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SAMPLE BRIEF TO THE SUPERIOR
COURT OF NEW JERSEY, APPELLATE DIVISION
The following appellate brief
directed to the Superior Court of New Jersey, Appellate Division,
was prepared by On-Point Paralegal Services, LLC, and is provided
as a writing sample. This is not intended nor should it be construed
or relied upon as being legal advice. We have made every attempt
to maintain proper format while converting this brief to .html
format for display on the Internet.
PROCEDURAL HISTORY
On August 7, 2002, plaintiff
filed her complaint. [Pa1]
On February 11, 2003, defendants filed an Answer. [Pa5]
On August 4, 2004, defendants
filed a motion for summary Judgment. [Pa10]
On September 28, 2004, the trial
court granted defendants' motion for summary judgment. [Pa57]
On October 27, 2004, plaintiff
filed a motion for reconsideration. [Pa50]
On November 19, 2004, the trial
court denied plaintiff's motion for reconsideration. [Pa59]
On November 24, 2004, plaintiff
filed a timely Notice of Appeal. [Pa52]
STATEMENT OF FACTS
This action concerns a motor
vehicle accident that transpired on or around August 29, 2000.
[Pa1 at Para. 1; Pa12 at Pa13, Para. 1; Pa18 at Para. 2] On that
date, Defendant Melissa A. XXXXX who was driving a vehicle owned
by Defendant XXXXX, hit plaintiff's vehicle in the rear. Plaintiff
alleges that the accident was due solely to Defendant XXXXX's
negligence and carelessness. [Pa1 at Para. 2; Pa17; Pa18 at Para.
2]
Defendants moved for summary judgment on August 4, 2004 alleging
that plaintiff did not sustain injuries sufficient to breach the
limitation on lawsuit option contained in her auto policy. [Pa10]
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To simplify this issue for appeal,
especially since the papers provided to the trial court are so
concise and directly to the point, this court is respectfully
referred to defendants' Statement of Facts at Pa13-Pa15 for a
recitation of their position. The defendants only submitted a
brief in support of their motion for summary judgment. The statement
of facts with Exhibits from that brief has been reproduced in
the appendix, but the legal argument has been omitted. In the
same vein, the court is also referred to plaintiffs' response
papers. Her Counterstatement of Material Facts is contained at
Pa43-Pa45 and her Certification is reproduced at Pa46-49.
STANDARD OF REVIEW
This is an appeal of an Order
of summary judgment. In such appeals, "This court's standard
of review mirrors that of the trial court: whether there is a
genuine issue of material fact and, if not, whether the moving
party is entitled to summary judgment as a matter of law."
Mango v. Pierce-Coombs, 370 N.J. Super. 239, 249 (App. Div. 2004),
citing Kopin vs. Orange Prods., Inc., 297 N.J. Super. 353, 366
(App. Div.), certif. denied, 149 N.J. 409 (1997), and McClelland
vs. Tucker, 273 N.J. Super. 410, 415 (App. Div. 1994).
Thus, the standard of review of summary judgment
motions is de novo. "Upon appellate review of summary judgment,
we apply the same standard as the trial court, and, in effect,
exercise de novo review." Bennett v. Lugo, 368 N.J. Super.
466, 479 (App. Div. 2004), quoting Prudential Property Ins. vs.
Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998).
LEGAL ARGUMENT
POINT I
PLAINTIFF IS ENTITLED TO SURVIVE
SUMMARY JUDGMENT SO LONG AS SHE CAN PROVE THAT SHE SUSTAINED A
PERMANENT INJURY
Construing the 1998 Automobile Insurance Cost
Reduction Act (AICRA), N.J.S.A. 39:6A-8(a), the Appellate Division
in two recent decisions held that it does not endorse what it
called an "extreme position" of requiring a plaintiff
to prove a "significant impact" in order to recover
from an auto insurance policy having the limitation on lawsuit
option. Those two cases are Serrano vs. Serrano, 367 N.J. Super.
