LOTHARIO SMITH v. GEORGE R. DAVIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6485-03T26485-03T2

LOTHARIO SMITH,

Plaintiff-Appellant,

v.

KEITH A. MARNELL,

Defendant-Respondent.

____________________________________________________

Submitted August 9, 2005 - Decided August 16, 2005

Before Judges C.S. Fisher and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3334-02.

The Stuart Law Office, attorneys for appellant (Ian Stuart, on the brief).

Green, Lundgren & Ryan, attorneys for respondent (Keith A. Marnell, on the brief).

PER CURIAM

Plaintiff's complaint sets forth his claim that he suffered personal injuries as the result of an automobile accident on May 18, 2000 allegedly brought about by defendant's negligence. His claim was governed by the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-8b, the Legislature's most recent attempt to eliminate "suits for injuries which are not serious or permanent, including those for soft tissue injuries." N.J.S.A. 39:6A-1.1. The trial judge followed our prior determination rulings, see, e.g., James v. Torres, 354 N.J. Super. 586, 595-596 (App. Div.), certif. denied, 175 N.J. 547 (2002), that AICRA precludes actions for certain types of injuries formerly sufficient to pass through the verbal threshold while retaining the two-prong approach established by our Supreme Court in Oswin v. Shaw, 129 N.J. 290, 318-19 (1992).

On June 14, 2005, while this matter was on appeal, our Supreme Court decided DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005). In those decisions, the Court determined that AICRA did not subsume the "serious impact" Oswin v. Shaw prong, as we held in James v. Torres, supra, and other cases, and that a plaintiff, whose claim is subject to AICRA, is required only to submit objective evidence of a permanent injury to have a claim for personal injuries pass through the verbal threshold.

In granting summary judgment, the trial judge assumed that plaintiff provided sufficient objective evidence of a permanent injury. He also assumed that plaintiff provided an adequate comparison of the injuries allegedly caused by this accident and those that resulted from an earlier accident, as required by Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993). The judge, however, granted summary judgment because he concluded that plaintiff failed to demonstrate that the alleged injury had a serious impact upon his life. We agree that plaintiff's proofs did not adequately demonstrate a serious impact on his life, but we acknowledge that, since the trial judge's ruling, this factor has been found by the Supreme Court to be irrelevant in determining whether a claim may pass through the verbal threshold.

 
Reversed.

Plaintiff has not argued, and the Supreme Court's recent decisions do not remotely suggest, that we wrongly decided Ostasz v. Howard, 357 N.J. Super. 65, 67 (App. Div. 2003) in holding that the comparative analysis required by Polk applies to cases governed by AICRA. We observe also that defendant did not file a cross-appeal seeking review of the trial judge's Polk ruling.

Plaintiff also relies upon an unpublished trial court decision, Relli v. Liberty Mut. Fire Ins. Co., Docket No. MON-C-235-03 (Ch. Div. 2004), in arguing that he did not receive adequate notice about the verbal threshold option at the inception of his insurance policy. This argument was not raised below and the record on appeal contains inadequate information from which we could render a decision on the merits of this claim. While we could reject this argument for both those reasons, we hold that there is no merit in the theory espoused in the trial court decision relied upon by plaintiff. See Phillips v. MetLife Auto & Home, 378 N.J. Super. 101 (App. Div. 2005).

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A-6485-03T2