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 Appellate Practice 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: