MELISSA EVERT v. GINA M. PICANO, EDITH PICANO et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5595-04T35595-04T3

MELISSA EVERT,

Plaintiff-Appellant,

v.

GINA M. PICANO, EDITH PICANO

and ANTONIO MCCLENNY,

Defendants-Respondents.

 

Submitted February 28, 2006 - Decided March 30, 2006

Before Judges Hoens and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7286-03.

Ariyan, Khoury & Schildiner, attorneys for appellant (Joseph M. Ariyan, on the brief).

Hahn & Howarth, attorneys for respondents Gina M. Picano and Edith Picano (David G. Hahn, on the brief).

Respondent Antonio McClenny has not filed a brief.

PER CURIAM

Plaintiff Melissa Evert appeals from two May 13, 2005 orders of the Law Division granting summary judgment in favor of defendants Antonio McClenny, Gina Picano and Edith Picano in this personal injury action. We reverse and remand.

The complaint arose as a result of an automobile accident on October 10, 2001 in which plaintiff asserts that she was injured. At the time of the accident, she was a passenger in a vehicle driven by McClenny. According to her complaint, that vehicle was struck by another vehicle driven by Gina Picano and owned by Edith Picano. At all times relevant to the issues raised on appeal, plaintiff was subject to the "limitation on lawsuit" threshold included in the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35.

After an answer was filed and discovery was exchanged, defendants moved for summary judgment, asserting plaintiff had failed to present evidence sufficient to cross the threshold. At the time the motion was heard, the motion judge was guided by our opinion in James v. Torres, 354 N.J. Super. 586 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003). We there held that AICRA did not alter the application of the two-part test imposed by Oswin v. Shaw, 129 N.J. 290 (1992). Therefore, in considering defendants' summary judgment motions, the judge first considered Oswin's first prong, requiring objective medical proof of a qualifying injury. The judge concluded that plaintiff had presented sufficient evidence for this purpose. He stated that the proofs created:

genuine issues of material fact in dispute as to whether or not there is objective medical evidence to support the causal connection between the disc herniations and disc bulges to the accident, and whether or not that in fact is a permanent injury within [the meaning of the statute.]

The judge then turned to an analysis of the second Oswin prong. That required any plaintiff, as a condition of recovery in a verbal threshold case, to demonstrate that he or she had sustained an injury that was severe or had a significant impact on plaintiff's life. Applying this aspect of the test, the motion judge reviewed the submissions to determine if plaintiff's proofs were sufficient to do so. He concluded that plaintiff's proofs did not demonstrate that the injuries plaintiff sustained in the accident had a serious impact on her life. Accordingly, he granted defendants' motion for summary judgment.

After that dismissal, the Supreme Court decided DiProspero v. Penn, 183 N.J. 477 (2005), and Serrano v. Serrano, 183 N.J. 508 (2005). In those two decisions, the Court held that AICRA had removed the Oswin requirement that a plaintiff demonstrate a serious impact in order to survive a motion for summary judgment. The Court has since reiterated that holding. See Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332, 334 (2005). We have concluded that these opinions are entitled to have retroactive effect. See Beltran v. DeLima, 379 N.J. Super. 169, 176-77 (App. Div. 2005)(applying pipeline retroactivity).

This complaint was dismissed because plaintiff failed to provide proofs that were necessary only as a result of the second Oswin prong. Applying Serrano and DiProspero to this record, we conclude that the dismissal must be reversed and the matter remanded to the trial court.

Defendants, who did not file a cross-appeal, argue on appeal that the record before the motion judge failed to demonstrate that plaintiff suffered a qualifying injury in the accident as required by AICRA. They argue that there is evidence in the records of plaintiff's treating doctor that is inconsistent with the opinion he expressed concerning permanency of her injury. In addition, defendants argue that the treatment given to plaintiff effectively resolved her complaints to such an extent that her proofs fall short of demonstrating that she has a permanent injury.

In so arguing, defendants are inviting us to substitute a different analysis of the record for that expressed by the motion judge as it relates to the first Oswin prong. We decline to do so. Rather, it appears that the trial court considered the submissions and resolved this issue against defendants. We do not, however, preclude defendants as a part of the proceedings on remand from seeking clarification, by means of a motion for reconsideration, of the judge's determination of this issue.

Reversed and remanded.

 

The record reflects that, in addition to being a defendant in the complaint filed by this plaintiff, McClenny filed his own complaint against Gina Picano and Edith Picano for injuries he asserts that he sustained in the same incident. The orders before us on appeal do not affect the separate litigation filed by McClenny for his injuries.

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A-5595-04T3

March 30, 2006