May 2005, No.1

May 2005, Vol. V, No. 1

Common Sense v. Strict Interpretation regarding the Deemer Statute in AICRA. N.J.S.A. 17:28-1.4, "the Deemer Statute," mandates that the verbal threshold applies to policies of out-of-state residents who have accidents in New Jersey if their insurance companies do business in New Jersey. Sounds simple enough, but in Baduini v. Serina, 375 N.J. Super. 478 (App. Div. 2005), the result is nothing short of absurd. Here are the facts: plaintiff is a New Jersey resident who owns two vehicles, one garaged in New Jersey and the other in Pennsylvania. The car in NJ has an insurance policy with no threshold, and the car in Pennsylvania is insured with a policy issued in that state with a full tort option, which is equivalent to the no threshold. Thus, the plaintiff did everything that he could to protect his rights in the event of a motor vehicle accident. Ultimately, the plaintiff has an accident in New Jersey with his Pennsylvania car. For some reason, the Appellate Division held that the Deemer Statute requires that the threshold apply. I cannot believe that the law was enacted to prevent innocent victims from recovering for pain and suffering in instances like these, and hope that the Legislature or Supreme Court revisits this statute and ruling to ensure that people who opt for no threshold policies will have their rights protected.

Can parents waive their children's right to a trial by jury by signing a waiver that requires arbitration? Yes. In Hojnowski v. Vans State Park, 375 N.J. Super. 568 (App. Div. 2005), the Appellate Division recently held that an agreement to arbitrate between a parent and a skateboard facility was enforceable because the son was a third-party beneficiary of the agreement.

Hojnowski Part II: Can parents waive the liability of a tortfeasor for negligence regarding their children? Some of you are probably thinking that this is an easy question after the first one, but the Appellate Division said NO, parents do not have such power. The Appellate Division held that as a matter of public policy, it has the responsibility to protect our State's children's rights in the event that they are injured by a defendant's negligence. Judge Fischer dissented finding that the pre-accident release was valid because, inter alia, parents can enter into agreements binding their children and because parents have the constitutional right to make decisions for their children. Given the dissent, this case is going to the Supreme Court so stay-tuned. Early prediction is that the Supremes will affirm both parts of the decision finding that the arbitration clause is valid as it is procedural and that the liability waiver is invalid as it deals with a children's substantive rights.

Does a patient have a viable cause of action when a doctor breaches a promise to use a specific co-surgeon? Surprisingly, the Appellate Division said no. In Starozytnyk v. Reich, A-4706-03T1 (Apr. 25, 2005) (approved for publication), the trial court granted summary judgment in favor of the doctor despite the plaintiff's testimony that he consented to the surgery only after the doctor had promised to use a specific co-surgeon with a different specialty. The plaintiff filed claims for breach of contract, violation of informed consent, and battery. The Appellate Division stated that battery did not apply because the co-surgeons who performed the operation were not sued, and that breach of contract and informed consent were not cognizable in this fact pattern because plaintiff could not prove proximate cause. How can a patient not have a cause of action in these circumstances? If a patient cannot sue when a doctor lies to him about critical information regarding a prospective surgery, then when can they sue. This case makes bad law and protects surgeons at the expense of patients. Like the Supreme Court in Howard v. UMDNJ, 172 N.J. 537 (2002), the Appellate Division has continued to restrict the causes of action available to patients. Let's hope that this case goes before the Supreme Court, and that the Court revisits Howard and reverses this ruling.

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@epsteinbeirne.com.

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