JENNIFER MCKELVEY f/k/a JENNIFER WALKER v. TODD T. BOKER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0739-05T50739-05T5

JENNIFER MCKELVEY f/k/a

JENNIFER WALKER,

Plaintiff-Appellant,

v.

TODD T. BOKER,

Defendant-Respondent,

and

STATE FARM IDEMNITY,

Defendant.

___________________________________

 

Submitted: April 4, 2006 - Decided April 21, 2006

Before Judges Axelrad, Payne and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, L-2-03.

Martin J. Siegel, attorney for appellant.

Youngblood, Corcoran, Lafferty & Hyberg, attorneys for respondent (Chad M. Sherwood, on the brief).

PER CURIAM

Plaintiff Jennifer McKelvey appeals from an order entered on September 1, 2005, which denied her motion for reconsideration or for relief under Rule 4:50-1, seeking to vacate a summary judgment dismissal of her personal injury claims against defendant Todd T. Boker. Summary judgment had been entered on August 6, 2004, dismissing plaintiff's claim against the driver for non-economic loss for her failure to satisfy the "second prong" serious life impact requirement under the verbal threshold provisions of the Automobile Insurance Cost Reduction Act of l998 ("AICRA"), N.J.S.A. 39:6A-8a. See James v. Torres, 354 N.J. Super. 586, 596 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003). Reconsideration was denied by order of October 13, 2004.

At that time the only remaining claim was plaintiff's claim for PIP benefits against her own carrier, State Farm Indemnity. Plaintiff's counsel informed Boker's counsel there was a strong probability he would appeal the summary judgment dismissal once the claim against State Farm was resolved. Boker's counsel certified that on October l8, 2004 he sent correspondence to both counsel requesting copies of a stipulation of settlement or dismissal so he could advise his client when the appeal period had run should plaintiff choose not to pursue an appeal. During a follow-up inquiry of one or both counsel on the PIP claim, he was advised the matter was very close to, if not having been settled, and he would receive the stipulation of settlement or dismissal shortly. In May of 2005, without having received a final stipulation, Boker's counsel learned that plaintiff's case against State Farm had been reported settled and had been removed from the Salem County court's docket on January 3, 2005.

On June 14, 2005 the New Jersey Supreme Court decided DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005), which eliminated the requirement that a plaintiff demonstrate a serious life impact to satisfy the verbal threshold. On July 11, 2005 we decided Beltran v. Delima, 379 N.J. Super. 169, 173 (App. Div. 2005) (applying "pipeline retroactivity" to DiProspero and Serrano). We concluded that DiProspero and Serrano were "applicable to all prejudgment matters pending in the trial courts and to those matters that [were] on direct appeal" at the time they were decided. Id. at 176-77.

On July 20, 2005 plaintiff sought to revive her personal injury claim against Boker by filing a motion for reconsideration and/or relief under Rule 4:50-1. She asserted that her case qualified for "pipeline retroactivity" under Beltran. Plaintiff argued that because State Farm had not as yet satisfied the tentative settlement on the PIP claim and no releases had been exchanged, nor had a stipulation been filed, no final judgment as to all parties and issues had been entered and the case was thus still "pending." Alternatively, plaintiff sought an expansion of "pipeline retroactivity" under Rule 4:50-1. On September l, 2005 the trial court denied the motion. The stipulation of dismissal against State Farm was thereafter filed.

On appeal, plaintiff renews the arguments she made before the trial court. We reject her argument that this is a pipeline case under Beltran. Plaintiff does not dispute the representation that her case against State Farm was reported settled and removed from the Salem County court's docket on January 3, 2005, or that Boker's counsel was informed some time before May, 2005 that a stipulation would be forthcoming. Thus, for all intents and purposes plaintiff's case was concluded on January 3, 2005 when it was marked settled by the court. The filing of the stipulation was an unnecessary formality. See R. 4:37-1(a) ("an action may be dismissed by the plaintiff without court order" by filing, among other things, a stipulation of dismissal signed by all parties to the action.) (emphasis added). The forty-five days for appeal of that final judgment expired on February l7, 2005. After that date the defendant driver had the right to assume the case was over. We discern no basis under the facts of this case to allow the lack of a filed stipulation of dismissal on the PIP count of plaintiff's complaint as of June l4, 2005 to serve as an excuse to bring this case within the Beltran pipeline.

We likewise reject plaintiff's alternative argument seeking retroactive application of DiProspero and Serrano pursuant to Rule 4:50-1, based on the cogent analysis set forth in Ross v. Rupert, __ N.J. Super. __ (App. Div. 2006) (holding that DiProspero and Serrano do not apply to cases in which judgment had been entered and the time for reconsideration and appeal had expired before they were decided based on Rule 4:50-1 and the principle of finality).

Affirmed.

 

The appeal in DiProspero was perfected and the Court granted certification in Serrano on May 21, 2004. See Beltran v. Delima, 379 N.J. Super. 169, 174-75 (App. Div. 2005).

We note that the Automated Case Management System (ACMS) reflects the "end date" of the case as January 3, 2005. Moreover, the Stipulation of Dismissal, which was filed in the Salem County court on December 5, 2005, is dated May l7, 2005.

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A-0739-05T5

April 21, 2006