RICHARD STEFANO et al. v. CHRIS STEFANO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4549-04T54549-04T5

RICHARD STEFANO and

CHRIS STEFANO,

Plaintiffs-Appellants,

v.

JENNIFER SZALAY and

CATHERINE SZALAY,

Defendants-Respondents,

and

PATRICIA HOLLAND and NOLIN

AUTO SALES, INC.,

Defendants.

______________________________

 

Submitted February 7, 2006 - Decided February 17, 2006

Before Judges Hoens and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Burlington

County, L-3078-03.

Vincent J. Ciecka and Associates,

attorneys for appellants (Joseph E.

Kerry, of counsel and on the brief).

Parker McCay, attorneys for respondents

(J. Brooks DiDonato, of counsel and

Stacy L. Moore, Jr., on the brief).

PER CURIAM

This is an appeal by plaintiff, Richard Stefano, from a summary judgment dismissing his complaint for damages resulting from a November 21, 2001, motor vehicle accident. We reverse.

At the time of the accident, plaintiff was subject to the "limitation on lawsuit" threshold contained in N.J.S.A. 39:6A-8a. After an answer had been filed and discovery exchanged, defendants sought summary judgment dismissing the complaint, asserting a failure to cross the threshold. 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), certif. denied, 175 N.J. 547 (2003), holding that the adoption of the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-1.1 to -35, 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 the accident resulted in injuries having a significant impact on his life. She ultimately concluded that "it appears to me that limitations on his life are not sufficiently serious to meet that second prong at this point." Accordingly, she dismissed the complaint. After that dismissal, the Supreme Court decided DiProspero v. Penn, 183 N.J. 477 (2005), and Serrano v. Serrano, 183 N.J. 508 (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. Because the complaint was dismissed for failure of plaintiff to provide proofs that are no longer necessary, the dismissal must be reversed and the matter remanded to the trial court.

Defendants resist this result. They premise their resistance on a recognition that plaintiff seeks to recover by demonstrating a "permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement" and that plaintiff must demonstrate that injury by "objective clinical evidence." N.J.S.A. 39:6A-8a. Defendants argue that the judge did not address plaintiff's proofs with regard to this requirement and ask us to exercise our original jurisdiction, pursuant to R. 2:10-5, to evaluate the proofs. We decline to do so.

Although the focus of the arguments before the motion judge was the "subjective prong," she had considered the evidence of a permanent injury in her preliminary opinion, dated February 18, 2005. In that opinion, she reviewed the conflicting evidence respecting plaintiff's injuries and concluded that plaintiff's proofs were sufficient to withstand the motion insofar as it addressed the first prong. On a motion for reconsideration, she repeated that her "view was the first prong was met." It appears that the trial court considered the submissions and resolved this issue against defendants. On remand, however, defendants may choose to seek clarification, by motion for reconsideration, of the judge's determination of this issue. Defendants also argue that, despite DiProspero and Serrano, a plaintiff claiming a permanent injury must also demonstrate that the injury is serious. That argument is no longer viable. Juarez v. J. A. Salerno & Sons, Inc., 185 N.J. 332 (2005).

 
Reversed and remanded.

Plaintiff's wife, plaintiff Chris Stefano, also appeals from the summary judgment dismissing her derivative per quod action. Because her appeal is governed by the result of her husband's appeal, we refer only to plaintiff Richard Stefano in this opinion.

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A-4549-04T5

February 17, 2006