MICHAEL DEMAIO et al. v. CATHERINE DEGROSS, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6852-03T56852-03T5

MICHAEL DEMAIO and CAROL DEMAIO,

Plaintiffs-Appellants,

v.

CATHERINE DEGROSS and PEDRO MARTINEZ,

Defendants-Respondents.

______________________________________

 

Argued September 12, 2005 - Decided

Before Judges Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County,

L-274-03.

Louis J. Serafini argued the cause for appellants (Serafini & Serafini, attorneys; Mr. Serafini, on the brief).

Francis X. Ryan argued the cause for respondents (Green, Lundgren & Ryan, attorneys; Mr. Ryan, on the brief).

PER CURIAM

On February 5, 2001, plaintiff Michael DeMaio was operating a motor vehicle when he was involved in a collision with a vehicle driven by defendant Catherine DeGross. On January 6, 2003, Michael and his wife Carol filed a complaint for his personal injuries. Defendant moved for summary judgment, asserting that plaintiff failed to vault the verbal threshold under the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8. Granting defendant's motion, the judge found that plaintiff failed to present any evidence that his injuries had a significant impact on his life to overcome the second prong subjective standard set by Oswin v. Shaw, 129 N.J. 290 (1992), as applied to AICRA. Limiting her findings to plaintiff's failure to meet the subjective standard, the judge, however, noted that plaintiff's MRI showed that he suffered from disc bulges, which his medical expert found, were causally related to the accident.

On appeal, defendant asserts that plaintiff's injuries were insufficient to vault the verbal threshold because his proofs fail to establish objective evidence of a serious permanent injury related to the accident and a serious life impact. Defendant further asserts that plaintiff physician's certification was inadequate to establish permanent injury.

Plaintiff's medical proofs consist of a report and certification from his treating physician, Dr. Edmund Matzal, two MRIs of the lumbar spine, and one MRI of the cervical spine. The MRIs reveal that plaintiff suffered from broad based bulging of the annulus fibrosis at L5-S1 with impression upon the L5 nerve roots and bulging annuli at C3-4, C4-5, and C5-6 with straightening of the cervical lordosis. Dr. Matzal's medical report and certification assert that the disc bulging found on the MRIs resulted from the February 5 accident and that plaintiff's soft tissue injuries are permanent in nature and will not heal to function normally with further medical treatment.

While this appeal was pending, our Supreme Court decided DiProspero v. Penn, 183 N.J. 477, 481 (2005), holding that a plaintiff need not show a serious life impact under AICRA. In Serrano v. Serrano, 183 N.J. 508 (2005), decided on the same day as DiProspero, the Court concluded that it would not superimpose a new serious injury standard onto the verbal threshold requirement set forth in N.J.S.A. 39:6A-8(a), which it deemed "to be serious by definition." Serrano, supra, 183 N.J. at 518-19. Contrary to defendant's argument on appeal, the judge correctly observed that plaintiff's medical proofs establish objective evidence of injury related to the accident. Moreover, plaintiff's proofs and doctor's certification adequately establish, by objective credible evidence, a verbal threshold injury, which is permanent in nature and sufficient to survive a motion for summary judgment. DiProspero, supra, 183 N.J. at 489. Accordingly, we reverse and remand for further proceedings in accordance with DiProspero.

 
Reversed and Remanded.

As Michael suffered the injuries for which he seeks damages, we refer to him as plaintiff.

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A-6852-03T5

September 22, 2005