SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-1449- 22 SOFIA PEREZ, Plaintiff-Appellant,

and CECILIA PEREZ, Plaintiff,

v. GABRIELA VILLASENOR, and ESTAFANIA VILLASENOR, Defendants-Respondents.

______ ________________________

Argued January 17, 2024

– Decided January 24, 2024 Before Judges Haas and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L

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- 19. David A. Gardner argued the cause for appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1449

- 22 Brian Michael B ar tlett argued the cause for respondents (Leyden, Capotorto, Ritacco, Corrigan & Sheehy, attorneys; Lauren Chaump , of counsel and on the brief).

PER CURIAM Plaintiff Sofia Perez appeals from the Law Division's November 18, 2022 order denying her motion for reconsideration of the trial court's October 3, 2022 order granting defendants' Gabriela Villasenor and Estefania Villasenor's motion for summary judgment and dismissing her comp laint with prejudice. 1 Because the trial court failed to adequately addres s the factual and legal issues raised by the parties, we reverse and remand for fu rther proceedings. On November 29, 2017, plaintiff was driving her ca r and was rear-ended by defendant Gabriela Villasenor. Plaintiff allege d she incurred injuries as a

result of the accident.

Plaintiff was insured and had elected the verbal th reshold limitation as permitted under the Automobile Insurance Cost Reduc tion Act (AICRA) , N.J.S.A. 39:6A-1.1 to -35. Pursuant to N.J.S.A. 39:6A-8(a), an insured who makes this selection may maintain an action for non economic losses only if she

1 Plaintiff did not file a timely notice of appeal fr om the trial court's order granting defendants' motion for summary judgment. Therefore, we previously issued an order limiting plaintiff's appeal to her challenge to the denial of her motion for reconsideration.3 A- 1449

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"has sustained a bodily injury which results in dea th; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medi cal probability , other than scarring or disfigurement." (emphasis a dded).

N.J.S.A. 39:6A -8(a) requires a plaintiff seeking to recover nonec onomic

losses to file "a certification from the licensed t reating physician or a boardcertified licensed physician to whom the plaintiff was referred by the treating physician." Under penalty of perjury, the certific ation must state that the plaintiff has sustained at least one of the injurie s described above. Ibid. The physician's certification must be based on objectiv e clinical evidence, which may include medical testing, but this testing canno t be "dependent entirely upon subjective patient response." Ibid. The physician must file the certification within sixty days following the date of the answer to any complaint filed by the plaintiff, although an extension of up to sixty day s may be granted by the trial court upon a finding of good cause. Ibid. Plaintiff filed her complaint against defendants 2 on November 29, 2019. Plaintiff alleged in count one that she sustained " serious and permanent personal

2 Plaintiff named the driver of the car that struck h er vehicle, Gabriela Villasenor, and Gabriela's parent, Estefania Villas enor, as defendants.4 A- 1449

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injuries requiring the care and treatment of physic ians, hospitalizations[,] and medication," and that she would continue to suffer "pain, suffering[,] and a loss of enjoyment of life as well as such further damage s proven at time of trial." 3 Because plaintiff was seeking noneconomic damages f or her injuries, AICRA required that she prove that her injuries fell with in one of the six categories set forth in N.J.S.A. 39:6A-8(a). Defendant filed an answer to the complaint on Janua ry 3, 2020. Plaintiff did not file the treating physician certification r equired by N.J.S.A. 39:6A-8(a). However, during the discovery period, plaintiff pr ovided answers to defendants' interrogatories. Asked to provide a "d etailed description of [the] nature, extent[,] and duration of any and all injur ies[,]" plaintiff replied that she suffered a "[c]losed displaced intraarticular fract ure of the head of the radius of the right elbow." She claimed this fracture was also permanent under the separate category for permanent injuries set forth in N.J.S.A. 39:6A-8(a). In addition, plaintiff asserted she had incurred a per manent "[a]ggravated/[e]xacerbated should er tear."

3 Plaintiff's complaint included a second count alleg ing that a passenger in her car, Cecilia Perez, also suffered injuries. The ou tcome of any proceedings involving this individual is not clear from the record and none of the parties' arguments on appeal concern this individual.5 A- 1449

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In her interrogatory answers, plaintiff described the diagnostic tests conducted of her elbow injur y. Plaintiff wrote that x-rays taken on December 12, 2017 "showed [a] displaced intraarticular fract ure of [her] right radial head."

