LINDA CALISE v. CAROL DEMPSEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4233-04T54233-04T5

LINDA CALISE,

Plaintiff-Appellant,

v.

CAROL DEMPSEY,

Defendant-Respondent.

__________________________________________

 

Submitted: September 13, 2006- Decided October 2, 2006

Before Judges Fuentes and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1552-04.

Thomas A. Sarlo, attorney for appellant.

Methfessel & Werbel, attorneys for respondent (Alan K. Albert, on the brief).

PER CURIAM

Plaintiff, Linda Calise, appeals the grant of summary judgment dismissing her complaint for failure to meet the requirements of the so-called "verbal threshold," N.J.S.A. 39:6A-8a. For the reasons set forth below, we reverse the grant of summary judgment and reinstate plaintiff's complaint.

In reviewing a lower court's grant of summary judgment, we employ the same standard as the motion judge. Atlantic Mutual Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div. 2006). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). As articulated in Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995),

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

However,

If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a "genuine" issue of material fact for purposes of Rule 4:46-2. . . . [W]hen the evidence "is so one-sided that one party must prevail as a matter of law," the trial court should not hesitate to grant summary judgment.

[Ibid., (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).]

Here, the motion judge applied the appropriate standards and assumed the following facts in a light most favorable to plaintiff.

Plaintiff was the operator of a motor vehicle involved in a collision with a vehicle operated by defendant, Carol Dempsey, on March 8, 2003. At the time of the accident, plaintiff's insurance policy limited her right to sue for non-economic damages unless she suffered an injury that fit within one of the categories of injuries set forth in N.J.S.A. 39:6A-8a. Immediately after the accident, plaintiff was treated and released from the Clara Maas Hospital emergency room. Later that month, plaintiff sought chiropractic treatment for complaints of headaches, cervical pain radiating into her right arm and lumbar pain radiating into both legs. Initial physical examination revealed muscle spasms and restrictions on her range of motion throughout the cervical and lumbar spine.

Diagnostic tests were also performed. MRI's were taken of her cervical and lumbar spine. These revealed positive findings of disc bulges at C5-C6 and L5-S1, and annular tears at L3-L4 and L4-L5. Electrodiagnostic testing revealed bilateral radiculopathy at L5-S1. During the ensuing course of treatment, plaintiff received three epidural injections in her lumbar spine. Her doctor opined that these injuries were causally related to the motor vehicle accident and were permanent. Plaintiff also claimed these injuries seriously impacted her life. She was no longer able to drive long distances without having to stop and stretch. Her periods of sleep were interrupted, and, because of her inability to bend without pain, she lost extra income she earned by cleaning her in-laws' house on a weekly basis.

The motion judge conducted his analysis in accordance with Oswin v. Shaw, 129 N.J. 290 (1992), Rios v. Szivos, 354 N.J. Super. 578 (App. Div. 2002), and James v. Torres, 354 N.J. Super. 586 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003). He concluded that plaintiff had not suffered a "serious impact upon her life" as a result of the injuries caused by the accident. James, supra, 354 N.J. Super. at 596. He further concluded that the injuries themselves were not "permanent and serious." Ibid. See also, Rios, supra, 354 N.J. Super. at 580.

While this appeal was pending, our Supreme Court decided DiProspero v. Penn, 183 N.J. 477 (2005), and Serrano v. Serrano, 183 N.J. 508 (2005). In DiProspero, the Court concluded that a plaintiff who demonstrates a permanent injury, as defined by the statute, need not also demonstrate that the injury caused a serious impact upon her life. 183 N.J. at 505-06. In Serrano, the Court held, "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 Beltran v. DeLima, 379 N.J. Super. 169 (App. Div. 2005), we concluded that the holdings of DiProspero and Serrano would apply to "all prejudgment matters pending in the trial courts and to those matters that are on direct appeal." Id. at 176-77. This matter was on direct appeal at the time. Thus, the standards applied by the motion judge to determine whether plaintiff had met her burden for purposes of defeating summary judgment are no longer viable in light of the subsequent holdings of DiProspero and Serrano. We are thus compelled to reverse.

Lastly, defendant argues that plaintiff's complaint should be dismissed nonetheless because plaintiff failed to file a certificate of permanency required by N.J.S.A. 39:6A-8a. Citing Casinelli v. Manglapus, 181 N.J. 354, 365-66 (2004), defendant argues that plaintiff's failure to file the certificate, as opposed to filing it late, should result in dismissal of her complaint with prejudice. This issue was never raised below. We decline to address it now and remand consideration of the issue to the trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

The order granting summary judgment is reversed. Plaintiff's complaint is reinstated for further proceedings consistent with this opinion.

 

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A-4233-04T5

October 2, 2006