450 (App. Div.), certif. granted, 180 N.J. 357 (2004), and Bennett
vs. Lugo, 368 N.J. Super. 466 (App. Div. 2004). In Serrano, the
court said in detail that,
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Plaintiff and ATLA NJ argue that any permanent
soft tissue injury, no matter how insignificant, satisfies the
verbal threshold so long as there is medical proof to a reasonable
medical certainty that "the body part or organ or both
have not healed to function normally and will not heal to function
normally with further medical treatment." Defendants, on
the other hand, assert that even though a plaintiff suffers
serious and permanent soft tissue injury, the AICRA threshold
is not penetrated unless there is proof that the injury has
a serious impact on lifestyle.
Although we do not endorse either of these
extreme positions, they are nevertheless indicative of the issue
presently before the Supreme Court. We can clearly perceive
circumstances where a person sustains a soft tissue injury,
which, though permanent, is not at all serious. For example,
a soft tissue injury to the neck or back can result in morning
stiffness, which then dissipates upon movement. Likewise, we
can envision serious soft tissue injuries such as herniated
discs or a tear of a medial meniscus, which result in pain but
do not seriously impact life because the affected person has
a sedentary lifestyle and endures pain better than the average
person.
Serrano, supra, at 459 (Emp.
Supp.).
While the Serrano Court did not hold that any and all soft tissue
injuries are sufficient to overcome the limitation on lawsuit
option, it recognized that there are injuries that may permanently
cause the injured party a great deal of pain and discomfort even
if a "significant impact" cannot be proven that meets
the strict requirements of Oswin vs. Shaw, 129 N.J. 290 (1992).
The Appellate Division reaffirmed that holding
in Bennett, supra, where the court clarified that the new criteria
for overcoming the limitation on lawsuit option was whether there
is a serious soft tissue injury that is permanent in nature. The
Court also held that, although not mandatory, proof of a significant
impact will "bolster" the position that the limitation
has been overcome.
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This panel has recently adopted a formulation
requiring proof of a soft tissue injury that is both permanent
and serious. Serrano v. Serrano, 367 N.J.Super. 450, 460-61,
843 A.2d 358 (App.Div.2004) … We observed that proof of
serious life impact could be used to prove that a soft tissue
injury is serious. Id. at 461, 843 A.2d 358 …
We rest our decision on the approach we set
forth in Serrano. As we have stated, applying the Brill standard,
if a jury finds that plaintiff's disc herniation has been caused
by the current accident, the jury can likewise reasonably find
that the injury is serious and permanent. See id. at 459, 843
A.2d 358 (mentioning a herniated disc as an example of a serious
and permanent injury). Such a conclusion is bolstered by plaintiff's
serious life impact evidence, if believed by the jury, that
he is unable to engage in his usual form of employment because
of his injury. Id. at 461, 843 A.2d 358.
Although not critical to our decision, we note
in passing that plaintiff's life impact evidence (alleged inability
to engage in his usual form of employment) is sufficient to
survive summary judgment with respect to serious life impact
as a separate prong under the James and Rios approach.
Id. at 477 (Emp. Supp.).
Accordingly, under the new standard for overcoming the limitation
on lawsuit option set forth in Serrano and Bennett, supra, there
is no need for the instant plaintiff, who is suffering from very
painful and permanent soft tissue injuries, to prove a significant
impact upon her life. All she has to prove is a permanent injury.
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A. Plaintiff Has Satisfied Serrano &
Bennett.
The medical report prepared by Bruce R. XXXXX,
M.D., F.A.C.S., dated June 28, 2003, submitted during the summary
judgment proceedings below provides,
I can state the following with a reasonable
degree of medical certainty. Denise XXXXX's 08/29/00 motor vehicle
accident cause the recalcitrant cervical radiculopathy which
she has continued to suffer with as outlined within this report.
