FRANCESCO ROTELLA v. ZOJA BITICI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3307-04T53307-04T5

FRANCESCO ROTELLA,

Plaintiff-Appellant,

v.

ZOJA BITICI,

Defendant-Respondent.

 

Argued December 21, 2005 - Decided

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, MON-L-1295-04.

Richard A. Jagen argued the cause for appellant (Connell Foley, attorneys; Francis E. Schiller, of counsel; Gregory E. Peterson, on the brief).

William A. Garrigle argued the cause for respondent (Garrigle and Palm, attorneys; Cynthia L. Sozio, on the brief).

PER CURIAM

In this verbal threshold appeal, plaintiff challenges the Law Division's dismissal of his complaint on summary judgment. We reverse.

On May 2, 2003, plaintiff Francesco Rotella was operating his motor vehicle in Long Branch, New Jersey, when it was struck by a car operated by defendant Zoja Bitici. Plaintiff's automobile insurance had a limitation on lawsuit threshold pursuant to the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. Plaintiff claims that as a result of the accident he suffered significant neck and back injuries, including lumbar disc herniations at L4-5 and he experienced right L5 lumbar radiculopathy.

In addressing defendant's motion for summary judgment, the Law Division recognized the herniated disc that was demonstrated on the July 3, 2003 MRI, and concluded that the medical evidence was sufficient to create a factual dispute as to whether there was objective evidence of an injury as a result of the accident. The judge dismissed plaintiff's complaint on the grounds that his injuries did not have a serious impact on his life. See Oswin v. Shaw, 129 N.J. 290, 318 (1992).

The New Jersey Supreme Court concluded, in DiProspero v. Penn, 183 N.J. 477, 481-82 (2005), and Serrano v. Serrano, 183 N.J. 508, 510 (2005), that to qualify for noneconomic damages under AICRA, it is not necessary for a plaintiff to demonstrate that the injuries sustained in the accident had a serious impact on the plaintiff's life. See also Juarez v. J.A. Salerno & Sons, Inc., ___ N.J. ___, ___ (2005) (plaintiff need only prove injuries satisfy one of the threshold categories in AICRA). DiProspero and Serrano are afforded pipeline retroactivity. Pungitore v. Brown, 379 N.J. Super. 165, 168-69 (App. Div. 2005).

Given the Supreme Court mandates in DiProspero, Serrano, and Juarez, in that the Law Division dismissed plaintiff's complaint solely on the serious impact test, we reverse and reinstate plaintiff's complaint. Whether plaintiff proved by objective credible evidence that he suffered a permanent injury, see Juarez, supra, ___ N.J. ___, ___ (2005) (slip op. at 4), is a question for the jury.

 
Reversed. We remand for further proceedings consistent with this opinion.

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A-3307-04T5

January 9, 2006