OLGA SANTANA v. MARIE A. NESTO, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4737-04T14737-04T1

OLGA SANTANA,

Plaintiff-Appellant,

v.

MARIE A. NESTO and ROBERTO F.

NESTO,

Defendants-Respondents.

__________________________________________________

 

Submitted December 19, 2005 - Decided

Before Judges A.A. Rodr guez and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. ESX-L-1364-04.

Law Offices of Stanley Marcus, attorneys for appellant (John N. Holly, on the brief).

Soriano, Henkel, Biehl & Matthews, attorneys for respondents (Peter DeSalvo, Jr., on the brief).

PER CURIAM

Plaintiff filed a complaint on February 20, 2004 alleging she suffered personal injuries resulting from an automobile accident in Newark on August 3, 2002. She claims that this accident was caused by defendant Marie Nesto's negligent operation of a motor vehicle owned by defendant Roberto Nesto. Summary judgment was entered on April 1, 2005 in favor of defendants based upon plaintiff's purported failure to vault the verbal threshold. Plaintiff appeals the dismissal of her complaint.

Plaintiff's claim is governed by the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-8, the Legislature's most recent attempt to eliminate "suits for injuries which are not serious or permanent," N.J.S.A. 39:6A-1.1. Prior to a number of decisions rendered while this matter was on appeal, it was understood AICRA required that, in order to defeat summary judgment, a plaintiff must present evidence of one of the types of injuries delineated in AICRA and that such injuries also had a serious impact on plaintiff's life. See James v. Torres, 354 N.J. Super. 586 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003).

In granting summary judgment, the judge appears to have applied the James approach, a conclusion we discern by considering the only statement the judge offered in granting summary judgment -- a provision handwritten on the bottom of the April 1, 2005 order:

[Plaintiff has presented] [n]o objective evidence of a permanent injury and plaintiff [has] not demonstrate[d] a serious impact on her lifestyle except [for an] inability to eat certain food and dance [with] heels.

On June 14, 2005, while this matter was on appeal, the Supreme Court decided DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005). In those decisions, the Court significantly altered the existing legal landscape and concluded that the Legislature did not intend that plaintiffs should meet the "serious impact" prong of the Oswin test when attempting to meet the requirements of AICRA's verbal threshold. In light of DiProspero and Serrano, we conclude that the determination that plaintiff's life was not seriously impacted cannot support the order of summary judgment.

As for the question of whether plaintiff asserted an injury of a type described by the Legislature in N.J.S.A. 39:6A-8, we observe that plaintiff's treating physician provided a certification which asserted that plaintiff sustained, as a result of the accident, "post traumatic cephalgia, cervical strain and sprain, disc bulge at the C5-6 level, bilateral temporomandibular joint syndrome, right carpal tunnel syndrome, contusion of both knees and legs and sprain of the right ankle." The physician also asserted that within "a reasonable degree of medical probability, said injuries . . . are permanent in nature in that they have not healed to function normally and will not heal to function normally with further medical treatment." The record also indicates that the disc bulge referred to in the physician's certification was based upon the objective evidence provided by an MRI.

In response to this, defendants asserted that plaintiff was required but did not demonstrate that these injuries were "sufficiently serious." This contention is insufficient in law. An AICRA plaintiff is not obligated to demonstrate that an injury is serious because, as the Supreme Court has stated, "the Legislature considered the injuries defined in N.J.S.A. 39:6A-8(a) to be serious by their very nature." Serrano, supra, 183 N.J. at 510. Only last month, the Court emphasized this point by reversing our decision in Juarez v. J.A. Salerno & Sons, Inc., 379 N.J. Super. 91 (App. Div. 2005) and holding that we "apparently misread" its earlier decisions by "superimpos[ing], perhaps inadvertently, the same serious injury standard . . . disapproved of in Serrano." Juarez v. J.A. Salerno & Sons, Inc., __ N.J. __, __ (2005).

In short, as the Court's recent decisions demonstrate, a plaintiff whose claim is governed by the verbal threshold presently contained in AICRA is obligated only to allege, through appropriate proofs and objective medical evidence, an injury proximately caused by the accident in question of any of the types delineated in N.J.S.A. 39:6A-8(a). Plaintiff asserted, by way of her physician's certification, that she sustained, among other things, a disc bulge at C5-6, which was further supported by what was revealed in an MRI. The physician also asserted, in the words of the statute, that this was a permanent injury which "has not healed to function normally and will not heal to function normally without further medical treatment." Ibid. Accordingly, we are satisfied that plaintiff presented sufficient proof to defeat summary judgment.

 
Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

We assume that the trial judge did not render an oral decision because the parties have not provided a transcript of any such decision and because the judge's order of April 1, 2005 does not indicate that the basis for the decision is set forth in an oral decision or some other written decision.

Oswin v. Shaw, 129 N.J. 290 (1992).

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A-4737-04T1

 

January 5, 2006