Beltran v. DeLimaBeltran v. DeLima
PAYNE, J.A.D.
On June 14, 2005, the New Jersey Supreme Court decided DiProspero v. Penn, 183 N.J. 477, 874 A.2d 1039 (2005), and Serrano v. Serrano, 183 N.J. 508, 874 A.2d 1058 (2005), and by doing so, resolved a longstanding controversy over the proper interpretation of
sustained a bodily injury which results in death; dismemberment; significant disfigurement or significant scarring;
displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. [
N.J.S.A. 39:6A-8a .]
It states further that:
An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment.
[
Id. ]
In order for this tort option provision of the Act to be satisfied, the statute requires, within a specified time frame, that the plaintiff provide defendant with a physician‘s certification, given under penalty of perjury, that objective clinical evidence demonstrates that the plaintiff has sustained a permanent injury of the type specified in the statute.
Prior to the passage of AICRA, an analogous “verbal threshold” provision contained in the 1988 New Jersey Automobile Reparation Reform Act had been interpreted by the Supreme Court in Oswin v. Shaw, 129 N.J. 290, 318, 609 A.2d 415 (1992) to require evidence that the plaintiff‘s injury fit within one of the categories described in that earlier statute, and also that the plaintiff had suffered a serious life impact as the result of the injury. Following AICRA‘s passage, members of the bar challenged the continued viability of the two-pronged Oswin analysis, arguing that its adoption was not reflected in the language or intent of the new limitation on lawsuit provision.
In James v. Torres, 354 N.J.Super. 586, 588, 808 A.2d 873 (App.Div.2002), after consideration of contrary arguments, we found that the serious impact requirement of Oswin survived the passage of AICRA and was implicitly incorporated within it. See also Rios v. Szivos, 354 N.J.Super. 578, 580, 808 A.2d 868 (App.Div.2002). Although the denial of certification in James, 175 N.J. 547, 816 A.2d 1049 (2003), suggested to some the Supreme Court‘s concurrence in the view we expressed in that case, it was not a disposition on the merits. Moreover, challenges to our interpretation persisted, which were reflected in subsequent decisions in our court, including the dissent of Judge Weissbard that led to the appeal in DiProspero. See DiProspero v. Penn, 2004 WL 439350, *3 (App.Div.2004). See also Compere v. Collins, 352 N.J.Super. 200, 799 A.2d 721 (Law Div.2002), upon which Judge Weissbard relied.
Justice Albin, writing for the Court in both DiProspero and Serrano, rejected our interpretation of AICRA, finding that “nothing in AICRA‘s preamble, its legislative history, or its policy objectives suggests that the Legislature intended this Court to write in [a serious life impact] standard.” DiProspero, supra, 183 N.J. at 506, 874 A.2d 1039. See also Serrano, supra, 183 N.J. at 514-16, 874 A.2d 1058.
In implementing the Supreme Court‘s decisions, we have now reviewed a number of appeals pending in this court for the purpose of determining whether summary orders remanding the cases for trial in light of DiProspero and Serrano should be entered. Our review has raised the issue of the retroactivity of the Supreme Court‘s decisions and, in turn, prompted our request that the issue be argued before us. Those arguments have taken place separately in the two appeals that are the subjects of this opinion, which we have consolidated for the limited purpose of addressing the issue. We stress that our focus is solely upon cases on appeal from final judgments that are now pending before us. We have not considered whether DiProspero and Serrano should be applied to cases that have been disposed of and are no longer pending in the trial
Although as we have stated, we find the Court‘s decisions in DiProspero and Serrano to have been foreshadowed from the outset as the result of the dispute as to Oswin‘s applicability to AICRA that arose almost immediately upon that statute‘s passage, the Supreme Court‘s decisions undeniably mark a departure from our contrary opinion in James—a decision that has been widely followed by trial judges and by us. For that reason, we find the Supreme Court to have established a new rule of law as to which retroactivity analysis is appropriate. Frazier v. New Jersey Mfrs. Ins. Co., 142 N.J. 590, 606, 667 A.2d 670 (1995); State v. Burstein, 85 N.J. 394, 403, 427 A.2d 525 (1981) (if principle of law is not new, a retroactivity analysis is not required).
Such analyses often commence with the statement that “[g]enerally, judicial decisions are applied retroactively to all civil matters that have not reached final judgment.” Henderson v. Camden Cty. Municipal Utility Auth., 176 N.J. 554, 561, 826 A.2d 615 (2003); Frazier, supra, 142 N.J. at 606, 667 A.2d 670; Chase Manhattan Bank v. Josephson, 135 N.J. 209, 235, 638 A.2d 1301 (1994); County of Essex v. Waldman, 244 N.J.Super. 647, 662, 583 A.2d 384 (App.Div.1990), certif. denied, 126 N.J. 332, 598 A.2d 890 (1991). However, that principle is neither unqualified nor universally applicable, and for that reason, we must consider whether, in the context of AICRA and our resolution of presently pending appeals concerning its interpretation, it is appropriate to apply the rule of DiProspero and Serrano purely prospectively, only to future cases and the two matters in which the rule was announced or, in addition to the foregoing, to all matters in which avenues of direct review have not been exhausted.1 See Burstein, supra, 85 N.J. at 402-03, 427 A.2d 525 (enumerating approaches).