Although she had in the remote past undergone cervical disc
surgery on two occasions, she had made a good recovery from
that disorder and was well with reference to the cervical spine
at the time of the 08/29/00 motor vehicle accident. Unfortunately
her history of prior cervical spine disorders and two cervical
spine surgeries made her prone to a cervical spine injury, which
she did sustain in the 08-29-00 motor vehicle accident. Therefore
I believe that the above testing and treatment with reference
to the cervical spine is casually related to her motor vehicle
accident. I believe, unfortunately, in light of the long duration
of her symptoms that this is a chronic condition and in all
likelihood is of a permanent nature.
[Pa32 at Pa33, Last Paragraph,
Emp. Supp.]
Thus, plaintiff's medical condition was certified to a reasonable
degree of medical certainty by a licensed medical professional
as being permanent in nature. This met the standards set forth
in Serrano and Bennett, supra.
POINT II
PLAINTIFF'S INJURIES WILL HAVE A PERMANANT
SIGNIFICANT IMPACT UPON HER LIFE
Besides the fact that plaintiff contends that
Oswin is no longer good law, plaintiff's can prove that her injuries
are having a "significant impact" upon her life.
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As a result of the accident, plaintiff could
no longer do household chores or her homework without suffering
from significant pain. [Pa46] She explains in detail in her Certification
how her injuries are significantly affecting her life, including
the significant impact upon her work performance. [Pa46] All of
this meets Oswin's subjective impact requirement.
It is well-established that an example "of
serious impact on a lifestyle could be the inability to do household
chores." Shorter v. Leach, 277 N.J. Super. 617, 622 (Law
Div. 1994). Shorter for that quote has been cited by the Appellate
Division on multiple occasions with approval. See, e.g., Natale
v. Kisling, 336 N.J. Super. 198, 203 (App. Div. 2001), and Cineas
vs. Mammone, 270 N.J. Super. 200 (App. Div. 1994).
Inability to do household chores is not per se
sufficient to breach the verbal threshold, but the Natale Court
held that it will be sufficient if it is coupled with other limiting
facts on the victim's lifestyle. Natale, surpa, at 203.
Thus, the Natale court found that the verbal
threshold was breached in that the victim also alleged to have
a diminished sex life. Id. Here, the plaintiff cannot even hold
her head down while studying because it causes her excruciating
headaches to increase. (See plaintiff's deposition transcript,
Pa20 at 65:10-20)
Likewise, in Cineas, supra, the victim alleged
as a result of the accident to have a diminished sex life along
with a diminished ability to do household chores and to assist
his wife with same. Cineas, supra, at 211. Based upon those facts,
the Appellate Division held that, "[I]t appears that the
accident has made a significant impact on plaintiff's life and,
as we documented earlier, plaintiff has satisfied the requirements
of the verbal threshold statute under Oswin as it pertains to
objective evidence of limitation of motion." Id. at 212.
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Plaintiff's employment and household obligations
are both being affected by her injuries. It is respectfully submitted
that this meets the Oswin standard for a significant impact.
POINT III
THIS CASE DOES NOT NEED TO
BE ANALYZED UNDER POLK VS. DACONCEICAO
The trial court erred as a matter of law by applying
an analysis under Polk v. Daconceicao, 268 N.J. Super. 568 (App.
Div. 1993). This court should not apply a similar analysis in
reviewing this summary judgment appeal de novo.
Polk is inapplicable to this case because it
is distinguished on the facts. Polk concerned a claim by a woman
who had a pre-existing injury and who was not able to prove that
she had recovered from the initial injury before the alleged new
aggravating injury was allegedly sustained.
By contrast, in the case at bar, the plaintiff
has no problem proving that she had fully recovered from the previous
injury. The June 28, 2003 medical report provides,
In conclusion, I can state the following with
a reasonable degree of medical certainty. Denise XXXXX's 08/29/00
motor vehicle accident caused the recalcitrant cervical radiculopathy
which she has continued to suffer with as outlined within this
report. Although she had in the remote past undergone cervical
disc surgery on two occasions, she made a good recovery from
that disorder and was well with reference to the cervical spine
at the time of the 08/29/00 motor vehicle accident.
