ANI CHU et al. v. GILA ROSENBLATT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5444-04T15444-04T1

ANI CHU and FU HWA CHU,

Plaintiffs-Appellants,

v.

GILA ROSENBLATT,

Defendant-Respondent.

_______________________________________

 

Argued March 14, 2006 - Decided March 30, 2006

Before Judges Axelrad and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4696-03.

Andrew J. Calcagno argued the cause for appellants (Calcagno & Associates, attorneys; Anthony T. Ling, on the brief).

Dennis R. O'Brien argued the cause for respondent (Campbell, Foley, Lee, Murphy & Cernigliaro, attorneys; Mr. O'Brien, on the brief).

PER CURIAM

Plaintiff Ani Chu was injured on October 15, 2001 when the sedan she was driving was broad-sided by a sedan driven by defendant Gila Rosenblatt. Chu, who is subject to the limitation on lawsuit option under the Automobile Insurance Cost Reduction Act of 1998 ("AICRA"), N.J.S.A. 39:6A-8, appeals the Law Division's dismissal of her personal injury claims on summary judgment. We reverse.

The motion judge, properly viewing the record in a light most favorable to plaintiff as the non-moving party, found that the record presented triable issues on what was formerly known as the "first prong" of the AICRA verbal threshold. In doing so, the judge noted the objective credible evidence, specifically disc bulges shown on MRI studies at C3-4, C4-5, C5-6 and C6-7 and foraminal encroachment shown by x-ray at L4-5 and L5-S1, which plaintiff's expert causally related to the subject accident. We will not disturb that determination here, because defendant did not cross-appeal on that issue, and the proofs independently appear sufficient to create genuine issues of material fact.

The motion judge granted defendant summary judgment instead on the former "second prong" of the AICRA verbal threshold, concluding that plaintiff had not established that her injuries from this accident produced a serious impact on her daily life activities. As defense counsel conceded before us, the former second prong of AICRA is inapplicable to this plaintiff, in light of the Supreme Court's supervening opinions in DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005), and the fact that plaintiff's case was in the appellate pipeline when those cases were decided. See Beltran v. DeLima, 379 N.J. Super. 169, 176-77 (App. Div. 2005).

Defendant argues that summary judgment is still appropriate because the judge erred in not requiring plaintiff to submit a medical expert's analysis under Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993), comparing her injuries from the subject accident to those she sustained in a prior accident in April of l998. The record does reflect that plaintiff suffered permanent injuries, in the form of herniated discs at the C3-4 and C5-6 levels, in that 1998 collision.

However, compliance with Polk, to the extent that particular doctrine even applies to AICRA claims, is not an issue in this case, because plaintiff's counsel stipulated at oral argument before us that plaintiff waives any claims of aggravation of her prior injuries. Indeed, the record contains objective proofs of what plaintiff characterizes as "new" injuries from the second accident, specifically at disc levels C4-5 and C6-7 and also in her lumbar region, providing a reasonable basis to pierce the verbal threshold. See Hardison v. King, 381 N.J. Super. 129, 134-35 (App. Div. 2005)(holding that a comparative analysis under Polk is not required where plaintiff is not claiming aggravation of prior injuries and where the factual construct lacks a reasonable basis to support a finding that plaintiff incurred a permanent injury from the subject accident).

Although we recognize that the multiple injuries to plaintiff's neck area may well be interrelated to some degree, we leave it to defense counsel on remand to demonstrate the extent of any such relationship to the jury. Since plaintiff has disavowed any aggravation claims, she will be confined on remand to recovering only for new injuries that she proves to emanate solely from the October 2001 accident.

 
Reversed and remanded for trial.

The continued applicability of the Polk doctrine to AICRA cases is an issue pending before the Supreme Court. See Davidson v. Slater, 381 N.J. Super. 22 (App. Div. 2005), certif. granted, __ N.J. __, (N.J. January 19, 2006)(holding Polk inapplicable to AICRA cases); but see Lucky v. Holland, 380 N.J. Super. 566 (App. Div. 2005)(contra).

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A-5444-04T1

March 30, 2006