HANSABEN PATEL v. CARLOS ALVAREZ, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5314-04T2
A-5519-04T25314-04T2

A-5519-04T2

HANSABEN PATEL,

Plaintiff-Appellant,

v.

CARLOS ALVAREZ, OLGA M. ALVAREZ,

and HASMUKHBHAI PATEL,

Defendants-Respondents.

_______________

HASMUKHBHAI PATEL,

Plaintiff-Appellant,

v.

CARLOS ALVAREZ and OLGA M. ALVAREZ,

Defendants-Respondents.

_____________________________________

 

Submitted: November 15, 2005 - Decided June 26, 2006

Before Judges Kestin and Lefelt.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Passaic County, L-3164-03 and L-3143-03.

Amy L. Peterson, attorney for appellant in A-5314-04T2.

Sandra P. Nichols, attorney for appellant in A-5519-04T2.

Norton, Arpert, Sheehy & Higgins, attorneys for respondents Alvarez (Brian T. Higgins, on the letter in lieu of brief).

PER CURIAM

These two appeals from summary judgment dismissals arise from the same factual circumstances and involve related plaintiffs. We consolidate them for disposition.

The plaintiffs are wife and husband. They each allege injuries from an automobile accident on October 4, 2002. The husband, Hasmukhbhai Patel, was the driver of the vehicle in which plaintiffs were riding. The wife, Hansaben Patel, was the owner of the vehicle.

Defendants Alvarez moved for summary judgment in each case on the basis that neither plaintiff's injuries had satisfied the requirements of the verbal threshold contained in N.J.S.A. 39:6A-8a. The trial court considered the matters together and disposed of them in a single oral opinion and a consolidated order granting the motions for summary judgment.

The motion judge determined that, for summary judgment purposes, each plaintiff had satisfied the comparative analysis requirement of Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993), and that both had made sufficient showings of objective indicia of "serious permanent injury." The motion judge held, however, that neither plaintiff had made an adequate showing that the injuries had sufficiently impacted her or his lifestyle as to satisfy the second, subjective, prong of the verbal threshold test that then applied. See James v. Torres, 354 N.J. Super. 586 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003).

Since the date of decision in the trial court, the Supreme Court has held that, under the terms of the 1998 Automobile Insurance Cost Reduction Act (AICRA), L. 1998, c. 21; N.J.S.A. 39:6A-1.1 to -35, the two-prong test developed in Oswin v. Shaw, 129 N.J. 290 (1992), in respect of the former statutory language, no longer governs. The Court held, specifically, given the amendments in 11 of AICRA, N.J.S.A. 39:6A-8a, that second-prong analysis no longer applies. See DiProspero v. Penn, 183 N.J. 477, 506 (2005); Serrano v. Serrano, 183 N.J. 508, 517-18 (2005). See also Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332 (2005).

The dismissal order in this case must, therefore, be vacated and the matter remanded for reconsideration under currently prevailing standards. Counsel for defendants Alvarez has, in the light of current case law developments, consented to a remand of these cases.

 
Reversed and remanded.

(continued)

(continued)

3

A-5314-04T2

June 26, 2006