Which of these approaches is taken depends largely on “the court‘s view of what is just and consonant with public policy in the particular situation presented.” State v. Nash, 64 N.J. 464, 469, 317 A.2d 689 (1974). Most frequently “a weighing of the various policies involved [has] called for retrospectivity,” Darrow v. Hanover Twp., 58 N.J. 410, 413-14, 278 A.2d 200 (1971). Consequently, retrospectivity is acknowledged to be the “traditional” rule, see, e.g., Mirza v. Filmore Corp., 92 N.J. 390, 396, 456 A.2d 518 (1983)....
[Coons v. American Honda Motor Co., Inc., 96 N.J. 419, 425, 476 A.2d 763 (1984), cert. denied, 469 U.S. 1123, 105 S.Ct. 808, 83 L.Ed.2d 800 (1985) (Coons II).]
The policy considerations relevant to a retroactivity analysis commonly include whether there has been (1) “justifiable reliance by the parties and the community as a whole on prior decisions,” (2) whether the purpose of the new rule will be advanced by retroactive application, and (3) any adverse effect retrospectivity may have on the administration of justice. Id. at 426, 476 A.2d 763. See also Frazier, supra, 142 N.J. at 606, 667 A.2d 670.
We view the balance of these policy factors as tipping toward a finding of pipeline retroactivity in cases involving the interpretation of
Moreover, we note AICRA‘s remedial purpose. “AICRA was a comprehensive legislative package with a multi-pronged approach aimed at achieving the goals of containing costs, rooting out fraud within the system, and ensuring a fair rate of return for insurers.” DiProspero, supra, 183 N.J. at 488, 874 A.2d 1039 (citing
We are mindful of the tsunami effect that retroactive application of DiProspero
It was the Legislature‘s duty to decide what degree of cost savings should be achieved through specific restrictions on the right to sue. In enacting the limitation on lawsuit threshold, it crafted a statute that defined when an accident victim could sue for pain and suffering damages. We should not interfere with the policy choices made by the Legislature. It may be true that there would be fewer successful claims if we were to impose a serious life impact standard on top of the statutory requirements. However, if the Legislature intended that accident victims should have a more difficult hurdle in obtaining a recovery, then it must draft a statute that accomplishes that end. We will not write that statute.
For these reasons, we apply pipeline retroactivity to DiProspero and Serrano, holding those decisions applicable to all prejudgment matters pending in the trial courts and to those matters that are on direct appeal. Cf. State v. Cummings, 184 N.J. 84, 96-100, 875 A.2d 906 (2005).
We therefore turn to the merits of the appeals before us. In Imerman v. Munoz, a vehicle driven by plaintiff Judith Imerman, a woman in her seventies, was struck on January 9, 2001 by a vehicle driven by Alice Munoz, who allegedly failed to stop at a red light. Imerman claims that as the result of the accident she sustained herniated discs at L2-3, L4-5 and L5-S1, with lumbar radiculopathy at the L4 and L5-S1 nerve roots, intractable back pain, and carpal tunnel syndrome in both wrists, one of which was surgically treated. Although Imerman had been involved in two prior accidents and suffered from orthopedic and neurological conditions associated with aging, including degenerative disc disease and osteoporosis, her treating physicians4 concluded that, at the time of the accident, she was asymptomatic, and that the accident had caused the manifestation of the objective injuries about which Imerman presently complains.
In ruling in Munoz‘s favor on the motion for summary judgment filed by Munoz based on Imerman‘s failure to meet the requirements of
In Beltran v. DeLima, the car driven by plaintiff Maria Beltran was allegedly struck in the rear on May 15, 2001 as the result of a chain reaction instituted by a vehicle operated by defendant Reginald G. DeLima and owned by defendant Maria Morais. Plaintiff claims that as a result of the accident she sustained a herniated disc at L1-L2, and she offered evidence that suggested the injury was causally related to her accident and was permanent. However, when considering DeLima‘s motion for summary judgment based on Beltran‘s failure to meet the requirements of
For the reasons that we have expressed previously, summary judgment in Beltran, too, is reversed and the matter is remanded. However, upon remand, we direct that the motion judge hold further argument to determine the sufficiency of Beltran‘s proofs on the issue of permanent injury.
The orders of summary judgment in Beltran v. Delima and Imerman v. Munoz are reversed, and the matters are remanded for further proceedings in light of this opinion.