LOIS FOGLIA v. ALBERT T. POWELL, JR. et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4099-04T54099-04T5

LOIS FOGLIA,

Plaintiff-Appellant,

v.

ALBERT T. POWELL, JR. and

ALBERT T. POWELL, SR.,

Defendants-Respondents.

________________________________________________________

 

Submitted October 19, 2005 - Decided

Before Judges Stern and Sapp-Peterson.

On appeal from the Superior Court of New

Jersey, Law Division, Ocean County,

Docket No. L-170-04.

Drazin and Warshaw, attorneys for appellant

(Steven L. Kessel, on the brief).

Connell, Connell & Camassa, attorneys for respondent

(John A. Camassa, of counsel; Celine M. Vitale and

Mr. Camassa, on the brief).

PER CURIAM

Plaintiff, Lois Foglia, appeals from an order entered in the Law Division on March 18, 2005, granting summary judgment to defendants and dismissing the complaint on the basis of plaintiff's failure to satisfy the verbal threshold or tort limitation provisions of N.J.S.A. 39:6A-8a. The trial judge found that plaintiff satisfied the "objective portion" of the summary judgment model which we retained in James v. Torres, 354 N.J. Super. 586 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003), but not the "subjective portion." See Oswin v. Shaw, 129 N.J. 290 (1992).

Plaintiff contends that "the increased effect of plaintiff's injuries upon her subjectively, because of her pre-existing polio syndrome, satisfied the subjective prong of Oswin." She also contends that because the treating orthopedist, Dr. Brian Torpey, concluded that the accident "aggravated her underlying right shoulder inflammation and resulted in a complete tear of the rotator cuff including the tendon of the supraspinatus," and that she suffered "multilevel disk herniation," there was objective medical evidence of a "permanent" injury caused by the accident. Plaintiff further asserts that there was no evidence of any torn rotator cuff or herniated disks prior to the accident, and Dr. Torpey executed a certification of permanency attributable to the accident.

Defendants insist that, in addition to the failure to satisfy the "serious impact requirement," the "certification of permanency obtained by plaintiff does not satisfy the statutory prerequisites," and defendants were entitled to summary judgment as a matter of law essentially because plaintiff was a polio victim and her objective injuries were not caused by the accident.

The trial judge found "an objective finding of an injury [and] a determination that there has been a tear of the rotator cuff and that that results from the accident." He concluded that "[t]he more difficult" issue related to "the impact upon life," and that "her comparison of her lifestyles before and after the accident are rather vague." He detailed the impact on her life as alleged in response to the summary judgment motion, and concluded:

I don't diminish the injuries that she has suffered, but I do not find that those injuries are sufficient for us to meet the serious impact as defined in the cases . . . cited.

 
We reverse and remand to the trial court for trial in light of DiProspero v. Penn, 183 N.J. 477 (2005), which has been given pipeline retroactivity since defendants' brief was filed in this court. See Beltran v. DeLima, 379 N.J. Super. 169 (App. Div. 2005). See also Hardison v. King, 381 N.J. Super. 129, 134 (App. Div. 2005); Davidson v. Slater, 381 N.J. Super. 22 (App. Div. 2005).

Reversed and remanded.

(continued)

(continued)

3

A-4099-04T5

 

January 5, 2006