Re: Casinelli v. Manglapus

To The Companies In Interest:

In Casinelli v. Manglapus, September Term 2002 (9/22/2004) the Supreme Court of New Jersey held that a physician certification is neither a fundamental element of the Automobile Insurance Cost Reduction Act (AICRA) nor analogous to a pleading. Therefore, the late filing of a certification is akin to a discovery violation and does not compel a dismissal with or without prejudice.

Casinelli's complaint was dismissed with prejudice by the trial court when she failed to produce a timely physician certification within 120 days of the defendant's answer establishing that she met the verbal threshold requirement contained in N.J.S.A. 39:6A-8(a). The Appellate Division held that a dismissal without prejudice was the proper remedy for late filing. However, recognizing the "harsh consequences" that would flow from a dismissal without prejudice where the statute of limitations had expired, the court held that the doctrines of substantial compliance and equitable estoppel could be evoked by Casinelli.

The Supreme Court, reversing in part and affirming in part, held that the failure to provide the certification did not warrant a dismissal with or without prejudice. The court held the tardy presentation of a physician certification falls under the broad umbrella of "failure to make discovery", and thus was subject to the arsenal of remedies provided in the rules for such procedural errors. "Put another way, the court has available to it, along with dismissal, where warranted, discovery type sanctions such as orders to compel, the award of reasonable expenses in obtaining the certification, and counsel fees. In each case, the court should assess the facts, including the willfulness of the violation, the ability of plaintiff to produce the certification, the proximity of trial, and prejudice to the adversary, and apply the appropriate remedy. That methodology provides judges with discretion to choose a response that is proportionate to the procedural stimulus; saves for trial the meritorious claims of truly injured victims; and allows dismissal of cases in which a plaintiff cannot or will not supply a certification or in which a plaintiff's conduct has irremediably prejudiced the defendant."

Judge LaVecchia dissented, noting that failure to comply with the strict requirements of AICRA's physician certification obligation should be treated as the failure to state a claim and that the presumptive disposition in such a case would be a dismissal without prejudice, barring any other "impediment" such as a statute of limitations.

Should you have any questions about the above, please do not hesitate to contact me.

Very truly yours,

Glendon E. Danks

For further information, please contact Glendon E. Danks, Esquire.
Telephone: 856-751-5285
E-mail: danks@bbs-law.com