Weiss v. ThomasWeiss v. Thomas
Plаintiff Sheila Weiss, a North Carolina resident, alleges that she suffered personal injuries on February 25, 1989, when an automobile in which she was a passenger collided with another
The accident occurred in New York. The automobile in which plaintiff was riding was owned and was being operated by her daughter, who was a New Jersey resident. Both that automobile and the automobile with which it collided were registered in Nеw Jersey.
Ms. Weiss sued Ms. Thomas and Ms. Ewald to recover damages for her injuries. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff had not met the threshold requirements of N.J.S.A. 39:6A-8a. In opposing the motion, plaintiff argued that N.J.S.A. 39:6A-8a was inapplicable to this case because she was a Nоrth Carolina resident and the accident happened in New York. She also contended that she had met the statutory threshold requirements.
The Law Division held that plaintiff was subject to the verbal threshold requirements of N.J.S.A. 39:6A-8a and that she had not shown any facts which would allow a trier of fact to conclude that she had met the threshold. The court therefore granted summary judgment dismissing the complaint.
Plaintiff has appealed, arguing the same points before us that she did in the trial court.
To determine whether the plaintiff in the present case is subject to the verbal threshold requirement, we start with an analysis of the language of
Our analysis will be facilitated by viewing the corresponding provisions of subsections “a” and “b,” side by side. Each material provision of either of the two subsections which does not have a
Subsection a Subsection b
As an alternative to the basic
tort option specified in subsec-
tion a. of this section,
Every owner, registrant, operator every owner, registrant, operator,
or occupant of an automobile or occupant of an automobile
to which section 4 of to which section 4 of
P.L. 1972, c. 70 (C. 39:6A-4), P.L. 1972, c. 70 (C. 39:6A-4)
personal injury protection
coverage, regardless of fault,
applies, and every person or applies, and every person or
organization legally responsible organization legally responsible
for his acts or omissions, for his acts or omissions,
is hereby exempted from tort shall be liable for noneconomic
liability for noneconomic loss
loss to a person who is subject to to a person who is subject to
this subsection and who is either this subsection and who is either
a person who is required a person who is required
to maintain the coverage mandated to maintain the coverage mаndated
by this act, by P.L. 1972, c. 70 (C. 39:6A-1
et seq.)
or is a person who has a right or is a person who has a right
to receive benefits under section to receive benefits under section
4 of P.L. 1972, c. 70 (C. 4 of that act (C. 39:6A-4),
39:6A-4),
as a result of bodily injury, as a result of bodily injury,
arising out of the ownershiр, arising out of the ownership,
operation, maintenance or use operation, maintenance, or use
of such automobile in this of such automobile in this
State, unless that person has State.
sustained a personal injury which
results in death. ....
First of all, the only defendants subject to no-fault liability under either subsection “a” or “b” are an “owner, registrant, operator or occupant of an automobile to which” personal injury protection coverage applies, and “every person ... legally responsible
Secondly, whether such a defendant is liable only for noneconomic loss that meets the threshold requirements of subsection “a” or is liable for all noneconomic loss pursuant to subsection “b” depends on certain charaсteristics of the plaintiff. The first such determinative characteristic is whether the plaintiff “is subject to this subsection;” that is, to either subsection “a” or “b.” If a plaintiff is a named insured under a New Jersey automobile liability policy, he or she will have selected, or be deemed to have selected, either the verbal threshold or the full coverage tort option when purchasing the policy. The spouse, child, or spouse of a child living in the same household as the named insured and not named as an insured under another policy is bound by the named insured‘s selection of coverage.
However, subsection “a” and subsection “b” each provide that a defendant is liable pursuant to the provisions of that particular subsection only to a plaintiff who is “subject to” that subsectiоn and who, in addition, is either a person “required to maintain [personal injury protection] coverage mandated by” the New Jersey Automobile Reparation Act,
named insured [or] member[] of his family residing in his housеhold who sustained bodily injury as a result of an accident while occupying, entering into, alighting from or using an automobile, or as a pedestrian, caused by an automobile or by an object propelled by or from an automobile, to other persons sustaining bodily injury while occupying, entering into, alighting from or using the automobile of the named insured, with the permission of the named insured, [or a] pedestrian[], sustaining bodily injury caused by the named insured‘s automobile or struck by an object propelled by or from such automobile. [
N.J.S.A. 39:6A-4 .]
The plaintiff in the present case is not “subject to” either
The provision of
The tort option provisions of subsection a. of this section shall also apply to the right to recover for noneconomic loss of any person eligible for benefits pursuant to [
N.J.S.A. 39:6A-4 ] but who is not required to maintain personal injury protection coverage and is not an immediate family member, as defined in [N.J.S.A. 39:6A-8.1 ], under an automobile insurance policy.[Emphasis added.]
“Immediate family member” is defined in
There is another statutory section which we need to refer to,
Any insurer authorized to transact or transacting automobile or motor vehicle insurance business in this State, or controlling or controlled by, or under common control by, or with, an insurer authorized to transact or transacting insurance business in this State, which sells a policy providing automobile or motor vehicle liability insurance coverage ... shall include in each policy coverage to satisfy at least the liability insurance requirements of [
N.J.S.A. 39:6B-1 ] or [N.J.S.A. 39:6A-3 ] ... whenever the automobile or motor vehicle insured under the policy is used or operated in this State.Any liability insurance policy subject to this section shall bе construed as providing the coverage required herein, and any named insured, and any immediate family member as defined in [
N.J.S.A. 39:6A-8.1 ], under that policy, shall be subject to the tort option specified in subsection a of [N.J.S.A. 39:6A-8 ].[Emphasis added.]
Read literally, the second paragraph of
Since plaintiff is subject to the verbal threshold of
Plaintiff claims “permanent” injury to her back. Clearly, however, she has not lost the “use” of her back. She also claims “pеrmanent consequential limitation” of the use of her back. The medical testimony in support of that claim is a letter from her attorney which confirms an oral report made by a physician who examined plaintiff on April 8, 1993, presumably in order to prоvide information to rebut defendants’ motion. In terms paralleling the statute, the letter relates a physician‘s opinion that plaintiff has suffered injuries which pass the verbal threshold. This opinion is said to be based on “the objective findings of the Kin Com test which evaluates the entire back as well as your physical findings.” From material included in the appendix, we infer that the Kin
Plaintiff testified on depositions that she suffered from pain and discomfort in her upper back and shoulders and some stiffness in her neck. She said that during the 90 days following the accident, the pain was “tеrrible” and she implied that the pain and discomfort lessened thereafter. (We have not been told the date of the depositions.) She took prescription and nonprescription pain medicines for relief.
Plaintiff also testified that she lost partial days from work because she could not sit all day. However, she was not absent from work for any entire days. She also had to postpone for several months the overseas travel which her former job required. For reasons unrelated to hеr accident, plaintiff changed jobs. When her deposition was taken, she was working for herself as a consultant. That work required air travel in the United States. Air travel continued to cause plaintiff discomfort because it required her to sit for long periоds. For six months to a year, perhaps longer when she was traveling, plaintiff wore a hard collar to support her neck, but she no longer wore it at the time of the deposition.
On the basis of this record, plaintiff has failed to show by objective evidence that her injuries fell within one of the nine statutory categories enumerated in
The judgment appealed from is therefore affirmed.