December 2007, No. 8

December 2007, Vol. V, No. 8

Happy Thanksgiving and Holidays. We want to wish you all a happy holiday season. Also, do not stress, no quizzes in this issue.

UIM Question #1: Can the plaintiff call the PIP adjuster to prove causation? If you said yes because if the carrier paid PIP benefits, then it must then pay UIM benefits, you are wrong. See Bardis v. First Trenton Ins. Co., N.J. Super. (App. Div. 2007). In Bardis, the Appellate Division ruled that a trial for UIM benefits must be tried with the same evidence as if the case was against the real evidence. Therefore, PIP payments are not admissible because they would no go to prove or disprove any fact in evidence. See N.J.R.E. 401. The Appellate Division also held that the PIP adjuster is not an expert, and thus, not qualified to render an opinion on causation. The Appellate Division's ruling here makes good sense, and we applaud it.

UIM Question #2: Is it inappropriate to refer to the carrier as the defendant? For those of you who said yes, guess again. In Bardis, the Appellate Division stated that no blanket rule prohibits the trial court from advising the jury that the case involves UIM benefits. Three cheers for this statement of the law!!! The fact is that a UIM trial is against the carrier, and not advising the jury of same makes the case a fiction. The lawyer for the carrier does not represent the defendant, and the defendant usually had no interest in the outcome of the case. The jury should be told the truth, and should decide the case on the merits between the real parties at interest.

Is a Tort Claims Notice Required for a Counterclaim? For those of you who said of course not because the public entity must have knowledge if it is suing, you are wrong. In Port Authority of New York and New Jersey v. Airport Auto Services, Inc., N.J. Super. (App. Div. 2007), the Port Authority filed suit against Airport Auto for unpaid rent, and Airport Auto countersued for monies owed for services without filing a notice of claim. Pursuant to N.J.S.A. 32:1-163 and 164, anyone who desires to sue the Port Authority must provide sixty days notice before filing suit. This decision is consistent with a New York case dealing with the same issue, and is also in accord with the Supreme Court's treatment of counterclaims under the Tort Claims Notice. FYI: notice that the waiting period is sixty days for suing the Port Authority, which differs from the Tort Claims Notice's requirement of waiting six months.

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 mjepstein@theepsteinlawfirm.com.

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