PAMELA A. DeTORRES v. RICHARD C. MARTIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2021-05T32021-05T3

PAMELA A. DeTORRES,

Plaintiff-Appellant,

vs.

RICHARD C. MARTIN,

Defendant-Respondent.

__________________________________

 

Argued: November 9, 2006 - Decided December 1, 2006

Before Judges Cuff, Winkelstein and Fuentes.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-604-01.

Robert L. Grundlock, Jr., argued the cause for appellant (Rubin, Ehrlich & Buckley, attorneys; Mr. Grundlock, on the brief).

Chris E. Piasecki argued the cause for respondent (Graziano, Piasecki, Whitelaw & Simko, attorneys; Mr. Piasecki, on the brief).

Martin J. Siegel, attorney for amicus curiae American Trial Lawyers Association-NJ (Karin M. Wood, on the brief).

PER CURIAM

Plaintiff Pamela A. DeTorres was injured in an automobile accident on January 21, 2001. On June 2, 2004, trial commenced during which the trial judge instructed the jury that it had to find that plaintiff suffered a permanent injury that had a substantial impact on her life in accordance with James v. Torres, 354 N.J. Super. 586 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003), in order for plaintiff to recover. The jury found that plaintiff did not meet the James standard and judgment was entered in favor of defendant, Richard C. Martin. Following the decisions in DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005), plaintiff filed a motion pursuant to Rule 4:50-1(f) to vacate the final judgment and allow a new trial. Plaintiff appeals from the denial of this motion. We affirm.

In Beltran v. DeLima, 379 N.J. Super. 169, 174 (App. Div. 2005), this court held that the DiProspero and Serrano rulings should be given pipeline retroactivity. We said:

We view the balance of these policy factors as tipping toward a finding of pipeline retroactivity in cases involving the interpretation of N.J.S.A. 39:6A-8a. As we have stated, we find it difficult to fault those who relied upon James as setting forth the proper interpretation of the limitation on lawsuit provisions of N.J.S.A. 39:6A-8a, particularly after certification was denied to that decision. Nonetheless, because an issue of statutory construction remained that the Supreme Court had not addressed, it could not be claimed that the issue was in an respect "settled," particularly after the parties' appeal was perfected in DiProspero and certification was granted in Serrano on May 21, 2004. It would be unfair not to accord the Supreme Court's newly-announced rule pipeline retroactivity to those multitudinous cases in which challenges to the utilization of the Oswin model and the interpretation of Oswin's precepts remain pending, simply because they did not constitute the vehicle for the Supreme Court's decision.

[Id. at 174-75 (citations omitted).]

Judge Buchsbaum relied on Beltran and addressed the unique facts of this case. He found that the law was unsettled. A dissent had been filed by a judge of the Appellate Division in DiProspero, the appeal had been perfected in DiProspero, and the Supreme Court granted certification in Serrano on May 21, 2004. 180 N.J. 357 (2004). All of these events occurred before entry of the June 8, 2004 judgment. Furthermore, an article appeared in the May 3, 2004 edition of the New Jersey Lawyer that explained the issues in DiProspero and Serrano. A July 12, 2004 article in the New Jersey Law Journal reported that various legislators disagreed with the James holding. The first article preceded the June 2004 trial; the second article appeared during the forty-five-day window to file a notice of appeal from the June 8, 2004 judgment.

Judge Buchsbaum also observed that full retroactive application of the DiProspero rule would frustrate the legislative goal of cost-containment. Finally, the judge noted that full retroactivity would have an adverse affect on the administration of justice because hundreds, if not thousands, of closed cases would be reopened.

Since Judge Buchsbaum issued his oral and written opinions, this court considered a similar argument. In Ross v. Rupert, 384 N.J. Super. 1, 10 (App. Div. 2006), this court held that a plaintiff's Rule 4:50-1(f) motion that sought to vacate a summary judgment in favor of the defendant in a verbal threshold case was properly denied. As in this case, the summary judgment was based on James, it was entered before DiProspero and Serrano were decided, and neither a timely motion for reconsideration nor a notice of appeal was filed before the issuance of the DiProspero and Serrano opinions. Id. at 3. In short, as in this case, the judgment was final. In affirming the denial of the Rule 4:50-1(f) motion, Judge Stern stated:

In the case before us, the "new rule of law" deals with an initial interpretation by the Supreme Court of a statute that has been on the books since 1998. Moreover, and quite significant for present purposes, the motion for relief was filed long after the time in which to move for reconsideration or file an appeal had passed, and plaintiff asks us to extend Beltran's "pipeline retroactivity" to this case despite the longstanding final judgment. However, this is not a criminal case involving constitutional issues or implicating the trustworthiness of the fact-finding process. Hence, there is no basis for granting full retroactivity beyond the "pipeline."

[Id. at 7 (citations omitted).]

We discern no reason not to apply this reasoning to this case. Contrary to plaintiff's contention, there is not a fundamental difference between the summary judgment orders in Beltran and Ross and the judgment entered following trial in this case. All are final judgments and all were founded on the application of James.

 
The decision to afford a limited or pipeline retroactivity inevitably excludes some from the benefit of the rule. The holding in Beltran, however, provides a thoughtful and orderly consideration of the ramifications of the rules announced in DiProspero and Serrano. We also note that plaintiff's appeal would require us to ignore the often-stated principle that a Rule 4:50-1 motion is not a substitute for appeal. See Camacho v. Camacho, 381 N.J. Super. 395, 401 (Law Div. 2005). Therefore, we affirm the November 18, 2005 order denying plaintiff's Rule 4:50-1(f) motion for the reasons expressed by Judge Buchsbaum in his November 18, 2005 oral and written opinion, as supplemented by this court's subsequent opinion in Ross, supra, 384 N.J. Super. at 1, which we follow.

Affirmed.

Oswin v. Shaw, 129 N.J. 290 (1992).

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A-2021-05T3

December 1, 2006