JOHN BURT et al. v. DANIEL REISS et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6725-04T26725-04T2

JOHN BURT and NANCY BURT,

Plaintiffs-Appellants,

v.

DANIEL REISS and JANE REISS,

Defendants-Respondents.

_______________________________________

 

Argued July 24, 2006 - Decided August 14, 2006

Before Judges C.S. Fisher and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Burlington County,

L-3138-01.

Stephen M. Tatonetti argued the cause for appellant (Dubois, Sheehan, Hamilton & Levin, attorneys; Mr. Tatonetti, on the brief).

Teresa Gerlock Hanni argued the cause for respondent (Law Offices of Styliades, Jackson and DiMeo, attorneys; Ms. Hanni, on the brief).

PER CURIAM

This is a verbal threshold case. On October 18, 2001, plaintiff John Burt (Burt) filed a complaint alleging that he sustained serious and permanent injuries in a motor vehicle accident as a consequence of the negligence of defendants Daniel and Jane Reiss (collectively defendants). Plaintiff Nancy Burt's claims are per quod.

We consider the evidence in the light most favorable to Burt. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The accident was on October 28, 1999. Dr. Dubowitch saw Burt after that accident. According to Dubowitch Burt was taken from the scene of the accident to the hospital and treated with a soft cast and splint for his wrist. Burt saw Dr. Rosengarten after his discharge. He saw Dr. Dubowitch on June 12, 2000. At that time he complained of lightheadedness, neck pain, upper back pain and right wrist discomfort. His major concern was the pain in his lower back and left leg. Burt denied preexisting problems of that sort.

Burt underwent testing and returned to Dr. Dubowitch on July 12, 2000. At that point, he had continued pain in his neck and upper back and "a lot of pain within his low back with left leg radiculopathy[,] and he had discomfort involving his wrist." An MRI showed no herniation, but a needle EMG study showed "proximal nerve lesion on the left side at the L4, L5 levels." Dr. Dubowitch detected muscle spasm in the areas of his cervical, dorsal and lumbar spine areas. Tinel's maneuver and Phalen's maneuver were positive as to his right wrist. After seeing Burt on July 12, 2000, Dr. Dubowitch's impressions were: post-traumatic cervical, dorsal, and lumbar sprain with myofasciitis; post-traumatic left lumbar radicular complaints and post-traumatic clinical mild carpal tunnel syndrome.

On August 9, 2000, Burt was injured in a second serious accident. On July 24, 2001, he underwent surgery to repair tears in the cartilage and a ligament in his wrist. Burt filed a complaint seeking damages for injuries sustained as a consequence of the second accident on July 25, 2002.

On July 8, 2003, Dr. Dubowitch concluded that, despite the surgery, Burt's wrist injury was permanent and he would continue to have limited use of his wrist. He noted that the August 2000 accident worsened the injury from the October 1999 accident. The litigation arising from the second accident was resolved by settlement.

On November 5, 2004, the trial judge granted summary judgment in favor of defendants on non-economic damages for all injuries other than the injury to Burt's right wrist. She denied defendants' motion with respect to Burt's wrist and economic injuries.

On July 29, 2005, the judge heard argument on defendants' motion for summary judgment on the remaining claims -- Burt's wrist injury and economic loss -- and on Burt's cross-motion. Burt asked the judge to reconsider her prior ruling on non-economic injuries and to consider defendants' application with respect to his wrist injuries in light of the Supreme Court's then recent decisions in DiProsepro v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005).

The judge's findings and conclusion do not address the materials submitted on economic damages and do not address the Supreme Court's decisions in DiPropsero or Serrano. The judge simply stated:

I have to deal with the issue of permanency as well and the Polk analysis. Those were the two items that I looked at . . . [.]

I went over Dr. Dubowitch's report very carefully. . . . I was not satisfied that there had been an objective medical scenario which would have indicated that the wrist situation was the result or the -- even the exacerbation of the wrist as a result of the second accident.

We must vacate the order of July 29, 2005, and remand for reconsideration in light of the controlling standards. The judge erred by not addressing either DiProspero or Serrano. See Juarez v. J.A. Salerno & Sons, 185 N.J. 332, 333-34 (2005) (applying DiProspero and Serrano to an appeal pending when those opinions were filed); Beltran v. DeLima, 379 N.J. Super. 169, 173 (App. Div. 2005) (holding that DiProspero applies to cases pending in the trial court and on appeal). The judge did not explain why reconsideration of the November 5, 2004 ruling on economic damages was consistent with the interests of justice. See R. 4:42-2.

Finally, the judge did not have the benefit of this court's decision in Davidson v. Slater, 381 N.J. Super. 22, 23 (App. Div. 2005), certif. granted, 186 N.J. 243 (2006), which discussed the irrelevance of Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993) after Serrano and DiProspero. In addition, neither party has provided this court with the transcript of the judge's decision of November 5, 2004, in which she concluded that Burt could proceed on a claim for economic damages and non-economic damages related to his wrist. Without that transcript we are unable to determine anything about the judge's ruling on those issues.

Accordingly, we vacate the order of July 29, 2005, and remand so that the judge may evaluate the evidential materials submitted on the motion in accordance with controlling legal standards.

Reversed.

 

Burt also sought and received workers' compensation benefits.

Because we are remanding, we note that N.J.S.A.

39:6A-8(a) requires "a bodily injury" that meets the threshold. To the extent that the November 5, 2004 order suggests that all injuries must qualify, it is not correct. See Serrano, supra, 183 N.J. at 518.

(continued)

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A-6725-04T2

 

August 14, 2006