KIRSTEN L. RODRIGUEZ et al. v. RAMABEN J. DIWANJI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6182-04T26182-04T2

KIRSTEN L. RODRIGUEZ and

JOHN RODRIGUEZ, her husband,

Plaintiffs-Appellants,

v.

RAMABEN J. DIWANJI,

Defendant-Respondent.

 

Submitted: March 27, 2006 - Decided April 13, 2006

Before Judges Fall and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket Number MID-L-5946-03.

Slavin & Morse, attorneys for appellants (Darren C. Kayal, on the brief).

David E. Rehe, attorney for respondent (John J. Kapp, on the brief).

PER CURIAM

In this automobile negligence personal injury action, plaintiffs Kristen Rodriguez and John Rodriguez appeal from denial of their motion for a new trial, following a jury verdict finding that plaintiff had not suffered a permanent injury as a proximate result of a motor vehicle accident. On appeal, plaintiffs present the following arguments:

POINT I

THE TRIAL COURT ERRED IN FAILING TO GRANT PLAINTIFFS' NEW TRIAL MOTION AS THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT II

THE TRIAL COURT ERRED IN FAILING TO GRANT PLAINTIFFS' NEW TRIAL MOTION, AS THE WRONG CHARGE WAS GIVEN TO THE JURY, RESULTING IN A MISCARRIAGE OF JUSTICE WHICH MANDATES A NEW TRIAL.

POINT III

THE TRIAL COURT ERRED IN FAILING TO GRANT THE NEW TRIAL MOTION, AS THE VERBAL THRESHOLD CHARGE WHICH INCLUDED THE SUBSTANTIAL IMPACT PRONG WAS GIVEN TO THE JURY, RESULTING IN A MISCARRIAGE OF JUSTICE.

This action arises from an automobile accident occurring on August 29, 2002, on Middlesex Turnpike in Woodbridge Township between vehicles being operated by plaintiff and defendant Ramaben J. Diwanji. Plaintiff suffered an injury to her right knee that necessitated surgery and she contended that said injury was permanent in nature, resulting in noneconomic damages. Liability was stipulated and the issue of damages was tried to a jury on June 13 and 14, 2005.

Plaintiff's cause of action for damages was subject to the limitation on lawsuit threshold, commonly known as the "verbal threshold," as set forth in the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, more specifically, N.J.S.A. 39:6A-8(a), which restricts an accident victim from suing a defendant for noneconomic damages unless she suffers, inter alia, "a bodily injury which results in . . . a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement."

On June 14, 2005, the Supreme Court issued its decisions in DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005). In those cases, the Court ruled that under the AICRA version of the verbal threshold, "an automobile accident victim who is subject to the threshold and sues for noneconomic damages has to satisfy only one of AICRA's six threshold categories and does not have the additional requirement of proving a serious life impact[,]" as had been required under the 1988 verbal threshold, the predecessor to AICRA, in accordance with its decision in Oswin v. Shaw, 129 N.J. 290, 318 (1992). DiProspero, supra, 183 N.J. at 481; see Serrano, supra, 183 N.J. at 509-10.

This case was tried based upon applicability of the two-prong Oswin test, under which plaintiff was required to establish both a permanent injury and that such permanent injury had a serious impact on her life. See James v. Torres, 354 N.J. Super. 586, 596 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003). In charging the jury, the trial judge stated, in pertinent part:

I told you yesterday that the plaintiff has the burden, not the defendant, the plaintiff has the burden of proving by a preponderance of the evidence, that means a greater weight of the believable evidence, that she sustained a permanent injury resulting with a serious impact upon her life. That's her obligation, she has to prove it. If she doesn't, she can't collect. If she does prove those factors she will be able to collect.

* * * *

The plaintiff has the burden of proving not only that she sustained an injury, a permanent injury and also the effect it had on her life, she has to prove causation. She has to prove that the injuries she sustained allegedly was a result of this accident. . . .

* * * *

Now I told you and I repeat it again, not every accident involves injuries which [are] compensable under New Jersey law. This plaintiff must prove that she has a permanent injury and it had a substantial effect on her life. Now I'm gonna give you the definition of a permanent injury. . . .

In order to recover any damages the plaintiff must establish by a fair . . . preponderance of the evidence that she sustained an injury caused by this accident consisting of a permanent injury within a reasonable degree of medical probability. Any injury shall be considered permanent when the body part or organ or both have not healed to function normally and it will not heal to function normally with further medical treatment.

The plaintiff must also prove the injury by objective, credible evidence, that is the evidence must be both objective and credible. Objective means that the . . . evidence must be verified by a physical examination, and observation and it cannot be based solely on the plaintiff's complaint.

Also, this is a second prong of the permanent injury. She must also prove that this injury has had a serious impact on the plaintiff's way of life. This means that the plaintiff must prove that the injury has seriously effected one or more activities which was a significant and important component of the plaintiff's way of life. For an injury to have a serious effect upon the activities the . . . effect cannot be mild, but rather must be important, significant and of some consequence. That is the definition of permanent injury that she must prove and she must prove it by a fair preponderance of the evidence.

[Emphasis added.]

The first two questions on the jury verdict sheet consisted of the following:

1. Did the Plaintiff suffer a permanent injury as a proximate result of the motor vehicle accident of August 29, 2002.

YES_______ NO_______ VOTE_______

IF YOUR ANSWER IS "NO" TO QUESTION NUMBER 1, DISCONTINUE YOUR DELIBERATIONS AND RETURN YOUR VERDICT SHEET TO THE COURT.

IF YOUR ANSWER IS "YES" TO QUESTION NUMBER 1, PROCEED TO ANSWER QUESTION NUMBER 2.

2. Did the injuries have a serious impact on the Plaintiff's life?

YES_____ NO______ VOTE______

IF YOUR ANSWER IS "NO" TO QUESTION NUMBER 2, DISCONTINUE YOUR DELIBERATIONS AND RETURN YOUR VERDICT TO THE COURT.

IF YOUR ANSWER IS "YES" TO QUESTION NUMBER 2, PROCEED TO ANSWER QUESTION NUMBER 3.

The jury unanimously answered "No" to question number 1, ending their deliberations.

After analyzing the record in the light of the written arguments advanced by the parties, we conclude that the charge given impermissibly encompassed the requirement of "serious impact" within the concept of "permanent injury" and had the capacity to lead jurors to the conclusion that in order to establish a qualifying permanent injury, they would be required to also find that plaintiff's injuries had a serious impact on her life. We reach this conclusion notwithstanding the separation in the verdict sheet of the questions of "permanent injury" and "serious impact."

The capacity of the charge to mislead the jury was buttressed by the testimony of the defense expert, Dr. Zemsky, who was engaged in the following colloquy on cross-examination:

Q. And you disagree with Dr. Charko that this is a permanent injury?

A. I . . . disagree with Dr. Charko that this is a serious injury, yes.

Q. It is a permanent injury though, isn't it?

A. Permanent, yes, she's gonna have a little defect in that . . . for life. Serious, no.

Assuming from the verdict it reached that the jury credited Dr. Zemsky's opinion, his testimony clearly linked the requirement of "serious" with the concept of "permanent injury."

Accordingly, we are constrained to reverse the order denying plaintiffs' motion for a new trial and remand the matter to the Law Division for retrial in accordance with the principles set forth in DiProspero and Serrano. In light of this determination, we need not address the remaining arguments presented by plaintiffs.

 
Reversed and remanded.

The claim of plaintiff John Rodriguez was based on alleged loss of consortium. References to "plaintiff" in this opinion are to Kirsten L. Rodriguez.

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A-6182-04T2

April 13, 2006