s revised verbal threshold applicable to Portee claims when such claims had not been subjected to the threshold before. Accordingly, we hold that Portee claims are independent of the verbal threshold‘s requirements.9
In sum, we hold that plaintiff‘s negligent-infliction-of-emotional-distress claim, fashioned on the liability theory set out in Portee, is independent of the requirements imposed by AICRA‘s verbal threshold and that the claim was improperly dismissed.
V.
For the reasons stated herein, the judgment of the Appellate Division is reversed. Plaintiff‘s negligent infliction of emotional distress claim is reinstated and this matter is remanded to the Law Division for further proceedings.
Justice ALBIN, dissenting.
When Halina Jablonowska purchased her automobile insurance policy, she opted for the limitation on lawsuit threshold under the Automobile Insurance Cost Reduction Act (AICRA),
Ms. Jablonowska claims that she suffered a permanent psychological injury-post-traumatic stress disorder-as a result of witnessing the death of her mother in a car crash, permitting her to vault the lawsuit threshold and recover for pain and suffering. I would hold that a permanent psychological injury, proven by objective credible evidence, is the equivalent of a permanent
On the other hand, I disagree with the majority that a common law claim for negligent infliction of emotional distress under Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980), arising from a motor vehicle accident and resulting in a nonpermanent psychological injury, is exempt from AICRA‘s lawsuit threshold. With regard to automobile accidents subject to AICRA, the majority gives a Portee claim an exalted status, distinguishing it from all other claims alleging physical and psychological injury. I see no difference under AICRA between a nonpermanent psychological injury alleged in a Portee claim and a nonpermanent physical and psychological injury alleged in any other common law claim. Like a nonpermanent physical injury (other than a displaced fracture), a nonpermanent psychological injury does not vault the threshold.3 Because I believe that the majority‘s resolution is inconsistent with the clear language of AICRA and will generate anomalous and even absurd distinctions that were never contemplated by the Legislature, I respectfully dissent.
I.
I disagree with the majority‘s assertion that a Portee, nonpermanent psychological injury arising from a motor vehicle accident falls outside of the lawsuit threshold. Ms. Jablonowska witnessed her mother die after their car was struck by another vehicle. Because her psychological injuries are directly related to that
The only threshold category that possibly applies in this case is the one that allows for a recovery for pain and suffering damages when a person injured in an automobile accident sustains “a bodily injury which results in ... a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.”
Moreover, AICRA‘s plain language makes clear that one cannot vault the verbal threshold on the basis of another person‘s injury.
In DiProspero v. Penn, 183 N.J. 477, 874 A.2d 1039 (2005), we held that “generally, the best indicator of [the Legislature‘s] intent is the statutory language,” and that it is not our role to “rewrite a plainly-written enactment of the Legislature []or presume that the Legislature intended something other than that expressed by way of the plain language.” Id. at 492, 874 A.2d 1039 (alteration in original) (quoting O‘Connell v. State, 171 N.J. 484, 488, 795 A.2d 857 (2002)). In short, we cannot add to or detract from the clear meaning of the statute. As part of AICRA‘s overall goal of containing the spiraling cost of automobile insurance, the Legisla-
Nothing in AICRA suggests that a driver bound by the lawsuit threshold, who is involved in an automobile accident and witnesses a close family member suffer death or serious bodily injury, can recover damages for pain and suffering resulting from a nonpermanent injury, whether physical or psychological. AICRA has no carve-out for nonpermanent Portee injuries. Under the majority‘s paradigm, a driver whose car is broadsided and who observes a close relative suffer serious bodily injury can recover for pain and suffering resulting from a nonpermanent post-traumatic stress disorder. However, if a sixteen wheeler crashes into a car, which explodes in flames, and the sole occupant suffers nonpermanent physical injuries and nonpermanent post-traumatic stress disorder, no recovery for pain and suffering is allowed. That absurd result does not follow from AICRA‘s plain language, and could not have been intended or envisioned by the drafters of that statute. The Legislature did not make a psychological injury asserted in a Portee claim superior to a psychological injury asserted in any other common law claim when the injury occurs in a motor vehicle accident.
Accordingly, no distinction should be made between psychological injuries suffered by the sole occupant of a car involved in a crash and by an occupant who witnesses a close relative injured in a crash. However, as indicated earlier, a permanent psychological injury sustained in an automobile accident as a result of another‘s negligence is a sufficient ground for vaulting the lawsuit threshold. On that point, plaintiff, defendant, and amicus Association of Trial Lawyers of America-New Jersey all agree.
II.
AICRA‘s lawsuit threshold,
In Collins v. Union County Jail, 150 N.J. 407, 696 A.2d 625 (1997), we held that the verbal threshold provision of the TCA,
The TCA threshold provides that in a suit against a public entity or public employee, a plaintiff shall not be awarded pain and suffering damages “resulting from any injury” except “in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00.”
Thus, at the time of AICRA‘s enactment in 1998, the Legislature knew that this Court in Collins had construed the term
Despite our pronouncements in those cases, the Legislature made no effort in enacting AICRA to define “bodily injury” or “permanent injury” as excluding permanent psychological injuries. Because “the Legislature is presumed to be aware of judicial construction of its enactments,” DiProspero, supra, 183 N.J. at 494, 874 A.2d 1039 (quotation omitted), we can conclude that the Legislature consciously omitted from AICRA‘s lawsuit threshold any language limiting “bodily injury” and “permanent injury” to a physical injury.
It also bears repeating that a permanent injury under AICRA‘s lawsuit threshold must be found by objective, credible evidence. Recently, in Patterson v. Board of Trustees, 194 N.J. 29, 942 A.2d 782 (2008), we found that within the medical profession, there are objective standards for determining both the existence and cause of a psychiatric illness, such as post-traumatic stress disorder. Id. at 49, 942 A.2d 782 (citing Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR), “a handbook published by the American Psychiatric Association, [which] categorizes known mental disorders for the purpose of diagnosis“); see also Saunderlin, supra, 102 N.J. at 413-416, 508 A.2d 1095 (finding that “‘diagnostic criteria‘” in DSM-III related to “manifestations of physical symptoms or descriptions of states of mind ... might constitute
Here, Ms. Jablonowska‘s treating psychiatrist submitted a certificate of merit in which he concluded that his patient suffered a “permanent injury“-“Severe Post Traumatic Stress Disorder“-as a result of witnessing the death of her mother in the car accident. In his certification, the psychiatrist stated that his opinion was based on “objective clinical evidence,” including “psychiatric evaluation and ongoing treatment.”
Based on that certification, I would remand to the trial court. That Ms. Jablonowska filed the physician‘s certification more than 60 days after defendant filed his answer is not necessarily fatal to her claim under AICRA. See Casinelli v. Manglapus, 181 N.J. 354, 355-56, 858 A.2d 1113 (2004) (holding that untimely filing of physician‘s certification does not mandate dismissal of action); see also
III.
I conclude that AICRA does not allow a recovery for pain and suffering for a nonpermanent Portee injury. I would remand for a new trial to allow Ms. Jablonowska the opportunity to prove that she suffered a permanent psychological injury compensable under AICRA.
Justices LONG and WALLACE join in this opinion.
For reversal/reinstatement/remandment-Chief Justice RABNER and Justices LaVECCHIA, RIVERA-SOTO and HOENS-4.
For dissension-Justices LONG, ALBIN and WALLACE-3.
Notes
bodily injury which result[ed] 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. [N.J.S.A. 39:6A-8(a) (1998) (amended 2003).]