CHRISTOPHER McELWEE v. JAMIE L. DELLISANTI, et al.

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3825-04T13825-04T1

CHRISTOPHER McELWEE,

Plaintiff-Appellant,

v.

JAMIE L. DELLISANTI and BETTE

A. PISCIOTTI,

Defendants-Respondents.

_____________________________________________________

 

Argued December 12, 2005 - Decided

Before Judges C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. OCN-L-2266-03.

Kenneth L. Thomson argued the cause for appellant (Manning, Caliendo & Thomson, attorneys; Mr. Thomson, of counsel; Daniel E. Gold, on the brief).

Steven I. Litvak argued the cause for respondents (Litvak & Trifiolis, attorneys; Mr. Litvak, of counsel and on the brief).

PER CURIAM

Plaintiff filed a complaint on August 12, 2003 alleging he suffered personal injuries resulting from an automobile accident in Brick Township on August 17, 2001. He claims that this accident was caused by defendant Jamie L. Dellisanti's negligent operation of a motor vehicle owned by defendant Bette A. Pisciotti. Plaintiff had previously incurred personal injuries in accidents that occurred on November 8, 1999 and January 7, 2001. Summary judgment was entered on February 18, 2005 in favor of defendants based upon plaintiff's purported failure to vault the verbal threshold. Plaintiff appeals the dismissal of his complaint.

Plaintiff's claim is governed by the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-8(b), the Legislature's most recent attempt to eliminate "suits for injuries which are not serious or permanent," N.J.S.A. 39:6A-1.1. Prior to a number of decisions rendered while this matter was on appeal, it was understood that AICRA required that to avoid summary judgment a plaintiff must present evidence of a permanent injury of a type delineated in AICRA and that the injury had a serious impact on plaintiff's life. See James v. Torres, 354 N.J. Super. 586 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003). In addition, we have previously held that a comparative analysis is required to defeat summary judgment when the plaintiff claims an injury or aggravation of a body part that had also been injured as the result of some other accident. Ostasz v. Howard, 357 N.J. Super. 65 (App. Div. 2003) (holding that the Polk requirements remain viable under AICRA). When the trial judge granted summary judgment, she was bound to apply the standards set forth in James and Ostasz. However, because James has since been abrogated, and Ostasz questioned, we reverse and remand for further proceedings, without prejudice to defendants' right to again seek summary judgment in light of the current applicable standards.

In considering the impact of plaintiff's prior accidents on his claim, the trial judge only briefly, and in a conclusory manner, determined that plaintiff had sufficiently distinguished the current injuries from the pre-existing injuries:

I have no problem with the Polk analysis in this. I think that the plaintiff has submitted sufficient information, medical, objective, and credible opinion as to an alleged aggravation. And, in fact, Dr. Walsh says that there was a 2.5 percent increase attributed to the third accident. So at least the Polk analysis has been met.

The remainder of the judge's decision examined whether plaintiff had asserted a serious impact on his life:

But there still is an obligation to show that there has been from both a subjective and objective point of view a substantial impact on the plaintiff's way of life in that he can no longer participate in activities that he enjoyed before the accident. The allegation here is that as a result of the first and second accidents, that he had substantial restrictions on his activities.

And if I understand the plaintiff's position that there was an aggravation of the accident before, in his certification he says that, "After the November 8th, '99 accident the pain was so bad that I could no longer bowl, play cards, or cook. After the January 7th, 2001 accident I could no longer perform regular everyday activities such as household chores."

And then what he's saying is the aggravation of those injuries left plaintiff in such a condition that he still could not enjoy the activities that he once did.

I don't think that that is sufficient to meet the requirements of the verbal threshold with regard to this accident because it requires that there be some causal connection between the subject accident, meaning this accident, and the alleged disability. And really what he's saying is that his disability is the same as before with a slight aggravation and that the cause of his disability is really the first and the second accident.

So the motion for [s]ummary [j]udgment based on the verbal threshold will be granted.

On June 14, 2005, while this matter was on appeal, our Supreme Court decided DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005). In those decisions, the Court significantly altered the existing legal landscape and concluded that the Legislature did not intend that plaintiffs should meet the "serious impact" prong of the Oswin test when attempting to meet the requirements of AICRA's verbal threshold. The Court also held that an AICRA plaintiff is not obligated to demonstrate that an injury is serious because, as the Court stated, "the Legislature considered the injuries defined in N.J.S.A. 39:6A-8(a) to be serious by their very nature." Serrano, supra, 183 N.J. at 510. Only last month, the Court again emphasized this point, holding in Juarez v. J.A. Salerno & Sons, Inc., __ N.J. __, __ (2005), reversing, 379 N.J. Super. 91 (App. Div. 2005), that we "apparently misread" its earlier decisions by "superimpos[ing], perhaps inadvertently, the same serious injury standard . . . disapproved of in Serrano."

It should also be observed that in the wake of DiProspero and Serrano, panels of this court have disagreed about whether Polk's requirements should be applied to AICRA cases. As noted earlier, in a pre-DiProspero/Serrano decision, one panel held that Polk continued to apply in AICRA cases and obligated plaintiffs, whose claims are governed by AICRA, to provide a comparative analysis of the injuries in question and those that had occurred on some other occasion. Ostasz, supra, 357 N.J. Super. at 67. Once the Supreme Court decided DiProspero and Serrano, new questions were raised about the vitality of Ostasz. On October 12, 2005, one panel impliedly recognized the application of Polk to AICRA cases. Lucky v. Holland, 380 N.J. Super. 568 (App. Div. 2005). Eight days later, another panel found Polk inapplicable and expressly stated its disagreement with Ostasz. Davidson v. Slater, 381 N.J. Super. 22 (App. Div. 2005). And, on November 2, 2005, a third panel summarized this "developing controversy" but found it unnecessary, in the circumstances of that case, to "enter the fray completely." Hardison v. King, 381 N.J. Super. 129 (App. Div. 2005).

Against the backdrop of these recent holdings, we consider whether the summary judgment in this matter should remain standing. The trial judge held that plaintiff had satisfied the requirements of Polk but she also believed summary judgment was appropriate because plaintiff's life had not been seriously impacted by the injuries allegedly caused by this accident. In light of DiProspero and Serrano, the judge's determination that plaintiff's life was not seriously impacted cannot support summary judgment. Defendants recognize this, but contend that, notwithstanding, we should affirm the summary judgment entered in his favor because plaintiff failed to satisfy Polk's requirements and because of a lack of objective evidence of a permanent injury, even though the judge did not base summary judgment on either of those contentions.

We are certainly empowered to affirm a judgment for reasons other than those expressed by the trial judge. Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968). However, we conclude -- in light of all that has passed since the motion was originally filed, since it was opposed and since it was decided by the trial judge -- that it would be unfair to the parties if we were to consider the merits of the case based upon the new legal standard erected in DiProspero and Serrano, and based upon a standard that has recently been questioned, with mixed results, by this court in Lucky, Davidson and Hardison. The interests of justice would be better served if we were to allow defendants to move anew in the trial court for summary judgment, if they so wish, and to allow plaintiff to file new opposition, if he so wishes, in light of the recent developments in the manner in which AICRA has been interpreted.

 
Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993).

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

(continued)

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A-3825-04T1

January 9, 2006

 


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