SHARON L. BERRIOS v. DENISE M. STREMLO and STEVEN STREMLO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1548-04T21548-04T2

SHARON L. BERRIOS,

Plaintiff-Appellant,

v.

DENISE M. STREMLO and

STEVEN STREMLO,

Defendants-Respondents,

and

CHRYSLER FINANCIAL CORP.,

Defendant.

___________________________________________________

 

Submitted September 21, 2005 - Decided

Before Judges Stern and Levy.

On appeal from the Superior Court of New

Jersey, Law Division, Mercer County,

Docket No. L-1005-03.

R. David Blake argued the cause for appellant.

Michael E. Downey argued the cause for respondents

(McLauglin & Cooper, attorneys; Joseph E. Choquette,

of counsel; Mr. Downey, on the brief).

PER CURIAM

Plaintiff appeals from an order entered on September 10, 2004, granting partial summary judgment to defendants on all claims for non-economic damages. We are told that the claims for economic losses were subsequently settled, thereby rendering a final judgment. On this appeal, plaintiff argues that she has sustained a "permanent injury" for purposes of the Automobile Insurance Cost Reduction Act of 1998 (AICRA) "verbal" or "limitation on lawsuit" threshold. See N.J.S.A. 39:6A-8(a).

Plaintiff opposed defendants' motion with reference to a certification of permanency executed by Dr. Barry D. Fass. The certification read:

1. I am a licensed physician of the State

of New Jersey and was a treating physician for automobile injuries incurred by Sharon Berrios resulting from an accident on April 23, 2001.

2. Based upon the patient's reported history, my professional expertise and the findings in the attached report including reference to clinical findings and/or objective medical tests, it is my opinion that within a reasonable degree of medical probability my patient has sustained permanent injury that has not healed to function normally and will not heal to function normally with further medical treatment.

In their report of January 2, 2002, Dr. Fass and his associate wrote:

The patient's cervical spine was severely injured as a result of the motor vehicle accident. MRI findings indicated a disc bulge at the C5-6 level. Sprain and strain of the supportive musculature and ligamentous tissue along with disc bulging has permanently impaired this patient's cervical spinal region. This body part remains compromised with respect to her ability to perform physically exertive tasks or maintain prolonged postural positions. The patient's cervical spinal mobility remains compromised as well.

The patient's right upper extremity symptoms are explained by positive neurological electrodiagnostic findings consistent with right carpal tunnel syndrome and a right C6 radiculopathy. These neurological injuries will continue to cause residual symptoms of pain, numbness and weakness radiating down the patient's right arm and into her hand and wrist. She may ultimately require surgical intervention to correct the damage incurred in the carpal tunnel region. The use and function of this patient's right arm, wrist and hand remain compromised by these injuries. These are significant findings in a right hand dominant individual who is employed in a manually dependent occupation. These symptoms will continue to curtail her ability to perform her occupational tasks as well as routine daily tasks around the household.

Sharon Berrios will continue to experience physical limitations with respect to her cervical spine and right upper extremity. Her threshold for future injury has been lowered by the accident on 4/23/01. Progressive arthritic degeneration, muscular fibrosis and progressive disc disease are expected sequelae. She will never return to her premorbid state.

The mere filing of a certification is not by itself sufficient to satisfy the threshold when contested. Rios v. Szivos, 354 N.J. Super. 578, 583-85 (App. Div. 2002), overruled o.g., DiProspero v. Penn, 183 N.J. 477 (2005).

A "permanent injury" is one that did "not heal to function normally and will not with further medical treatment," N.J.S.A. 39:6A-8(a), and for purposes of summary judgment, the motion judge must evaluate the evidence in the light most favorable to the plaintiff. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 523 (1995).

In dismissing the case, the motion judge relied on our opinion in Serrano v. Serrano, 367 N.J. Super. 450 (App. Div. 2004), which was subsequently reversed, 183 N.J. 508 (2005). The judge referred to the requirement that "the injuries meet a particular threshold of seriousness and permanency," and held that the injuries in this case "are simply not sufficient to meet the permanent injuries, serious nature that are required under the statute." That statement is contrary to the Supreme Court's holding in Serrano "that in order to recover non-economic damages, an accident victim has to prove only an injury defined in N.J.S.A. 39:6A-8(a), and does not have to clear the additional hurdle of proving a 'serious injury.'" Serrano v. Serrano, supra, 183 N.J. at 510.

We conclude that the matter must be reconsidered in light of the Supreme Court opinions in Serrano and DiProspero v. Penn, 183 N.J. 477 (2005), after the parties have the opportunity to develop the record and make further arguments in light of those decisions. This is particularly necessary because the motion judge appears to have blended what were at the time perceived as the two distinct "prongs" of the threshold, including the outdated "substantial impact" prong, in reaching her conclusion about "seriousness."

 
We remand for reconsideration of the motion for summary judgment and for further proceedings consistent with this opinion.

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A-1548-04T2

September 28, 2005