ISIDRO RODRIGUEZ et al. v. SHERI L. HOPEWELL

Annotate this Case

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1727-04T21727-04T2

ISIDRO RODRIGUEZ

and JESSENIA RODRIGUEZ,

Plaintiffs-Appellants,

v.

SHERI L. HOPEWELL,

Defendant-Respondent,

TOYOTA MOTOR CREDIT CORP.,

GIOVANNI'S and

STATE FARM INSURANCE COMPANY,

Defendants.

________________________________

 

Argued November 15, 2005 - Decided

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of

New Jersey, Law Division, Morris

County, L-3864-02.

Howard D. Popper argued the cause for appellants.

Brian R. O'Toole argued the cause for respondent (O'Toole & Couch, attorneys;

Mr. O'Toole, on the brief).

PER CURIAM

This is a verbal threshold case. Plaintiffs appeal from a trial court order granting summary judgment dismissing their complaint. We reverse and remand for trial.

The facts may be summarized as follows. On December 19, 2000, defendant's car ran a stop sign and hit plaintiffs' car. On March 22, 2001, an MRI of Mr. Rodriguez's spine revealed at least one herniated disc at L4-L5 and L5-S1 with nerve root compression, herniated discs at T1-T2 and T3-T4, and a herniated disc at C5-C7 with compression on the thecal sac. His treating chiropractor provided a certification that he suffered a permanent injury caused by the accident. Defendant also provided a report from a neurological surgeon opining that his symptoms were due to the accident. Mrs. Rodriguez also underwent an MRI which showed a herniated disc and she also filed a certificate of permanency.

The trial judge granted summary judgment on the grounds that plaintiffs "have not shown that level of objective, permanent injury sufficient to overcome the first prong of the Oswin theory. And even if they did, a serious impact on their lives simply is not there." See Oswin v. Shaw, 129 N.J. 290 (1992).

Having reviewed the record, we find that the evidence, viewed in the light most favorable to the plaintiffs, readily permits an inference that they each suffered a permanent injury caused by the accident. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). And, since the "serious impact" prong of the Oswin test is not applicable, following the Supreme Court's holding in DiProspero v. Penn, 183 N.J. 477 (2005), we must reverse and remand this matter for trial.

 
Reversed and remanded.

(continued)

(continued)

3

A-1727-04T2

November 23, 2005

 


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