Personal Injury Cases: Verbal, Casinelli v. Manglapus, 357 NJ Super. 398 (App. Div. 2003)

In a verbal-threshold case governed by the Automobile Insurance Cost Reduction Act, where a plaintiff fails to file the required physician certification within the time prescribed by N.J.S.A. 39:6A-89a) and the two-year statute-of-limitations period set forth in N.J.S.A. 2A:14-2 has run at the time defendant files a motion to dismiss, if the plaintiff is able to establish the requisite elements to demonstrate ?substantial compliance? with the procedural requirement that a physician certification be timely filed, then the harsh consequences of a dismissal with prejudice can be equitably avoided. We reach this conclusion because the failure to strictly comply with the time requirements for filing a physician certification does not go to the heart of the cause of action as defined by the Legislature. See Watts v. Camaligan, 344 N.J. Super. 453, 462-68 (App. Div. 2000). Although the fact that the applicable statute of limitations may have expired at the time defendant moved for dismissal does not preclude a substantial-compliance analysis, as a prerequisite for consideration of application of the doctrine of substantial compliance, the plaintiff must have filed a physician certification that, except for being untimely, otherwise meets the requirement contained in N.J.S.A. 39:6A-8(a).