OUIDA HARRISON v. ERYS F. LORA, ET AL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2452-03T52452-03T5

OUIDA HARRISON,

Plaintiff

v.

ERYS F. LORA, BYRON A. LONG,

TRISTAN A. BURKES, ET AL,

Defendants.

_____________________________________

ERYS F. LORA,

Defendant/Third Party Plaintiff,

v.

HAROLD F. NUNEZ, CHRYSLER

FINANCIAL CO., HECTOR R. FOLGAR

and ABIGAIL VELEZ,

Third Party Defendants.

______________________________________

SONIA LORA and LORENA GARCIA,

Guardian Ad Litem for Carmen Fernandez,

Plaintiffs-Appellants,

v.

HAROLD F. NUNEZ, HECTOR F.

FOLGAR, ABIGAIL VELEZ, ANDREA

MILBOURNFENTON, ERYS F. LORA,

BYRON A. LONG AND TRISTAN A. BURKES,

Defendants-Respondents,

and

CHRYSLER FINANCIAL CO., ENTERPRISE,

Defendants.

_____________________________________

 

Argued October 3, 2005 - Decided

Before Judges Kestin and Seltzer.

On appeal from Superior Court of

New Jersey, Law Division, Essex County,

L-1139-02.

Franklin G. Soto argued the cause for

appellants (Bastarrika, Guzman and Soto,

attorneys; Matthew D. DiBrino, on the brief).

Kathy A. Kennedy argued the cause for

respondent Burkes (Kramkowski, Lynes, Fabricant

and Bressler, attorneys; Ms. Kennedy of

counsel and on the brief).

John T. Sullivan argued the cause for

respondent Nunez (Lamb, Kretzer, Reinman

and Roselle, attorneys; Mr. Sullivan on

the brief).

Peter DeSalvo, Jr. argued the cause for

respondent Lora (Soriano, Henkel, Biehl

and Matthews, attorneys; Mr. DeSalvo on

the brief).

McElroy, Deutsch, Mulvaney and Carpenter,

attorneys for respondent Long (relying on

the brief filed on behalf of respondent Nunez).

Hoagland, Longo, Moran, Dunst and

Doukas, attorneys for respondents Folgar

and Velez (relying on the brief filed on

behalf of respondents Nunez and Burkes).

Respondent Milbournfenton did not file a brief.

PER CURIAM

This is an appeal by plaintiff, Lorena Garcia, from a summary judgment dismissing her action for damages resulting from a multi-car accident on April 30, 2000. We reverse and remand for reconsideration of the summary judgment motion in light of Serrano v. Serrano, 183 N.J. 508 (2005) and DiProspero v. Penn, 183 N.J. 477 (2005).

At the time of the accident, plaintiff was subject to the verbal threshold contained in N.J.S.A. 39:6A-8a. After answers were filed and discovery exchanged, defendants sought summary judgment dismissing her claim for failure to cross the threshold. The motion judge granted the application and dismissed the complaint on the grounds that "Lorena Garcia does not meet the subjective aspect of the Oswin test."

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), holding that the adoption of the Automobile Insurance Cost Reduction Act of 1998 (AICRA) did not affect the so-called subjective prong of the test imposed by Oswin v. Shaw, 129 N.J. 290 (1992). That prong required a plaintiff, as a condition of recovery in a threshold case, to demonstrate an injury significantly impacting the plaintiff's life. The motion judge, therefore, reviewed the submissions to determine if plaintiff had demonstrated that a reasonable jury could conclude that the accident resulted in injuries having a significant impact on her life.

The motion judge also considered whether the injury fell into one of the categories enumerated in N.J.S.A. 39:6A-8a. However, because he had concluded that the serious impact requirement of the verbal threshold had not been satisfied, he made no ruling on whether plaintiff had satisfied the so-called objective test applied to the N.J.S.A. 39:6A-8a categories.

After the plaintiff's complaint was dismissed, the Supreme Court decided Serrano v. Serrano, 183 N.J. 508 (2005) and DiProspero v. Penn, 183 N.J. 477 (2005). Those cases held that AICRA had removed the Oswin requirement that a plaintiff demonstrate a serious impact to survive a motion for summary judgment.

A review of the transcript of the judge's decision and the written opinion annexed to the judge's Order convinces us, as we have said, that the motion judge did not consider whether the plaintiff's injury falls within the categories enumerated by N.J.S.A. 39:6A-8. Accordingly, it is necessary to reverse the summary judgment and remand the matter to the trial court for reconsideration of the summary judgment motion in light of Serrano and DiProspero.

Reversed and remanded.

 

Lorena Garcia is identified in the caption as one of the Guardians ad Litem for Carmen Fernandez although the limited record demonstrates that she was treated throughout the lower court proceedings as a plaintiff in her own right. We will assume, since we have not been provided with the pleadings, that her independent claim was properly pled. Similarly, we are unable to determine the disposition of all of the claims in these consolidated actions. We assume that those claims whose dispositions art not reflected in the record have, in fact, been terminated.

(continued)

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A-2452-03T5

November 1, 2005