HLD, v. 32, n. 11 (November 2004)
New Jersey High Court Says Physician Certification Was Not Necessary
Part Of Automobile Injury Claim
In December 1999, Jenevieve Casinelli (plaintiff) was in an automobile
accident caused by Wilfredo S. Manglapus (defendant). As a result of her injuries
plaintiff was treated by a neurologist and a neurosurgeon for back pain and
had to undergo physical therapy. In July 2001, plaintiff sued defendant for
negligence in causing her injuries. Defendant moved for summary judgment of
dismissal of plaintiff's complaint with prejudice on the ground she did not
meet the requirements of the state Automobile Insurance Cost Reduction Act (AICRA)
because she failed to file a physician certification.
Under N.J. Stat. Ann.
� 39:6A-8(a) a claim under the AICRA must include a physician certification
that the plaintiff has met the verbal threshold requirement. Plaintiff filed
reports by two of her physicians that her injuries were related the accident,
but she did not submit the reports in certification form within 120 days of
defendant's answer as required by the AICRA. Plaintiff later filed the physician
certification in opposition to the summary judgment motion. The trial court
determined there was good cause to extend the time for filing the certification
and declined to dismiss the complaint.
Defendant appealed and argued the complaint should have been dismissed
with prejudice for failing to meet the requirement of � 39:6A-8(a), and even
if the complaint were dismissed without prejudice plaintiff would be barred
from refiling because the statute of limitations had run. Plaintiff argued there
was nothing in � 39:6A-8(a) that indicated the Legislature intended to have
suits dismissed because the deadline for the physician certification had been
missed. The Appellate Division held that dismissal without prejudice was a proper
sanction for missing the filing deadline. Defendant appealed.
The Supreme Court of New Jersey affirmed the judgment in part and
reversed in part on the grounds the physician certification is not a fundamental
element of the AICRA and is not analogous to a pleading, and thus dismissal
was not appropriate. The AICRA provides to purchasers of automobile insurance
a choice between a policy providing for unrestricted recovery of non-economic
damages and a policy with a "verbal threshold" limiting non-economic damages
for certain categories of injuries. The verbal threshold was intended to eliminate
suits for minor injuries, and the physician certification is necessary to verify
that a plaintiff has a compensable injury.
Disagreeing with the Appellate Division that the proper sanction
for the late filing of the physician certification was dismissal the high court
concluded the requirement was not a fundamental element of the AICRA. The untimely
filing of a physician certification is similar to a failure to provide discovery
and the appropriate sanction depends on the willfulness of the violation. In
this case, plaintiff's failure to timely file the physician certification did
not prejudice defendant, and plaintiff had timely filed medical opinions of
her physicians but in the incorrect form. The dismissal of the case would eliminate
a meritorious case because the statute of limitations would bar refiling. Therefore,
the high court affirmed the denial of the motion to dismiss with prejudice,
and reversed the dismissal without prejudice. A dissent disagreed with the majority's
characterization of the physician certification requirement as not being a fundamental
part of the AICRA and stated the failure to file should be treated as equivalent
to a failure to state a claim.
Casinelli v. Magnaplus, No. A-105-02 (N.J. Sept. 22, 2004).
To read the case, go to http://lawlibrary.rutgers.edu/courts/supreme/a-105-02.opn.html
Health Lawyers thanks Lisa D. Taylor, of St. John & Wayne,
L.L.C., in Newark, New Jersey, for sending us a copy of this opinion.