DOLORES FERMIN et al. v. EVELYN F. ASCENCIO et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0542-04T50542-04T5

DOLORES FERMIN and

GILBERTO FERMIN, her husband,

Plaintiffs-Appellants,

v.

EVELYN F. ASCENCIO and

EVELYN F. MULLER,

Defendants-Respondents.

______________________________________

 

Argued September 28, 2005 - Decided January 10, 2006

Before Judges Wecker and Fuentes.

On appeal from Superior Court of

New Jersey, Law Division, Passaic

County, Docket No. PAS-L-2134-03.

Thomas L. Bell argued the cause for

appellants (Goldstein, Ballen, O'Rourke &

Wildstein, attorneys; Mr. Bell, on the

brief).

John P. Gillespie argued the cause for

respondents (Sherlock, Dougherty &

Zirulnik, attorneys; Mr. Gillespie,

on the brief).

PER CURIAM

Plaintiff Dolores Fermin appeals from the order of the Law Division dismissing her cause of action against defendants. The court granted defendants' motion for summary judgment based on plaintiff's failure to overcome the verbal threshold limitations of her automobile insurance policy. Specifically, the motion judge concluded that plaintiff did not establish, by objective medical evidence, that: (1) she sustained a permanent serious injury; (2) casually related to the automobile accident; and (3) that such injury has had a substantial impact on her life.

After reviewing the record, and in light of prevailing legal standards, we reverse and remand for further proceedings. This matter arises from an automobile accident which occurred on June 20, 2002. Plaintiff, who was fifty years old at the time, was driving her car in bumper-to-bumper traffic on Route 80, when defendant struck plaintiff's car from behind. Plaintiff got out of her car, inspected her vehicle, and did not exchange driver-information with defendant.

Five days after the accident, plaintiff consulted with a chiropractor complaining of lower back pain, radiating down both legs, and numbness and tingling in her hands and fingers. She received chiropractic treatment from June 25, 2002, through December 17, 2002. In a written report dated December 18, 2002, under the heading of past history, the chiropractor noted that plaintiff had "a previous accident but reports that she has been asymptomatic prior to and at the time of this accident." The chiropractor's final diagnosis was lumbar disc herniation, lumbar subluxation complex, sciatic radiculitis, and cervical sprain/strain.

Eight months after the accident, plaintiff consulted with an orthopedic surgeon, who diagnosed her as suffering from "severe cervicothoracic and lumbosacral sprain/strain with a reactive anxiety syndrome." A magnetic resonance imaging (MRI) study performed on September 5, 2002, noted "small disc herniations at L4-L5 and L5-S1" and "mild desiccation of the disc material."

Against this backdrop, the trial court applied the legal standard prevailing at the time, and found that plaintiff had failed to meet her burden of showing that, as a result of this car accident, she sustained a permanent serious injury that has had a substantial impact on her life. Before engaging in any analysis, we acknowledge that, since the trial court's ruling, the Supreme Court has made clear that the so-called substantial impact prong is not a part of the applicable legal standard. Plaintiff must prove only that she sustained a permanent injury that falls within the categories enumerated in N.J.S.A. 39:6A-8. DiProspero v. Penn, 183 N.J. 477, 506 (2005); Serrano v. Serrano, 183 N.J. 508, 518 (2005).

Here, as noted by the motion judge, there is no objective medical evidence that plaintiff's injuries are serious and permanent. The chiropractor's report is replete with generalized statements of what may happen to people, who have experienced injuries similar to the ones sustained by plaintiff, but notably devoid of clear language indicating that plaintiff's specific injuries are irreversible, serious, and proximately caused by the 2002 automobile accident.

 
We therefore remand this matter to the trial court to determine whether a rational jury can find that the injuries proximately caused by this accident fall within the category of a "permanent injury," as that term is used and applied by the Supreme Court in DiProspero and Serrano.

Reversed and remanded.

The reference to plaintiff incorporates Gilberto Fermin's per quod claims.

(continued)

(continued)

4

A-0542-04T5

January 10, 2006