VINCENT F. PHILLIPS v. AMBROSE I. EKHELAR, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3322-04T5
3322-04T5

VINCENT F. PHILLIPS,

Plaintiff-Appellant,

v.

AMBROSE I. EKHELAR and

ANTHONY A. EKHELAR,

Defendants-Respondents.

_____________________________

 

Submitted March 14, 2006 - Decided March 31, 2006

Before Judges Kestin and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Essex County,

L-4534-03.

LaRocca, Feeley, Smith and Rosellini,

attorneys for appellant (Pablo N. Blanco,

on the brief).

Kramkowski, Lynes, Fabricant and Bressler,

attorneys for respondents (Jeanne M. Walsh,

of counsel and on the brief).

PER CURIAM

This is an appeal by plaintiff, Vincent F. Phillips, from a summary judgment dismissing his complaint for damages resulting from a February 24, 2002, motor vehicle accident. We reverse.

At the time of the accident, plaintiff was subject to the "limitation on lawsuit" threshold contained in N.J.S.A. 39:6A-8a. After an answer had been filed and discovery exchanged, defendant, asserting a failure to cross the threshold, sought summary judgment dismissing the complaint. At the time the motion was heard, the motion judge was guided by our opinion in James v. Torres, 354 N.J. Super. 586 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003), holding that the adoption of the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-1.1 to -32, did not affect the so-called subjective prong of the test imposed by Oswin v. Shaw, 129 N.J. 290 (1992).

That prong required a plaintiff, as a condition of recovery in a threshold case, to demonstrate an injury significantly impacting the plaintiff's life. The motion judge, therefore, reviewed the submissions to determine if plaintiff had demonstrated that a reasonable jury could conclude that the accident resulted in injuries (1) falling within one of the six categories enumerated in N.J.S.A. 39:6A-8a and (2) having a significant impact on plaintiff's life.

The judge determined that plaintiff had provided sufficient proofs of a permanent injury within the scope of category six. However, she also concluded that plaintiff had failed to demonstrate a sufficiently serious impact. Accordingly, she dismissed the complaint. After that dismissal, the Supreme Court decided DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005). Those cases held that AICRA had removed the Oswin requirement that a plaintiff demonstrate a serious impact. Because the complaint was dismissed for failure of plaintiff to provide proofs that are no longer necessary, the dismissal must be reversed and the matter remanded to the trial court.

Defendant resists this result. He premises that resistance on a claim that plaintiff failed to produce a required comparison of the injuries claimed to have been sustained in the February 24, 2002, accident with those sustained in a prior accident as required by Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993). We recognize that the application of Polk to post-AICRA litigation is in question. Compare Davidson v. Slater, 381 N.J. Super. 22, 29 (App. Div. 2005) (continued vitality of Polk is "doubtful"), certif. granted, ___ N.J. ___ (2006), with Lucky v. Holland, 380 N.J. Super. 566, 573 (App. Div. 2005) (Polk analysis required). We need not comment on that question because the issue was not raised during the motion for summary judgment and, accordingly, we do not have the benefit of the motion judge's analysis. Under those circumstances, we will not consider the issue on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We do not preclude, however, consideration of any issue, including the issue implicated by Polk, if properly raised on remand.

Reversed and remanded.

 

(continued)

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A-3322-04T5

March 31, 2006