BARBARA TIMKO et al. v. ALBA F. DIFALCO et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6775-03T56775-03T5

BARBARA TIMKO and GEORGE

TIMKO, her husband,

Plaintiffs-Appellants,

v.

ALBA F. DIFALCO and ANGELO P.

DIFALCO,

Defendants-Respondents.

 

Argued September 27, 2005 - Decided

Before Judges Lefelt and Hoens.

On appeal from the Superior Court of New Jersey, Monmouth County, Docket No. L-5816-02.

David P. Corrigan argued the cause for appellants (Hobbie, Corrigan, Bertucio & Tashjy, attorneys; Mr. Corrigan, of counsel; Danielle R. Vaz, on the brief).

Dennis R. O'Brien argued the cause for respondents (Campbell, Foley, Lee, Murphy & Cernigliaro, attorneys; Mr. O'Brien, on the brief).

PER CURIAM

Plaintiffs George Timko and Barbara Timko appeal from the July 23, 2004 order of the Law Division granting summary judgment in favor of defendants Alba F. DiFalco and Angelo P. DiFalco. We reverse and remand.

The only facts that are relevant to our analysis are the following. On December 12, 2000, plaintiff George Timko was driving a vehicle in which plaintiff Barbara Timko was a passenger when it was struck in the rear by a vehicle operated by defendant Alba F. DiFalco and owned by defendant Angelo P. DiFalco. Plaintiff Barbara Timko asserts that she was injured in the accident, suffering "multiple herniated discs/disc bulges . . . relentless pain . . . restricted range of motion of the head and cervical spine, pain across the back and radiating into the left arm, numbness in the fingers, weakness and fatigue in the left arm, frequent headaches and easy general fatigability." During discovery, she provided defendants with a February 28, 2001 MRI report that revealed multiple cervical disc herniations and a "reversal of the normal cervical lordosis." In addition, she produced reports from an orthopedist and an osteopathic physician describing her injuries and her course of treatment.

Following the completion of discovery, defendants moved for summary judgment. Defendants argued that Barbara Timko's injuries were not sufficient to be compensable in accordance with the applicable provisions of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. In particular, defendants asserted that Barbara Timko could not demonstrate that her injuries had a serious impact on her life and thus could not meet the second part of the traditional two-part Oswin analysis. See Oswin v. Shaw, 129 N.J. 290, 318-19 (1992); James v. Torres, 354 N.J. Super. 586, 596 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003).

In addressing these arguments, the motion judge first concluded that the evidence concerning plaintiff Barbara Timko's injuries was sufficient to demonstrate by objective, credible, medical evidence that she had sustained a permanent injury as that term is defined in the statute. The judge therefore concluded that plaintiff Barbara Timko had satisfied the first part of the Oswin analysis. The judge then recognized that there was a divergence of relevant appellate court opinions, but concluded that the two-part Oswin formulation had survived the amendments to AICRA and was therefore still binding. As a result, the judge considered the second prong of the Oswin test. That aspect of the test required the judge to analyze whether the injuries, although objectively demonstrated, were also sufficiently serious, when viewed in terms of their subjective impact on the plaintiff's daily life, to support relief within the meaning of the statute. After reviewing plaintiffs' subjective evidence, the judge concluded that plaintiff Barbara Timko's injuries were not sufficiently serious to meet the test imposed under Oswin's second analytical prong.

On appeal, the parties do not challenge the judge's findings and conclusions respecting the first part of the Oswin test, namely, that plaintiff Barbara Timko has demonstrated by objective, credible, medical evidence that she sustained injuries that fall within the statutory definition of permanent or significant injuries. Indeed, based on our review, there is sufficient support in the record to sustain that finding of fact and that conclusion of law. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)(quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). Rather, the only issue before us on appeal is the judge's decision that the evidence of the subjective impact of the injuries on plaintiff's life was insufficient to meet the serious impact prong of the Oswin test.

We need not detail the evidence and testimony presented to the motion judge in support of plaintiff Barbara Timko's assertion that the injuries she suffered had a serious impact on her life. Rather, in light of the recent decisions by our Supreme Court holding that AICRA does not include a serious impact requirement, see DiProspero v. Penn, 183 N.J. 477, 481 (2005); Serrano v. Serrano, 183 N.J. 508, 509-10 (2005), we are constrained to reverse the order granting summary judgment and to remand this matter to the Law Division for further proceedings consistent with this most recent Supreme Court guidance.

Reversed and remanded. We do not retain jurisdiction.

 

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A-6775-03T5

October 13, 2005