BARBARA MYERS, et al. v. LEIGH A. GARRETT , et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1343-05T31343-05T3

BARBARA MYERS and ANDREW S.

MYERS, her husband,

Plaintiffs-Appellants,

vs.

LEIGH A. GARRETT and FRANKLIN

P. GARRETT, JR., j/s/a,

Defendants-Respondents.

__________________________________

 

Argued September 20, 2006 - Decided October 25, 2006

Before Judges Hoens and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-5498-02.

Jeffrey M. Keiser argued the cause for appellants.

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

PER CURIAM

Plaintiffs appeal from an October 21, 2005 order denying their motion seeking relief from judgment pursuant to Rule 4:50-1(f), in light of the Supreme Court decisions in DiProspero v. Penn, 183 N.J. 477 (2005), and Serrano v. Serrano, 183 N.J. 508 (2005). We affirm.

This matter arises out of a motor vehicle accident occurring on May 7, 2001, from which plaintiff Barbara Myers sustained injuries. At the time of the accident, she was subject to the verbal threshold lawsuit limitation pursuant to the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8(a). Plaintiff and her husband, Andrew S. Myers, filed a two-count complaint and demand for jury trial against defendants on October 8, 2002, alleging negligence and loss of consortium. The case proceeded to trial on June 21, 2004. The jury entered a verdict of no cause on June 24, 2004, and judgment was entered in favor of defendants. Plaintiff did not move for a new trial pursuant to Rule 4:49-1, nor did she file a notice of appeal pursuant to Rule 2:2-3(a)(1).

On June 14, 2005, the Court decided DiProspero, supra, and Serrano, supra, definitively holding in both cases that the 1999 amendments to AICRA do not require proof of the Oswin second prong in order to recover non-economic damages. DiProspero, supra, 183 N.J. at 506; Serrano, supra, 183 N.J. at 510. The DiProspero and Serrano decisions overruled our November 2002 decision in James v. Torres, 354 N.J. Super. 586 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003), where we held that the 1999 amendments to AICRA did not eliminate Oswin's second prong. James, supra, 354 N.J. Super. at 588. Because the second prong was submitted to the jury in plaintiff's case, plaintiff filed a motion for relief from judgment pursuant to Rule 4:50-1(f) on September 8, 2005.

Plaintiff contends that in light of the Court's clear statement in DiProspero that its decision did not reflect a change in the application of AICRA, but rather, recognition that it had been applied mistakenly, the trial court's denial of plaintiff's motion for relief from judgment had the effect of holding her to a higher standard of knowledge than the James court and punished her for accepting James as dispositive of the issue. Plaintiff argues further that her perceived finality of the James decision was reinforced by the March 2003 revised Limitation on Lawsuit Option jury instruction, which references the James decision. Model Jury Charges (Civil) 5.42 (revised June 2005). Thus, plaintiff maintains there was no reason to believe that James would be overturned nor any rational basis to pursue an appeal. Defendants urge the court to reject this contention, arguing that prior to the commencement of trial, plaintiff was on notice that the holding in the James decision was being called into question.

On March 17, 2004, three months before plaintiff's trial commenced, we decided Serrano, upholding the grant of summary judgment dismissing the plaintiff's complaint for failing to satisfy the second prong under Oswin. Serrano v. Serrano, 367 N.J. Super. 450 (App. Div. 2004), rev'd, 183 N.J 508 (2005). In the decision, we noted that three months earlier, in the unpublished Appellate Division opinion in DiProspero, No. A-3162-02T1 (App. Div. Jan. 30, 2004), the dissenting judge adopted the reasoning in Compere v. Collins, 352 N.J. Super. 200 (Law Div. 2002), that the second prong was no longer applicable under AICRA. Serrano, supra, 367 N.J. Super. at 458-59. Then, on May 21, 2004, one month before plaintiff's trial commenced, the Court granted certification in Serrano. Serrano v. Serrano, 180 N.J. 357 (2004).

Subsequent to the Court's decision in DiProspero and Serrano, we addressed their retroactive application in Beltran v. DeLima, 379 N.J. Super. 169 (App. Div. 2005). There we held that retroactivity was "applicable to all prejudgment matters pending in the trial courts and to those matters that [were] on direct appeal" at the time the two cases were decided. Id. at 176-77. We expressly declined to address retroactivity beyond the "pipeline cases." Id. at 173. That issue, however, was most recently addressed in Ross v. Rupert, 384 N.J. Super. 1 (App. Div. 2006), where we held that retroactive application of DiProspero and Serrano did not extend to those cases that were not pending in the trial court or on appeal at the time the two decisions were rendered.

Relief from judgment pursuant to Rule 4:50-1(f) requires plaintiff to demonstrate extraordinary circumstances justifying the relief sought. In denying the motion, the trial judge, citing Hartford Ins. Co. v. Allstate Ins. Co., 68 N.J. 430 (1975), stated that "a 'change in the law or in the judicial view of an established rule of law is not such an extraordinary circumstance' as to justify relief from final judgment where the time for appeal has expired." Id. at 434 (quoting Collins v. City of Wichita, 254 F.2d 837 (10th Cir. 1958)). This general rule "rest[s] principally upon the important policy that litigation at some point must have an end." Ibid.

We are not persuaded by plaintiff's argument that her reliance upon the finality of the James decision satisfies the extraordinary circumstances requirement for relief under Rule 4:50-1(f). If the reliance upon the James decision was premised upon the Court's denial of certification, then the grant of certification in the Serrano decision, prior to the commencement of plaintiff's trial, placed plaintiff on notice that the Court was revisiting the holding in James. Further, our reference in Serrano to the fact that a dissenting judge in DiProspero rejected the James holding was additional notice to plaintiff that DiProspero was subject to review as of right. R. 2:2-1. Thus, the procedural posture of DiProspero and Serrano at the time the jury reached its verdict afforded plaintiff the choice to preserve the issue of the continued viability of Oswin's second prong by filing a notice of appeal following the judgment of no cause. Plaintiff chose not to do so, therefore, her motion for relief from judgment must be viewed as a substitute for her failure to file a timely appeal, an approach not sanctioned under Rule 4:50. Wausau Ins. Co. v. Prudential Prop. & Cas. Ins. Co., 312 N.J. Super. 516, 519 (App. Div. 1998).

We are satisfied that plaintiff's reasons for failing to file an appeal do not constitute extraordinary circumstances. Thus, the motion judge properly concluded that plaintiffs were not entitled to relief under Rule 4:50-1(f).

 
Affirmed.

References throughout this opinion to plaintiff, singular, refer to Barbara Myers.

Oswin v Shaw, 129 N.J. 290, 318 (1992) (holding that under the verbal threshold, in addition to proving that an injury fits within one of the applicable statutory categories, the plaintiff must prove that the injury sustained has had an impact upon the plaintiff's life).

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A-1343-05T3

October 25, 2006