A follow- up x-ray on January 8, 2018 "revealed [full] healing w ith no further displacement." Sometime during discovery, plaintiff either provid ed, or defendants obtained on their own, copies of two written reports prepared by Dr. Kevin C. McDaid, who was plain ti ff's treating physician. McDaid's December 19, 201 7 report stated that "[e]lbow x-rays . . . taken in t he Emergency Room" on that date "show[ed] a minimally displaced intraarticular radial head fracture." McDaid assessed the injury as a "[c]losed displaced fracture of head of right radius," and prescribed treatment appropriate for a "[c]losed displaced fracture of head of right radius ." In his February 23, 2018 report, McDaid's assessme nt of the injury

remained the same. He noted there had "been no fur ther displacement" and continued to provide treatment to plaintiff for a " [c]losed displaced fracture of head of right radius." Plaintiff did not list McDaid or any other physicia n as an expert in her interrogatory answers.6 A- 1449

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Defendants retained an expert, Dr. Joseph R. Zerbo , who conducted an examination of plaintiff on June 21, 2021. Zerbo also reviewed plaintiff's medical records, including the two McDaid reports. Zerbo prepared reports in which he stated that plaintiff suffered a "[n]on-di splaced healed fracture of the right radial head" in her elbow and that this fract ure was now fully healed and, therefore, not permanent. After the discovery period ended on April 30, 3022 , the parties went to

ar bitration on July 14, 2022. Arbitration was unsucc essful.

On August 2, 2022, defendants filed a motion for summa ry judgment. Citing Zerbo's opinion that plaintiff's elbow injury was not permanent, defendants argued that her complaint had to be dism issed under N.J.S.A. 39:6A8(a). In their brief, defendants relied upon Zerbo's expe rt opinion that plaintiff's elbow injury was not permanent and that plaintiff h ad failed to name an expert

who could contradict Zerbo's position on the issue of p ermanency. Defendants also pointed out that Zerbo had opined that plainti ff suffered a "non-displaced fracture of the radial head [that] had gone into co mplete radiographic and clinical healing."7 A- 1449

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Plaintiff filed opposition to the motion on August 30, 2022. Plaintiff's principal argument was that she had suffered a disp laced fracture in the accident and that a displaced fracture is one of the injurie s listed in N.J.S.A. 39:6A-8(a) that permits the insured to seek noneconomic damage s. A plaintiff who has

su ffered a displaced fracture does not have to also s how that the injury is permanent. Permanency is a separate category of in jury covered by N.J.S.A.

39:6A -8(a). Villanueva v. Lesack, 366 N.J. Super. 564, 565 (App. Div. 2004). Significantly, plaintiff no longer claimed that any of her injuries were permanent.. In addition, plaintiff submitted a late physician' s certification from McDaid. In this August 10, 2022 submission, McDaid certified "with in a reasonable degree of medical probability that [plai ntiff] has sustained the following injuries to body parts as a result of the [November 29, 2017] motor vehicle accident: minimally displaced intraarticul ar radial head fracture of the right elbow." McDaid further stated that the Decem ber 12, 2017 and February 22, 2018 right elbow x-rays cited in his reports su pported his diagnosis. On September 9, 2022, the trial court heard oral a rgument on defendants' motion. Plaintiff's attorney argued that plaintiff suff ered a displaced fracture of her elbow and that this injury enabled her to seek noneconomic damages under8 A- 1449

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N.J.S.A. 39:6A-8(a). Defendants' attorney responde d by asserting that plaintiff had failed to file a "certificate of permanency" or a ny "expert report speaking to permanency." The trial court reserved decision. On October 3, 3022, the court rendered a brief wri tten decision granting defendants' motion for summary judgment. The order mistakenly stated that defendants' motion was "unopposed." The court's de cision did not refer to plaintiff's argument that she suffered a displaced elbow fracture that enabled her to vault the verbal threshold requirement of N.J.S. A. 39:6A-8(a). The court did not attempt to resolve the factual dispute between the parties as to whether the plaintiff had a displaced or a non-displaced fractu re. Instead, the court relied upon a case setting forth the factors a plaintiff must prove to demonstrate she suffered a permanent injury , Jacques v. Kinsey , 347 N.J. Super. 112, 117 (Law Div. 2001), and concl ude d:

