August 2005, No. 1

August 2005, Vol. V, No. 1

UIM or no UIM, that is the question? Here are the facts: Passenger was in a car with $100,000 in both liability and UIM coverage, and the car had an accident with a car with $15,000 in liability coverage. Passenger settled with the other car for $15,000 with host vehicle's insurer's consent. At mandatory arbitration, the arbitrator determined that damages were $65,000, and that each defendant was 50% at fault. Plaintiff accepted $32,500 from host vehicle's liability policy. The question is can he recover $17,500 from host's UIM policy claiming that other driver was underinsured? Some of you might be thinking no because the host vehicle's liability coverage exceeded plaintiff's damages. You, like the trial court, would be wrong. In reversing, the Appellate Division found that N.J.S.A. 17:28-1.1(e) requires courts to consider each defendant's insurance policy and level of fault. See Carrasco v. Palma, 377 N.J. Super. 579 (App. Div. 2005). The panel then held that the other driver was underinsured because plaintiff could not collect the entire amount of damages that the other driver owed him. This ruling is based on the fundamental principle of UIM coverage, i.e., to protect accident victims against losses due to underinsured tortfeasors. An interesting twist in this case is that if the host vehicle was found more than 60% at fault, UIM coverage would not have kicked in because the host vehicle would be responsible for all of the damages under the Comparative Negligence Act, N.J.S.A. 2A:15-5.3.

Does a permanent injury satisfy the verbal threshold? Yes. In DiProspero v. Penn, 183 N.J. 477 (2005), the Supreme Court ruled that when the legislature enacted AICRA in 1998, it did not include serious impact as an element of the verbal threshold. Therefore, a plaintiff may be awarded damages for pain and suffering if he meets one of the six categories of injuries in N.J.S.A. 39:6A-8a. One such category is permanent injury, which is defined as an injury that has not healed with treatment and will not heal with additional medical treatment. Until this decision, the courts have ruled that permanent injuries must also have a serious impact on life. This requirement has resulted in motions for summary judgments and onerous instructions on the law that favored defendants. In a companion case, Serrano v. Serrano, 183 N.J. 508 (2005), the Supremes also reversed the Appellate Division's ruling that required a plaintiff with the verbal threshold to prove that she suffered a "serious injury.; Once again, the Supreme Court explained that it would not substitute its judgment for the Legislature's and that AICRA was clearly written.

Can you get a deposition of a party in the Special Civil Part? For those of you who said no because the Rules of Court do not permit it, you would be wrong. In Kellam v. Feliciano, 376 N.J. Super. 580 (App. Div. 2005), the Appellate Division ruled that in personal injury cases, defendants may take the deposition of a plaintiff and obtain an independent medical examination because to rule contrary would skew the discovery in favor of plaintiffs. The Appellate Division, however, added that the need for a deposition or independent medical examination must be assessed on a case-by-case basis and the need for the discovery must be identified, i.e., a defendant must demonstrate that the form interrogatories provided insufficient information. The panel relied heavily on R.1:1-2, which permits a court to relax any rule if it would create an injustice. This opinion stretches the Rules of Court in a direction that was not intended. The Special Civil Part was designed to move cases quickly, cheaply, and efficiently, and the Rules do not provide for the discovery granted in Kellam. If such discovery is going to be allowed, then the Rules should be amended. On another note, the term "independent medical examination" is an oxymoron. There is nothing independent about the medical examine, and the term should be called what it is "a defense medical examine.; The defendant pays for the examination, and makes the doctor his/her expert. How and why the Rules refer to this exam as independent defies common sense, and in fairness to both parties, the Rules and courts should start calling the exam what it is rather than what it is not.

Contributions. If you have an interesting case, rule interpretation, ethics issue, or civil-related story, please contact me at 201-918-3560, (f) (201) 845-5973, or e-mail

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