AURELIO ALFONZO et al. v. THOMAS DOYLE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5872-04T25872-04T2

AURELIO ALFONZO and CATHERINE

ALFONZO,

Plaintiffs-Appellants,

v.

THOMAS DOYLE,

Defendant-Respondent.

_____________________________________

 

Submitted May 10, 2006 - Decided August 21, 2006

Before Judges Wecker and Fuentes.

On appeal from the Superior Court of New

Jersey, Law Division, Hunterdon County,

L-484-03.

Simpkins & Simpkins, attorneys for

appellants (Darryl W. Simpkins and

Victoria Curtis Bramson, of counsel and

on the brief).

Gebhardt & Kiefer, attorneys for

respondent (Joseph F. Trinity, on the

brief).

PER CURIAM

Plaintiffs Aurelio Alfonzo and Catherine Alfonzo appeal from a judgment dismissing their auto negligence complaint based on the jury's verdict. Plaintiff was subject to the so-called "verbal threshold" under the Automobile Insurance Cost Reduction Act (AICRA), literally, the "[l]imitation on lawsuit option." See N.J.S.A. 39:6A-8, as amended by L. 1998, c. 21, 11. His claim was based largely on the contention that his injuries, one allegedly herniated disk and several bulging spinal discs, constituted a permanent injury under AICRA.

On May 26, 2005, the jury answered "No" to the following question on the verdict sheet: "Has the plaintiff Aurelio Alfonzo sustained a serious permanent injury or injuries as a result of the . . . accident?" (Emphasis added.) The jury therefore never reached the second question on the verdict sheet, whether the injury had a serious impact on plaintiff's life.

On June 14, 2005, the Court issued its decisions in Serrano v. Serrano, 183 N.J. 508, 509, 518 (2005), and DiProspero v. Penn, 183 N.J. 477, 481-82, 506 (2005), making it clear that the so-called second prong of Oswin v. Shaw, 129 N.J. 290, 307 (1992), was no longer applicable under AICRA. The only required element of a claim for non-economic damages is objective proof of "a bodily injury which results in" one of the six categories specified by N.J.S.A. 39:6A-8(a): "death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." DiProspero, supra, 183 N.J. at 481 (emphasis added). As Justice Albin wrote for the Court in Serrano, "We hold that the Legislature considered the injuries enumerated in N.J.S.A. 39:6A-8(a) to be serious by definition. Accordingly, we will not superimpose a new serious injury standard onto that statute." 183 N.J. at 518.

On July 11, 2005, we issued our decision that Serrano and DiProspero would be applied retroactively to cases "in the pipeline," that is, cases not yet tried and cases currently on appeal. Beltran v. DeLima, 379 N.J. Super. 169, 176-77 (App. Div. 2005). As Judge Payne wrote for this court in Beltran:

It would be unfair not to accord the Supreme Court's newly-announced rule pipeline retroactivity to those multitudinous cases in which challenges to the utilization of the Oswin model and the interpretation of Oswin's precepts remain pending, simply because they did not constitute the vehicle for the Supreme Court's decision.

[Id. at 175 (footnote omitted).]

Plaintiff's appeal therefore is governed by Serrano and DiProspero, and he is entitled to retroactive application of those decisions.

We agree with plaintiff that the unfortunate inclusion of the word "serious" in the first question clouds the jury's verdict. The judge denied plaintiff's attorney's request for "a charge that would show that plaintiff only has to say he sustained permanent injury." The judge, following our then extant decision in Serrano (see 367 N.J. Super. 450, 457, 460 (App. Div. 2004)), instead concluded that plaintiff was required to prove a "serious permanent injury" as well as "serious impact." The judge actually instructed the jury: "In order to recover damages in this case, plaintiff must prove by a preponderance of the evidence that as a result of the accident he sustained one or more serious permanent injuries within a reasonable degree of medical probability." (Emphasis added.) We cannot determine whether the jury found no permanent injury under the statutory definition, as it was entitled to do, or whether the jury found that although plaintiff suffered permanent injury in the accident, that injury was not sufficiently serious, which it was not entitled to do. The judge's instruction and the verdict sheet question including the word "serious" as well as "permanent," had the potential for influencing the jury's determination of permanency. In the context of existing law, the verdict sheet question, together with the jury instruction, cannot be viewed as harmless. The judgment therefore must be reversed. Plaintiff is entitled to a new trial.

Because we conclude that there must be a new trial on the basis of the now clearly erroneous charge and verdict sheet, we need not address plaintiff's second argument on appeal: that the judge's response and instruction respecting plaintiff's surprise testimony about a recent doctor's visit would itself constitute reversible error. The situation is unlikely to repeat itself, and we therefore need not comment further. We note, however, that medical evidence of the nature of plaintiff's claimed injuries, which largely focused on an alleged disc herniation, was vigorously contested. If presented with a properly framed question and instruction respecting the required element of plaintiff's claim, the jury may conclude that he did not suffer a permanent injury as a result of this accident. We do not suggest the outcome of a new trial, only that the verdict here was tainted by the question as posed.

Reversed and remanded for a new trial.

 

Catherine Alfonzo's claim was entirely derivative; we therefore refer to Aurelio Alfonzo as "plaintiff" in this opinion.

Although the verdict sheet itself is not included in the record before us, it is plain from the trial transcript and the parties' briefs that the question on the verdict sheet was as quoted.

As a result of the Supreme Court's resolution of that issue, Model Jury Charge 5.42 was amended almost immediately. The charge, however, previously had been amended to conform to AICRA, and at the time of trial the model charge prescribed this first jury question, in a case such as plaintiff's: "Has the plaintiff proven by a preponderance of the credible evidence that [he] sustained a permanent injury that was proximately caused by the accident?" Model Jury Charge 5.42C.

A second question on the verdict sheet explicitly addressed the second prong of Oswin, arguably distinguishing the now inapplicable "serious impact" question from the "permanent injury" question. But the jury never reached the second question.

(continued)

(continued)

6

A-5872-04T2

August 21, 2006