MAUREEN MURPHY v. PATRICK R. MASON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4925-04T54925-04T5

MAUREEN MURPHY,

Plaintiff-Appellant,

v.

PATRICK R. MASON,

Defendant-Respondent.

________________________________________________

 

Submitted January 30, 2006 - Decided February 7, 2006

Before Judges C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3892-01.

Stark & Stark, attorneys for appellant (Michael H. Foster, of counsel and on the brief).

Cooper, Levenson, April, Niedelman & Wagen-heim, attorneys for respondent (Gerard W. Quinn, on the brief).

PER CURIAM

Plaintiff filed a complaint on December 26, 2001 alleging she suffered personal injuries resulting from an automobile accident in Burlington Township on June 28, 2000. She claims that this accident was caused by defendant Patrick Mason's negligent operation of his motor vehicle. Summary judgment in favor of defendant, based upon plaintiff's purported failure to vault the verbal threshold, was entered on April 1, 2005. Plaintiff appeals the dismissal of his complaint.

Plaintiff's claim is governed by the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-8(b), 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 that AICRA required that to avoid summary judgment a plaintiff must present evidence of an injury of a type delineated in AICRA that was permanent and 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).

On June 14, 2005, while this matter was on appeal, our 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. The Court also held that an AICRA plaintiff is not obligated to demonstrate that an injury is serious because, as the Court 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. Even more recently, the Court again emphasized this point, holding in Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332 (2005), reversing, 379 N.J. Super. 91 (App. Div. 2005), that we "apparently misread" its earlier decisions by "superimpos[ing], perhaps inadvertently, the same serious injury standard . . . disapproved of in Serrano." 185 N.J. at 334. Instead, the Court again emphasized that a plaintiff need not show that an injury is "sufficiently serious," as we stated in our decision in Juarez, supra, 379 N.J. Super. at 94, but "need only prove that her injuries satisfy one of the threshold categories in AICRA," and when invoking the permanent injury category of N.J.S.A. 39:6A-8, "plaintiff was required only to prove by objective credible evidence that she suffered a permanent injury," 185 N.J. at 334. In short, plaintiff must demonstrate with objective evidence "a permanent injury within a reasonable degree of medical certainty," N.J.S.A. 39:6A-8(a), and is not required to show both a permanent and serious injury in order to meet the requirements of the verbal threshold.

Against the backdrop of these recent holdings, we consider whether the summary judgment in this matter should remain standing. In granting summary judgment, the trial judge observed that plaintiff's expert had interpreted an EMG as revealing lumbar radiculopathy, and that the expert had also determined the presence of spasms during a physical examination. Despite the assertion of plaintiff's expert that the injuries were permanent, the judge concluded that the injuries alleged were not sufficiently serious to permit the claim to pass through the verbal threshold.

Although the judge may have accurately analyzed the claim based upon the law as understand at the time the judge granted summary judgment, our Supreme Court's recent decision in Juarez unequivocally declares that the critical question is whether plaintiff has alleged one of the types of injuries described in the statute, such as a permanent injury, and that the existence of this injury is supported by credible, objective evidence. The statute, as so interpreted, does not permit a court to dismiss a claim based upon a finding that such an injury is not serious. Accordingly, the judge's determination that plaintiff's injury was not shown to be serious constituted an insufficient reason for the entry of summary judgment in favor of defendant.

Reversed and remanded. We do not retain jurisdiction.

 

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

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A-4925-04T5

February 7, 2006