DEANNA SILVER v. EVA C. FERRETTI,

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5107-04T15107-04T1

DEANNA SILVER,

Plaintiff-Appellant,

v.

EVA C. FERRETTI,

Defendant-Respondent.

____________________________________________________________

 

Submitted December 7, 2005 - Decided

Before Judges Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, L-3345-03.

Seigel & Associates, attorneys for appellant

(Phillip A. LaPorta, of counsel and on the

brief).

Michael E. Pressman & Associates, attorneys

for respondent (Steve Byoun, of counsel and on

the brief).

PER CURIAM

This is a verbal threshold case resulting from a motor vehicle accident on April 29, 2002. Plaintiff Deanna Silver appeals from an order granting summary judgment to defendant. We conclude that when the evidence is viewed in the light most favorable to plaintiff, R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), she has made a prima facie showing of a permanent injury as defined in N.J.S.A. 39:6A-8(a). Therefore, we reverse.

Plaintiff relies upon certifications from Dr. Peter Berger and Dr. Rothman to establish that she sustained a permanent injury. The certifications of both physicians incorporate their narrative reports which make specific reference to MRI findings and electrodiagnostic studies. According to Dr. Berger, plaintiff's permanent injuries from the accident include the following:

Disc bulge C4-C5 and C5-C6.

Evidence of cervical nerve root injury.

Cervical segmental dysfunction.

Post traumatic cervical sprain/strain.

Lumbar disc bulge at L4-L5.

Lumbar segmental dysfunction.

Post traumatic lumbosacral sprain/strain.

Lumbar nerve root injury.

Similarly, Dr. Rothman concluded that plaintiff's injuries from the accident "include bilateral C4-C5 radiculopathies due to disc bulges at C4-5 and C5-6; bilateral L4-S1 radiculopathies, worse on the right, due to a disc bulge at L4-5." According to Dr. Rothman, there were a number of objective findings during his examination that were consistent with plaintiff's radiculopathies.

Prior to the decision in this case, we held that an accident victim had to demonstrate that an injury was "both permanent and serious to permit a plaintiff to cross the amended verbal threshold." James v. Torres, 354 N.J. Super. 586, 596 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003); accord Rios v. Szivos, 354 N.J. Super. 578, 580 (App. Div. 2002). The trial court relied on these cases in rendering its decision:

In the present case, the plaintiff contends that she sustained a permanent injury. To recover for such an injury the plaintiff must show that the plaintiff sustained a "permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. An injury shall be considered permanent when the body part or organ or both has not healed to function normally and will not heal to function normally with further medical treatment." New Jersey statutes annotated 39:6A-8.

Thus, a plaintiff, to prevail under AICRA, must prove the injuries "both permanent and serious," the [Rios] case at 596. Plaintiff must also prove that the injuries have had a serious impact upon the plaintiff's life, [James v. Torres, 354 N.J. Super. 586 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003)].

In the present case, the plaintiff's injuries essentially consist of disk bulges in the cervical area, alleged evidence of cervical nerve root injury, cervical segmental dysfunction, post-traumatic cervical sprain/strain, a lumbar disk bulge, a lumbar segmental dysfunction, post-traumatic lumbar sacral sprain/strain and lumbar nerve root injury.

No herniation was shown and no fractures were shown. These are essentially the type of relatively minor injuries, which are not sufficiently serious to meet the [tightened] standards under AICRA. The plaintiff has clearly not shown a serious and permanent injury. Within the [tightened] standards of AICRA, the Court need not reach the requirement of a serious impact on the plaintiff's life.

The defendant's motion is granted as to non-economic damages.

On June 14, 2005, the Supreme Court decided DiProspero v. Penn, 183 N.J. 477 (2005), and Serrano v. Serrano, 183 N.J. 508 (2005). DiProspero held that the plain language of N.J.S.A. 39:6A-8(a) does not contain a serious life impact standard. 183 N.J. at 506. Serrano held "that in order to recover noneconomic damages, an accident victim has to prove only an injury defined in N.J.S.A. 39:6A-8(a), and does not have to clear the additional hurdle of proving a 'serious injury.'" 183 N.J. at 510. In the consolidated cases of Beltran v. DeLima and Imerman v. Munoz, 379 N.J. Super. 169 (App. Div. 2005), we determined that the DiProspero and Serrano decisions should be afforded pipeline retroactivity. Thus, the issue is whether plaintiff has made a prima facie showing of a permanent injury.

In our view, if a jury were to find that Dr. Berger and Dr. Rothman are credible witnesses, it could reasonably find that plaintiff sustained permanent injuries as a result of the automobile accident on April 29, 2002. Accordingly, the evidence is not so one-sided that defendants are entitled to prevail as a matter of law. Brill, supra, 142 N.J. at 540.

 
Reversed and remanded for trial.

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A-5107-04T1

December 16, 2005