A Serious Rant About the Permanent Consequential and Significant Limitation "Serious Injury" Threshold Categories

AUTO – SERIOUS INJURY THRESHOLD – INSURANCE LAW § 5102
Vidal v. Maldonado
(Sup. Ct., Bronx Co., decided 12/8/2008)

Okay, maybe "rant" is too harsh a term for the court's critical exposition of the state of the common law on the "serious injury" threshold in New York State. But for those who deal with automobile personal injury claims, this decision is a must read. I first spotted this case over at Eric Turkewitz' New York Personal Injury Law Blog.

Bronx County Supreme Court Justice Paul Victor sets the stage for his discussion of seemingly conflicting New York "serious injury" case law with the following commentary:

The defendants' motions and plaintiffs' responses have become almost assembly line, "cookie cutter" prototypes; and attorneys for defendants (and most plaintiffs) have become expert on how to present or attack a serious injury claim.

Defendants are very adept at providing prima facie proof demonstrating that plaintiff has not suffered a serious injury; proof at the very least sufficient to meet their "initial burden" to present competent evidence that plaintiff has no cause of action. Plaintiffs, too, have become quite conversant with the requirements to defeat defendant's motion.

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The enabling legislation for the No-Fault Law itself provides little or no guidance to the bench and bar as to the scope of the terms used. For example, one should reasonably assume that the legislature sought to distinguish "significant limitations of a body function or system" from a "consequential limitation of a body organ or member". However, there appears to be no practical difference. Some courts have held that "consequential" means "significant" (See, e.g. Altman v. Gassman, 202 AD2d 265 [1st Dept. 1994]); and there are abundant cases in which all of the above terms (including body function, system, organ or member) are used interchangeably. The guidelines, conditions and examples provided by the Court of Appeals in a series of decisions, including Toure (cited and discussed, infra ) although very helpful, have not entirely unburdened the trial courts; and these serious injury claims continue to be the cause of incessant motion practice, and an abundant use of judicial resources at both the trial and appellate levels.

You can read the decision itself for Justice Victor's discussion and analysis of the Toure, Brown and Parreno decisions. After again noting that "[t]his legislatively imposed task has caused more than a season of judicial discontent and frustration, [and] has resulted in an extremely difficult and flawed process which results too often in an inconsistent and unfair application of the law", the court denied defendant's motion for summary judgment, even though plaintiff's treating internist had not set forth numeric percentages of any decreased range of motion in plaintiff's cervical and lumbar spine regions. The court found that a "less than normal" qualification of the ROM test findings was sufficient to create a question of fact when coupled with a positive MRI and the treating internist's finding of back spasms.

Presuming the defendant appeals this decision, we'll see what the First Department has to say. There are no bills currently pending in Albany that I found to amend the "serious injury" categories or proof requirements of Insurance Law § 5102(d).