MARILYN RAMOS, et al. v. ANTONIO PEREZ, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1158-05T11158-05T1

MARILYN RAMOS and

NOBERTO NEGRON, husband and wife,

Plaintiffs-Appellants,

v.

ANTONIO N. PEREZ and

MARGARITA PEREZ,

Defendants-Respondents.

_______________________________________

 

Submitted October 5, 2006 - Decided November 8, 2006

Before Judges A. A. Rodr guez and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-775-03.

Dansky, Katz & Ringold, attorneys for appellants (David R. York, on the brief).

Styliades, Jackson and DiMeo, attorneys for respondents (Donald Caruthers III, on the brief).

PER CURIAM

The narrow question in this appeal is whether plaintiff Marilyn Ramos, an injured motorist, and her husband, Noberto Negron, suing per quod, are subject to the lawsuit limitation option under the Automobile Insurance Cost Reduction Act of 1998 ("AICRA"), N.J.S.A. 39:6A-8. Plaintiffs argue that they are entitled to the application of the Supreme Court's holdings in DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005), construing AICRA to relieve plaintiffs of the need to prove a serious lifestyle impact in order to recover non-economic damages.

The Law Division disagreed with plaintiffs, ruling that their claims were not within the retroactivity "pipeline" when DiProspero and Serrano were decided on July 14, 2005. See Beltran v. DeLima, 379 N.J. Super. 169, 176-77 (App. Div. 2005)(according DiProspero and Serrano pipeline retroactivity).

We reverse.

The pertinent facts are not complicated. On August 23, 2001, plaintiff, Marilyn Ramos, was rear-ended in her car by another car driven by defendant, Antonio Perez, and owned by defendant, Margarita Perez. She suffered soft-tissue injuries to her neck and back, for which she received treatment from a chiropractor, a pain management doctor and her family physician. Plaintiffs sued defendants for personal injuries in the Law Division, claiming in the lawsuit, as is customary, both economic and non-economic (pain, suffering and lost enjoyment of life) damages.

After discovery ended, defendants moved for summary judgment, contending that plaintiffs' non-economic injuries were not compensable under the AICRA verbal threshold. Defendants argued that Marilyn could still perform many of the routine daily activities after this accident that she had performed beforehand. Defense counsel submitted a proposed order granting summary judgment. The order failed, however, to distinguish between plaintiffs' non-economic damages and their economic damages, the latter of which are not limited by the AICRA verbal threshold.

Following oral argument confined to plaintiffs' non-economic claims, the Law Division granted defendants' motion. Adhering to AICRA case law prior to the Court's opinions in DiProspero and Serrano, see James v. Torres, 354 N.J. Super. 586 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003). The court found that plaintiffs were ineligible for non-economic damages because Marilyn had not demonstrated that the subject accident had caused a serious detrimental impact on her lifestyle. The court entered defendants' proposed order on April 1, 2005, which dismissed plaintiffs' claims in their entirety, including plaintiffs' economic claims.

Forty-eight days later, on May 19, 2005, plaintiffs moved under R. 4:50-1 to amend the April 1, 2005 order because it had improperly swept in plaintiffs' economic claims. Plaintiffs asserted in that regard that Marilyn had claims for lost wages of over $2,000 and several thousand dollars in non-covered medical costs.

On July 8, 2005, the judge who had granted defendants' summary judgment motion reinstated plaintiffs' economic claims. However, language inserted by the judge into the order provided that it did not extend plaintiffs' time to appeal the earlier dismissal of her non-economic claims. Plaintiffs moved for reconsideration of that proviso, which the judge denied on September 23, 2005.

Plaintiffs filed a notice of appeal on November 4, 2005, seeking a determination that the Supreme Court's July 14, 2005 supervening opinions in DiProspero and Serrano, which eliminated the presumed "lifestyle" prong of AICRA, should apply retroactively to plaintiffs.

As a preliminary matter, we note that the present appeal is interlocutory, as there is no indication that the economic issues have been resolved. See R. 2:2-3(a)(1)(appeals of right from final judgments). Even so, we decline to dismiss the appeal on that basis, and instead we grant leave to appeal, sua sponte, in the interests of efficacy.

Because the proceedings in the Law Division were not yet final on July 14, 2005, plaintiffs' case was plainly within the retroactivity pipeline when DiProspero and Serrano were decided. Accordingly, the clarified rules of law governing AICRA cases, as announced that date by the Supreme Court, apply to plaintiffs' still-pending matter. See Beltran, supra, 379 N.J. Super. at 178; see also Ross v. Rupert, 384 N.J. Super. 1, 5 (App. Div. 2006). Because defendants' summary judgment hinged entirely on plaintiffs' failure to prove a serious lifestyle impact, plaintiffs are now entitled to have their non-economic claims reinstated.

We recognize that by May 19, 2005 plaintiffs had missed the twenty-day deadline to correct the overbroad initial order of April 1, 2005 through a motion for reconsideration, see R. 1:7-4(b) and R. 4:49-2, or through an appeal, which had to be filed within forty-five days. See R. 2:4-1(b). Nonetheless, plaintiffs acted with reasonable dispatch by applying for relief under R. 4:50-1 to cure the mistake arising out of defendants' misdrafted order.

If, however, defense counsel had submitted a proper order with his motion in the first place, plaintiffs' economic claims would have been preserved, and the order would have been a non-final one for partial summary judgment. That scenario also would have entitled plaintiffs to the pipeline application of DiProspero and Serrano.

In sum, we perceive no reason to deprive plaintiffs of the benefit of the newly-clarified rules of law for AICRA cases.

Reversed and remanded for further proceedings consistent with this opinion.

 

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A-1158-05T1

November 8, 2006