In the present case, plaintiff is subject to the li mitation on lawsuit threshold. Accordingly, plaintiff is req uired to prove a permanent injury through objective, credible medical evidence. Plaintiff has not provided any e xpert opinion that she sustaine d a permanent injury based on objective, credible medical evidence. Accordingly, [p]laintiff cannot sustain [her] burde n of proof and thus, [d]efendant's [m]otion for [s]ummar y [j]udgment is hereby GRANTED.9 A- 1449

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Plaintiff thereafter filed a motion for reconsider ation. Plaintiff argued that in opposition to the summary judgment motion, she submitted McDaid's reports stating that plaintiff had sustained a displaced elb ow fracture that enabled her to pass the verbal threshold without regard to whether the injury was permanent. Plaintiff also asserted that although it was late, the court should accept and consider McDaid's certification, which essentially repeated the information set forth in McDaid's reports and in her answers to int errogatories. Following oral argument, the trial court denied pl aintiff's motion on November 18, 2022. In a short written opinion, the court ignored plaintiff's answers to interrogatories, McDaid's reports, and d efendants' own expert' s reports that summarized McDaid's findings. Instead , the court incorrectly stated that plaintiff failed to present any evidence that she had a displaced fracture "before the end of the discovery period and arbitra tion." Finding that "[a]mendments to interrogatory answers are impermis sible" absent exceptional circumstances, the court declined to reconsider its prior dismissal of plaintiff's action. This appeal followed. On appeal, plaintiff argues that the trial court e rred by denying her motion for reconsideration. We agree.10 A- 1449

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We review the denial of a motion for reconsiderati on to determine whether

the trial court abused its discretion. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). Reconsideration should only be gr anted in :those cases which fall into that narrow corridor in which either 1) t he [c]ourt has expressed its decision upon a palpably incorrect or irrational ba sis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appre ciate the significance of probative, competent evidence[.]" Cummings v. Bahr , 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N .J. Super. 392, 401-02 (Ch. Div. 1990)). Therefore, we have held that "the magnitude of the error cited must be a game-changer for reconsideration to be appropr iate." Palombi v. Palombi , 414 N.J. Super. 274, 289 (App. Div. 2010). After reviewing the entire record in the light of this standard, we are convinced that the trial court mistakenly exercised its discretion when it refused to reconsider its decision granting summary judgmen t to defendants. The court's decision to grant summary judgment was "palpably incorr ect" because th e court found that plaintiff's complaint had to be dismisse d because she did not prove she sustained a permanent injury in the accident. Here, however, plaintiff was not alleging a permanent injury. Instead, she clai med to have suffered a displaced fracture of her elbow.11 A- 1449

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"To vault AICRA's verbal threshold, an accident vi ctim need only prove an injury as defined in the statute. Davidson v. S later, 189 N.J. 166, 181 (2007). A displaced fracture is specifically listed in N.J. S.A. 39:6A-8(a) as one of the six categories of injuries that enable a plaintiff to get over the verbal threshold. A permanent injury is an entirely separate category under the statute.

Indeed, the Legislature has categorized displaced fractures separate from other injuries that are req uired to be permanent to permit compensation for noneconomic loss; instead, displaced fractures are listed in the statute along with death, dismemberme nt, loss of a fetus, and significant disfigurement or scarring, forms of harm which, consistent with our jurisprudence, have allowed a plaintiff to sue for noneconomic damages without the need for a plaintif f to prove the injury has had a serious impact upon h er life. [Villanueva, 366 N.J. Super. at 569.] Therefore, the trial court clearly erred by holdin g that plaintiff was required to demonstrate that she had sustained a pe rmanent injury. All plaintiff had to show was that she had suffered a displaced f racture in the accident. The trial court did not address plaintiff's claim on this point. It failed to even mention the issue, even though both parties ha d raised it at oral argument. Like every other case that comes before our courts, the resolution of this matter "required a careful analysis and the requisite find ings to insure a just result."12 A- 1449

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Bailey v. Bd. of Rev., 339 N.J. Super. 29, 33 (App. Div. 2001). This case cried out for "a clear and concise determination that [pl aintiff] [had] been heard and [her] arguments considered." Ibid.

