On appeal from the Superior Court of New Jersey, Law Division, Essex County, ESX-L-11707-02 (A-6056-03T2) and from the Superior Court of New Jersey, Law Division, Ocean County, OCN-L-3874-02 (A-6673-03T1).
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Argued telephonically June 29, 2005 (A-6673-03T1) and June 30, 2005 (A-6056-03T2)
Before Judges Stern, Cuff and Payne
On June 14, 2005, the New Jersey Supreme Court decided DiProspero v. Penn, ___ N.J. ___ (2005), and Serrano v. Serrano, ___ N.J. ___ (2005), and by doing so, resolved a longstanding controversy over the proper interpretation of N.J.S.A. 39:6A-8a, a provision of the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, that governs the right to recovery for non-economic losses of those to whom the "limitation on lawsuit" threshold set forth in that subsection of the Act applies.
The statute requires as a condition of recovery that the injured claimant have 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.]
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. Id.
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 (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 (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 (App. Div. 2002). Although the denial of certification in James, 175 N.J. 547 (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 (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, ___ N.J. at ...