SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3542-01T1
OREST OSTASZ,
Plaintiff-Appellant,
v.
ERNEST M. HOWARD,
Defendant-Respondent,
and
JUST FOUR WHEELS, INC.,
Defendant.
___________________________________
Submitted: December 18, 2002 - Decided: January 21, 2003
Before Judges Kestin, Fall and Weissbard.
On appeal from the Superior Court of New
Jersey, Law Division, Civil Part, Atlantic
County, L-3901-00.
Perskie & Wallach, attorneys for appellant
(Frank A. Tomasello, Jr., on the brief).
Powell, Birchmeier & Powell, attorneys for
respondent (Edward N. Romanik, on the brief).
The opinion of the court was delivered by
KESTIN, P.J.A.D.
Plaintiff appeals from the trial court's March 11, 2002 order
granting the summary judgment motion of the remaining defendant,See footnote 1*
Ernest M. Howard, and dismissing the complaint with prejudice.
That order was entered, after an extended oral argument, for
reasons expressed by Judge Daryl F. Todd, Sr. in an oral opinion.
Judge Todd concluded that the requirements of Polk v. Daconceicao,
268 N.J. Super. 568 (App. Div. 1993), continue to govern verbal
threshold cases under the Automobile Insurance Cost Reduction Act
of 1998 (AICRA), L. 1998, c. 21, which amended this State's no-
fault automobile insurance laws, N.J.S.A. 39:6A-1 to -35; and that
"plaintiff ha[d] not provided the [required] comparative analysis
of [his] pre-existing injuries with the injuries sustained in the
automobile accident which is the basis of this lawsuit."
We are in substantial agreement with the underlying principle
of decision and with its application to the case at hand. We have
already ruled that the requirements and approaches of Oswin v.
Shaw,
129 N.J. 290 (1992), continue to govern the application of
verbal threshold standards under AICRA. See James v. Torres,
354 N.J. Super. 586, 590-96 (App. Div. 2002; see also Rios v. Szivos,
354 N.J. Super. 578, 580 (App. Div. 2002). The reasoning which
informed our opinions in James and Rios regarding the Legislature's
design applies to the question raised in this appeal, even more
compellingly given the nature of the precise issue before us
herein.
With the adoption of AICRA and its revised formulation of the
verbal threshold, it was logical that a plaintiff would
argue__notwithstanding the legislative statement that nothing
therein "was intended to repeal otherwise applicable case law,"
Statement, S.B. 3, 1
998 Leg. 208th Sess. (N.J. 1998)__that because
the verbal threshold had been substantively modified, the standards
for defining or determining the character of the qualifying injury
needed to be re-addressed as well. The same notion does not apply
to the comparative analysis requirement of Polk, however, because
that case dealt exclusively with process as distinguished from
substance. Nothing in the language or history of AICRA suggests a
legislative aim to modify the proof requirements for a verbal
threshold case. Indeed, the legislative statement quoted above
bespeaks a contrary intendment.
Affirmed.
Footnote: 1 * The complaint had been dismissed as to the other defendant, Just Four Wheels, Inc., via a stipulation of dismissal with prejudice filed on June 8, 2001.