ANGEL BERDUGO v. TERESA M. MODRZYNSKI

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1345-03T1

ANGEL BERDUGO,

Plaintiff-Appellant/
Cross-Respondent,

v.

TERESA M. MODRZYNSKI,

Defendant-Respondent/
Cross-Appellant.
_________________________________________

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September 27, 2005

Argued September 14, 2005 - Decided

Before Judges Weissbard and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3025-02.

Sherri L. Warfel argued the cause for appellant/cross-respondent (Pellettieri, Rabstein and Altman, attorneys; Ms. Warfel, of counsel and on the brief).

Bertrand C. Harry argued the cause for respondent/cross-appellant (Styliades, Jackson & DiMeo, attorneys; Teresa Gerlock Hanni, on the brief).

 
PER CURIAM
This is an appeal and cross-appeal of the entry of summary judgment dismissing plaintiff's complaint for failure to meet the requirements for recovery of non-economic damages under the verbal threshold. N.J.S.A. 39:6A-8a. The motion judge found plaintiff failed to raise a genuinely disputed issue of fact as to whether the injury had a serious impact upon his life.
The accident occurred on September 28, 2000, when plaintiff, Angel Berdugo, was struck from behind by a vehicle operated by defendant, Teresa Modrzynski. He filed a complaint for personal injuries on September 4, 2002.
Defendant moved for summary judgment, contending plaintiff failed to meet the requirements of the verbal threshold as set forth under the Automobile Insurance Cost Reduction Act (AICRA). N.J.S.A. 39:6A-8a. In opposing the motion, plaintiff alleged there was objective clinical evidence of a lumbosacral disc bulge and muscle spasm, and these injuries had a serious impact upon his life. Oswin v. Shaw, 129 N.J. 290, 318-19 (1992).
The judge issued a tentative written decision in which she found plaintiff's muscle spasm was intermittent and thus insufficient to meet the permanency requirements under the statute See footnote 1 . Owens v. Kessler, 272 N.J. Super. 225, 231-32 (App. Div. 1994). She did not, however, address plaintiff's additional claim that the MRI testing, which confirmed a lumbosacral disc bulge, was further evidence of a permanent injury because she had tentatively determined plaintiff failed to meet the subjective component(s) for recovery. Following oral argument, the motion judge found the totality of the circumstances did not demonstrate that plaintiff's injuries had a "serious impact to a significant and important component of his life." The judge granted the motion without specifically addressing whether plaintiff had sustained a permanent injury.
While this appeal was pending, the Court decided DiProspero v. Penn, 183 N.J. 477 (2005), holding a plaintiff need not show a serious life impact under AICRA. Accordingly, we summarily reverse in accordance with DiProspero.
In the cross-appeal, defendant argues that the trial court decision should be upheld because plaintiff failed to present objective clinical evidence of a permanent injury. Oswin, supra, 129 N.J. at 319. In light of this remand, the trial court should conduct further proceedings to address whether plaintiff has presented objective clinical evidence of a permanent injury.
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Reversed and remanded.
 
 
 
 
Footnote: 1 The tentative decision was not part of the record submitted on appeal. At argument, counsel jointly agreed to submit a copy of the decision to supplement the record. R. 2:5-5.

A-1345-03T1