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Ross v. Rubert

February 27, 2006

ROBERT ROSS, PLAINTIFF-APPELLANT,
v.
GARY E. RUPERT, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-324-03.

The opinion of the court was delivered by: Stern, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued February 1, 2006

Before Judges Stern, Fall and Grall.

Plaintiff appeals from an order entered on October 21, 2005, which denied plaintiff's "motion for relief from [an] order" pursuant to R. 4:50-1. Summary judgment had been entered on April 16, 2004, dismissing the complaint for failure to satisfy the "limitation on lawsuit" threshold (frequently called the "verbal threshold") under the Automobile Insurance Cost Reduction Act of 1998 ("AICRA"), N.J.S.A. 36:6A-1.1 to -35. See N.J.S.A. 39:6A-8(a). No appeal or timely motion for reconsideration was filed after summary judgment was entered. See R. 2:4-1(a); R. 4:49-2. However, on October 5, 2005, over seventeen months after summary judgment was granted,*fn1 plaintiff filed the "motion for relief" following the decision of the Supreme Court in DiProspero v. Penn, 183 N.J. 477, 506 (2005), which eliminated the requirement that a plaintiff must demonstrate a serious life impact to satisfy the verbal threshold. We accelerated the argument in this case to settle the question of whether DiProspero should be applied retroactively beyond the "pipeline" of cases that were pending when it was decided. See Beltran v. Delima, 379 N.J. Super. 169, 173 (App. Div. 2005) (applying "pipeline retroactivity" to DiProspero). See also, e.g., Juarez v. J.A. Salerno & Sons, 185 N.J. 332 (2005) (applying DiProspero and Serrano v. Serrano, 183 N.J. 508 (2005), to an appeal pending when those opinions were filed); orders on petitions for certification, 185 N.J. at 23-29 (2005); Pungitore v. Brown, 379 N.J. Super. 165 (App. Div. 2005). We now affirm.

Plaintiff argues that:

The Supreme Court has unambiguously ruled that the serious life impact standard no longer applies and that a plaintiff need only prove an enumerated injury was suffered and this ruling should apply retroactively to all claims subject to the verbal threshold of the Automobile Insurance Cost Reduction Act that were dismissed for failure to meet this standard.

In essence, plaintiff asks us to extend Beltran and give retroactivity "to all cases filed under [AICRA] that were dismissed for failure to meet the serious life impact standard."

In James v. Torres, 354 N.J. Super. 586, 596 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003), we held that the serious life impact requirement developed in Oswin v. Shaw, 129 N.J. 290, 317-19 (1992), survived the passage of AICRA and was implicitly incorporated within it for purposes of evaluating a summary judgment motion in a verbal threshold case. The Supreme Court's denial of certification in James, although "not a disposition on the merits[,]" "suggested to some the Supreme Court's concurrence in the view we expressed in that case . . . ." Beltran, supra, 379 N.J. Super. at 172.

On June 14, 2005, the Supreme Court "resolved [the] longstanding controversy over the proper interpretation of N.J.S.A. 39:6A-8a." Beltran, supra, 379 N.J. Super. at 171. In DiProspero, supra, 183 N.J. at 506, the Supreme Court overruled James and held that "[n]othing 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." See also Serrano v. Serrano, supra, 183 N.J. at 509-10, 514-16 (companion case). Thus, the Supreme Court held that to survive summary judgment under the verbal threshold in an action for non-economic damages, a plaintiff only had to prove that he or she suffered from one of the six bodily injuries set forth in N.J.S.A. 39:6A-8(a). Ibid. DiProspero, supra, 183 N.J. at 506; Serrano, supra, 183 N.J. at 510.

Thereafter, in Beltran, supra, 379 N.J. Super. at 176-77, we concluded that DiProspero and Serrano were "applicable to all prejudgment matters pending in the trial courts and to those matters that [were] on direct appeal" at the time they were decided. We expressly declined to consider "whether to give the new rule complete retroactive effect, applying it to all cases, even if final judgments have been entered and avenues of direct appeal have been exhausted[,]" since this issue had not been presented. Id. at 174 n.1.

In reaching our decision to give DiProspero "pipeline retroactivity," we noted that the Supreme Court had "established a new rule of law as to which retroactivity analysis is appropriate . . . ." Id. at 173 (citations omitted). We addressed the policy considerations relevant to the retroactivity of "a new rule of law," and found it "difficult to fault those who relied upon James as setting forth the proper interpretation of the limitation on lawsuit provisions of N.J.S.A. 39:6A-8a, particularly after certification was denied to that decision." Id. at 174. Moreover, we concluded that "[i]t would be unfair not to accord the Supreme Court's newly-announced rule" limited retroactivity to cases other than DiProspero and Serrano that had launched similar "challenges to the utilization of the Oswin model and the interpretation of Oswin's precepts [which] remain pending, simply because they did not constitute the vehicle for the Supreme Court's decision." Id. at 175.

On the other hand, we acknowledged "the tsunami effect that retroactive application of DiProspero and Serrano may have on the administration of justice," including the possibility of "overwhelm[ing] the calendars of the trial courts" and creating "a substantial backlog in matters to be tried . . . ." Id. at 176. We also recognized that this was an issue for the Legislature "to consider when pondering ...


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