JEFFREY A. MURPHY v. MICHAEL V. NAOMI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0745-04T30745-04T3

JEFFREY A. MURPHY,

Plaintiff-Appellant,

v.

MICHAEL V. NAOMI,

Defendant-Respondent.

____________________________

 

Argued November 1, 2005 - Decided April 26, 2006

Before Judges Collester and S.L. Reisner.

On appeal from Superior Court of New Jersey,

Law Division, Morris County, L-3259-00.

Anthony V. Locascio argued the cause for appellant

(Gold, Albanese, Barletti & Velazquez, attorneys;

Robert Francis Gold, of counsel; Mr. Gold and

Deyanira Roque, on the brief).

Joseph E. Kelley argued the cause for respondent

(Maloof, Lebowitz, Connahan & Oleske, attorneys;

Mr. Kelly, of counsel; Mr. Kelley and Robert

Brigantic, on the brief).

PER CURIAM

Plaintiff Jeffrey A. Murphy appeals from the denial of a new trial following a jury verdict of no cause for action based upon a jury finding that plaintiff did not "sustain a permanent injury as a result of the accident that has had a serious impact on his life." The case arises out of an automobile accident on December 26, 1999, when plaintiff's car was struck by a vehicle operated by the defendant, Michael V. Naomi, at the intersection of County Road 517 and Route 206 south in Andover, New Jersey. Plaintiff produced evidence that as a result of the accident he suffered permanent injuries including a chronic sprained neck, a herniated disk in the neck, limited motion of the low back, and abnormal sensation from the back of his thighs down the inner side of his leg to the sole of his foot. He also alleged a permanent injury to the ligaments and muscular structure around the spine and nerve tissue within the spine, which caused pain and numbing in his legs.

While liability was admitted, the permanency of plaintiff's injuries was the subject of disputed expert medical testimony. After both sides rested, defendant moved for dismissal of the complaint on grounds that plaintiff had not met the verbal threshold under New Jersey's no fault law. N.J.S.A. 39:6A-8(a). The trial judge denied the motion, but submitted the issue to the jury over plaintiff's objection and instructed the jury as follows:

Now in New Jersey we have some laws that limit recovery in this type of a lawsuit. In order to recover damages in this case, the plaintiff must prove by a preponderance of the evidence that he sustained injuries which caused -- which were permanent injuries within a reasonable degree of medical probability. If the injuries

caused by the accident are not permanent or

is not permanent your verdict should be for

the defendant. If the injuries caused by the accident are permanent, then your verdict should be for the plaintiff.

Now permanent injury is when any body part

or organ or both has not healed to function

normally and will not heal to function

normally with further medical attention.

In addition to proving an injury and

permanency the plaintiff must also prove

that the injury has had a serious impact

on his life. This means that the plaintiff must prove that the injury has seriously affected one or more activities which were a significant and important component of the plaintiff's way of life. In other words, the injury must be such that the plaintiff is no longer able to attend to his regular routine activities whatever they may be. He must be deprived of the physical ability to engage in a social or recreational activity or work activity which had previously been important to his way

of life. (Emphasis supplied.)

The jury verdict form contained the following interrogatory:

Has the plaintiff sustained a permanent

injury as a result of the accident that has had a serious impact on his life?

The jury's verdict gave a unanimous negative response to the question, and a verdict of no cause of action was entered. The trial judge later denied plaintiff's new trial motion.

The jury instruction and interrogatory were consistent with the law as it existed at the time of trial. See James v. Torres, 354 N.J. Super. 586, 588 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003), and Rios v. Szivos, 354 N.J. Super. 578, 580 (App. Div. 2002). However, while this appeal was pending, the Supreme Court decided DiProspero v. Penn, 183 N.J. 477 (2005), which held that under the amendment to the no fault law, known as the Automobile Insurance Cost Reduction Act, the serious life impact standard was eliminated. Since both the jury instruction and the jury interrogatory related in part to the significant life impact test, DiProspero mandates we reverse and remand for a new trial. See also Serrano v. Serrano, 183 N.J. 508, 509-10 (2005).

Reversed and remanded.

 

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A-0745-04T3

April 26, 2006