Pain from New Job Duties Insufficient to Warrant Extension for Doctor’s Report

The Appellate Division recently upheld a Law Division decision granting summary judgment for an auto insurance company in New Jersey in which plaintiff failed to submit her certification of permanency within the statutory sixty days as required by N.J.S.A. 39:6a-8(a) and a doctor’s report was not issued until after the discovery end date. In Llanes v. Allstate New Jersey Insurance Co. et al, plaintiff filed a personal injury lawsuit, as result of an October, 2011 auto accident in which her vehicle was rear-ended, against the uninsured driver, and Allstate based on her uninsured motorist coverage. After Allstate filed for summary judgment on July 17, 2014, alleging the limitation-on-lawsuit threshold was not satisfied, plaintiff alleged she was experiencing “further and greater pain.” Furthermore, plaintiff served a new doctor’s report dated July 11, 2014 in support of her argument, which for the first time gave the opinion plaintiff suffered a “permanent partial disability” that was causally related to the accident of October 10, 2011.
The issue on appeal was whether summary judgment was properly granted in favor of defendant, Allstate, after the trial court found defendant would be prejudiced in its defense of the case at such a late juncture if it permitted the late certification of permanency based on the July 11, 2014 doctor’s report. The trial court granted defendant’s motion for summary judgment because, without an expert opinion on permanency, plaintiff did not meet the limitation-on-lawsuit threshold.
In order to satisfy the limitation-on-lawsuit or “verbal threshold” of the Automobile Insurance Cost Reduction Act (AIRCA), plaintiff must submit a physician’s certified statement that “the automobile accident victim suffered from a statutorily enumerated injury.” Davidson v. Slater, 189 N.J. 166, 181 (2007). A doctor’s certification attesting to a permanent injury within a reasonable degree of medical probability satisfies the aforementioned “verbal threshold.” However, the doctor’s certification is to be served within sixty days from the defendant’s answer or, if an extension is granted for good cause, within sixty days thereafter. N.J.S.A. 39:6A-8. Late amendments to plaintiff’s interrogatories that are incomplete or inaccurate may be allowed no later than twenty days prior to the end of the discovery period. Rule 4:17-7. Amendments may be allowed thereafter “only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date.” Id.
In affirming the trial court’s decision granting summary judgment in favor defendant, the Appellate Court reasoned that the plaintiff’s complaints of pain arising from her job did not demonstrate due diligence in explaining why there was a three-year delay in obtaining the doctor’s report on permanency. In addition, the Appellate Court found that the court did not abuse its discretion in prohibiting an amendment of interrogatories pursuant to Rule 4:17-7 based on the facts as presented.