[Pa32 at Pa33]
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A. Making Findings Outside of the Record.
The trial court ruled against plaintiff by making
findings of fact on medical issues that were outside of the record
and that the court was not qualified to make. During a November
19, 2004 hearing pertaining to plaintiff's motion for reconsideration,
the court reasoned on the record as follows.
Now, the case that I relied upon the last hearing
I still rely upon and that is Bennett vs. Lugo and I know you
say, Mr. XXXXX, that Dr. XXXXX indicates by virtue of his just
saying, well, she had pain in the lower back and this is a neck
problem and therefore there is no correlation between the lower
back problem or accident of the low back problem and the accident
of the neck. But because of the nature of the area of the body
involved, the cervical versus a lumbar, there's just that --
not that much difference between the two areas. It's not that
much -- if you understand what I'm saying, space. It's not as
if something -- someone was hit in the head and then you have
an accident that is resulting to the foot. There's just a distinction
between the two areas.
In this particular instance there's no that
great deal of an -- that -- that great amount of a distinction
in the area so that I would expect to have something that would
show that -- from the doctor that where does the pain stop in
the lower back, how far up does it go? Are you telling me that
the pain in the lower back cannot go up to the neck? That the
pain that she's been suffering does not affect the neck in any
way?
That's not what I have here and I think that's
what the Polk analysis is required or why the Polk analysis
is required to make that distinction, to say that the pain does
not go any further than the L1. There's no way in the world
that the pain in the lower back could be influenced or …
travel up to the neck in any way, shape or form [or] that the
accident that … we are addressing … is the only reason
… [for] the pain … in the plaintiff's neck. That I
believe is why or what the Polk analysis is for, to make a distinction,
to -- to definitively state that again as -- as I've already
indicated the pain that this -- this woman is alleging is --
is -- she's suffering in her neck is definitively the result
of the accident she was involved in and if we don't have that
then we can't make that distinction and there is a failure of
the part of the plaintiff to meet a prong of or requirement,
not a prong, a requirement of the verbal threshold situation.
[2T-16:11 to 18:11]
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In this regard, the trial court was drawing medical conclusions
and making impermissible findings of fact without having any foundation
or qualifications for doing so. There is nothing in the record
to support those findings.
The trial court drew conclusions that the lumbar
area of the back is anatomically close to the neck. The trial
court then concluded that the pain could radiate from the lumbar
area to the neck and Dr. XXXXX should have given his opinion.
[Pa32 at Pa33]
The court's conclusion is seriously flawed. There
is nothing in the record to even infer, let along conclude, that
there was commonality of pain between the lumbar and cervical
areas of the plaintiff's back. Moreover, Dr. XXXXX's report succinctly
concludes that the plaintiff had no complaints concerning her
neck for a long time before this accident.
The only medical reports submitted provide that
plaintiff had fully recovered from the prior accident [Pa32 at
Pa33], whereas the trial court held that plaintiff had not. The
issue should have been submitted to a jury. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)("Credibility determinations,
the weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge, whether
he is ruling on a motion for summary judgment or for a directed
verdict"); McDermott v. Botwick, 38 N.J. Super. 528, 532-33
(App. Div. 1956) ("Skepticism of the trial court as to the
veracity of statements appearing in affidavits opposing the application
does not alter the rule; the issue of credability must be held
for jury determination").
In sum, a Polk analysis in this case is clearly
inapplicable, but if the court finds that it is appropriate, plaintiff
avers that she has overcome it with the medical reports that she
had no symptoms at the time of the accident and that the accident
was the cause of her injury.
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CONCLUSION
Plaintiff has proven both a permanent injury,
a significant impact upon her life and that her injuries were
caused or otherwise significantly aggravated by the accident in
question. The trial court erred by dismissing the case on summary
judgment and the Order should be reversed and this matter remanded
for trial.
LAW OFFICE OF XXXXXXXX &
XXXXX, P.C.
__________________________________
Christopher XXXXX, Esq.
Attorneys for Plaintiff
Dated:
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