That did not occur here. Because the trial court granted summary judgment without considering or appreciating "the s ignificance of probative, competent evidence," the court should have reconsid ered its decision

. Cummings, 295 N.J. Super. at 384.

The trial court should also have revisited its sum mary judgment decision because there was clearly a dispute between the par ties as to whether plaintiff suffered a displaced fracture or a non-displaced fracture . While the court found that plaintiff needed to present an expert in order to prove a permanent injury,

it made no ruling concerning whether an expert was needed to p rove the status of plaintiff's fracture or whether McDaid, as the t reating physician, was competent to perform this analysis. Because there was a genuine issue as to these material facts, summary judgment was inapprop riate, absent a full airing and resolution of the matter by the court. R. 4:46 -2. Because of this, the trial court's denial of plain tiff's motion for

reconsideration cannot stand. The court's rational e for that decision lack ed a cogent basis in the record. The court found that p laintiff raised the issue of the13 A- 1449

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displaced fracture for the first time in its recons ideration motion. However, as set forth in detail above, plaintiff provided defen dants and the court with her answers to interrogatories and McDaid's reports dur ing the discovery period. Defendants' expert referred to this information in his reports. Thus, the court's finding that "[p]laintiff did not present that evid ence before the end of the discovery period and arbitration" is clearly incorr ect. To be sure, plaintiff's physician certification wa s woefully out of time. However, the trial court did not directly address t his issue in any of its decisions.

It is well established that a court should not auto matically dismiss a plaintiff's complaint when the certification required by N.J.S. A. 39:6A-8(a) is filed late. Casinelli v. Manglapus , 181 N.J. 354, 365 (2004). As the Supreme Court stated:

[W]e view the tardy presentation of a physician certification as falling under the broad umbrella o f failure to make discovery, thus subject to the arsenal of remedies provided in our rules for such procedural errors. Put another way, the [trial] court has ava ilable to it, along with dismissal, where warranted, disco verytype sanctions such as orders to compel, the award of reasonable expenses incurred in obtaining the certification, and counsel fees. See R. 4:23 -1 to -5. In each case, the court should assess the facts, inclu ding the willfulness of the violation, the ability of pl aintiff to produce the certification, the proximity of tria l, and prejudice to the adversary, and apply the appropria te remedy. That methodology provides judges with discretion to choose a response that is proportiona te to the procedural stimulus; saves for trial the merito rious14 A- 1449

- 22 claims of truly injured victims; and allows dismiss al of cases in which a plaintiff cannot or will not suppl y a certification or in which a plaintiff's conduct has irremediably prejudiced the defendant. [Casinelli , 181 N.J. at 365.] Because the trial court did not fully consider the issue of an appropriate remedy for plaintiff's late submission of the physician's certification, we must remand

this matter to enable that to occur. In sum, the trial court's decision on the summary judgment motion was based upon an incorrect legal premise , namely , that a plaintiff must demonstrate she has sustained a permanent injury to vault AICRA 's verbal threshold. When plaintiff brought this mistake to the court's atten tion and again pointed out the information on which her displaced fracture claim w as based, the court should have reconsidered its prior decision and rendered a new decision supported by detailed findings of fact and conclusions of law. We therefore reverse the trial court's denial of p laintiff's motion for

reconsideration and remand this matter for further proceedings. We suggest that the court, as an important first step, conduct a ca se management conference with the parties to discuss the issues that need to be r esolved, the manner in which this resolution should occur, and a time schedule f or the completion of these

tasks.15 A- 1449

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In remanding, we make no determination respecting t he sufficiency of plaintiff's injury or whether it in fact satisfied the verbal threshold. Nothing within this opinion forecasts any views on the meri ts of plaintiff's claims against defendants nor on the question of whether defendant s may be entitled to prevail on these issues once they are fully considered by t he court. Reversed and remanded. We do not retain jurisdicti on.