MARY M. BOGHDADY v. MANJULA M. ANTALA and MANOJKUMA C. ANTALA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5520-04T15287-04T1

A-5520-04T1

MARY M. BOGHDADY,

Plaintiff-Appellant,

and

MAWAD W. ROPHAEL,

Plaintiff,

v.

MANJULA M. ANTALA and

MANOJKUMA C. ANTALA,

Defendants-Respondents.

MARY M. BOGHDADY,

Plaintiff,

and

MAWAD W. ROPHAEL,

Plaintiff-Appellant,

v.

MANJULA M. ANTALA and

MANOJKUMA C. ANTALA,

Defendants-Respondents.

 
Submitted March 7, 2006 - Decided April 19, 2006

Before Judges Kestin and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8691-02.

Hartsough Kenny & Chase, attorneys for appellant Mary Boghdady in A-5287-04T1 (Daniel E. Chase, of counsel and on the brief).

Stark & Stark, attorneys for appellant Mawad Rophael in A-5520-04T1 (Denise M. Forrester, of counsel and on the brief).

Martin Kane & Kuper, attorneys for respondents in both appeals, Manjula M. Antala and Manojkuma C. Antala (John F. Gillick, on the brief).

PER CURIAM

We consolidate these two appeals for the purpose of addressing the issues in this opinion. In the first appeal (A-5287-04T1), plaintiff Mary Boghdady appeals from the April 15, 2005 jury verdict in favor of defendants Manjula M. Antala and Manojkuma C. Antala. In the second appeal (A-5520-04T1), plaintiff Mawad W. Rophael appeals from the May 27, 2005 post-verdict order of the trial judge denying his motion for a new trial. We reverse and remand.

Only the following facts are relevant to the issues raised on appeal. On October 18, 2000, plaintiff Boghdady was a passenger in a vehicle being operated by plaintiff Rophael. Their vehicle was involved in a collision with another vehicle operated by defendant Manjula Antala and owned by defendant Manojkuma Antala. At the time of the accident, both plaintiffs were subject to the provisions of the verbal threshold, see Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, and both plaintiffs assert that they suffered injuries in the accident that qualified for purposes of that statute.

The trial was conducted in April 2005. In response to an application during the trial, the judge ruled that he was bound by this court's decision in James v. Torres, 354 N.J. Super. 586, 596 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003). In accordance with that then prevailing precedent, the trial judge concluded that, in order to meet the verbal threshold, plaintiffs were required to comply with the two-part test of Oswin v. Shaw, 129 N.J. 290, 318-19 (1992). As a result, each of the plaintiffs produced evidence during the trial relating to his or her injuries, the treatment each had received and the prognosis that related to each of them. In addition, evidence and testimony was introduced at trial relating to whether the injuries were caused by the accident, whether the injuries were permanent and whether the injuries were serious.

Near the end of the trial, counsel for the parties requested that the judge separate the two Oswin prongs into two questions on the jury verdict sheet because our Supreme Court was then considering appeals challenging the continuing validity of the second Oswin prong in AICRA litigation. The trial judge denied that request, concluding that, consistent with the dictates of James, he could include all aspects of the proofs required by Oswin for verbal threshold purposes in a single question. He therefore charged the jury in accordance with James and utilized in the jury charge language that defined the verbal threshold in terms of both of the Oswin prongs. The verdict sheet relating to each of the plaintiffs posed a single question concerning the verbal threshold that referred to a permanent injury and that incorporated the charge on both Oswin prongs. The jury answered this question in the negative as to each of the plaintiffs.

Plaintiff Boghdady filed her appeal after the judge issued his April 28, 2005 order entering the no cause judgment based on the jury verdict. Plaintiff Rophael moved for a new trial or, in the alternative, additur, which the trial judge denied on May 27, 2005 for reasons expressed on the record on that date. Plaintiff Rophael filed his appeal shortly thereafter.

Both plaintiffs argue on appeal that the Supreme Court's post-judgment decisions in DiProspero v. Penn, 183 N.J. 477, 481-82 (2005), and in Serrano v. Serrano, 183 N.J. 508, 509-10 (2005), mandate reversal and a new trial consistent with those decisions. See Beltran v. DeLima, 379 N.J. Super. 169, 177-78 (App. Div. 2005). In addition, plaintiff Rophael asserts that the trial court erred in denying his motion for directed verdict. In opposition to these arguments, defendants first argue that neither plaintiff is entitled to pipeline retroactivity because they failed to sufficiently preserve the issues addressed in these Supreme Court decisions. Defendants further argue that the record demonstrates that the jury's no cause verdict was based on its conclusion that neither of these plaintiffs had suffered a permanent injury within the meaning of AICRA as defined by our Supreme Court. See Juarez v. J.A. Salerno & Sons, 185 N.J. 332, 333-34 (2005); DiProspero, supra, 183 N.J. at 488; Serrano, supra, 183 N.J. at 516.

First, the record demonstrates that all of the parties were aware of the status of the then pending appeals in the AICRA cases and that counsel sufficiently preserved the objections to the trial judge's reliance on James. In particular, the discussion among counsel and the judge as to the propriety of using a single interrogatory to the jury in that context is sufficient to bring these plaintiffs within the scope of the retroactive application of those precedents.

Second, our review of the testimony and evidence compels us to reject defendants' suggestion that we should interpret the no cause verdict to be a rejection of the sufficiency of plaintiffs' evidence on to the first Oswin prong. Rather, the use of a single question inevitably required the jury to consider both aspects of the Oswin test. That, in turn, precludes us from concluding, as defendants contend we should, that the jury would have reached the same conclusion had they been charged in accordance with the decisions subsequently issued by our Supreme Court.

Finally, however, we also reject the argument raised by plaintiff Rophael to the effect that the judge erred in denying his directed verdict motion. Although we are aware of language in a recently published decision from this court that suggests that there is merit to plaintiff's argument, see Pardo v. Dominguez, 382 N.J. Super. 489 (App. Div. 2006), the record also contains expert opinions that equally support the contrary conclusion. Moreover, in the absence of a complete record in which this argument has been considered and addressed by the trial judge, we think it inappropriate to intervene.

We therefore reverse the order and judgment in favor of defendants based on the jury verdicts and we reverse the order denying plaintiff Rophael's motion for new trial. We remand this matter for a new trial consistent with the principles announced by our Supreme Court in DiProspero, Serrano and Juarez.

Reversed and remanded.

 

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A-5287-04T1

April 19, 2006