Personal Injury and Civil Trial
October 2007, No.6
October 2007, Vol. V, No. 6
If One Injury Satisfies the Verbal Threshold, Can a Plaintiff Recover for All of Her Injuries? Yes. In Johnson v. Scaccetti, 192 N.J. 256 (2007), the Supremes affirmed the pre-AICRA decision of Puso v. Kenyon, 272 N.J. Super. 280 (App. Div. 1994), which held that once a plaintiff satisfies a category of the verbal threshold, she is eligible to recover for all injuries sustained in the accident. In Johnson, the Supremes held that plaintiff’s herniated disc and ultimate spinal fusion were permanent injuries as a matter of law, and thus, she could recover for all of her other injuries, including her chipped teeth. This decision is properly based on the long-standing decision in Puso, and should be included in charges to the jury.
Johnson Part II: Does a Chipped Tooth Vault the Verbal Threshold? For those of you who said yes because it is similar to a displaced fracture, you would be wrong. In Johnson v. Scaccetti, 192 N.J. 256 (2007), the Supremes concluded that a tooth is not a bone, and thus, a chipped tooth does not satisfy the category of displaced fracture required to surpass the verbal threshold. This decision is logically based on the medicine. Thus, the Supremes are correct that a chipped tooth does not meet the verbal.
Does a Motor Vehicle Insurer Receive a Credit on its Income Continuation Benefits When the Plaintiff Obtains an Award of Total Permanent Disability in Workers Compensation? For those of you who said no, think again. See Portnoff v. New Jersey Manufacturers, Inc., 392 N.J. Super. 377 (App. Div. 2007). In Portnoff, an attorney, while working, was involved in a car crash, and was ultimately found to be permanently disabled in a workers compensation proceeding. The weekly amount of money from the workers compensation case was less than the income continuation benefits in his car insurance. In denying the insurer’s request for a credit, the trial court ruled that the collateral source rule did not entitle the insurer to a credit. The Appellate Division reversed finding that the PIP statute, N.J.S.A. 39:6A-6, specifically states that an employee should look first to workers compensation for lost income, and that any amounts received from workers compensation should be reduced from the PIP amount. The rationale is that when one can no longer return to work, and is declared 100% disabled in workers compensation, the future payments are intended to replace loss of income. This case makes sense because if the ruling was reversed, the plaintiff would be permitted to obtain a double recovery.
Step-Down and Step Up: Are Step Down Clauses for UIM in Commercial Car Policies Valid? For those of you who said yes because of Pinto v. NJM, you would be wrong because Governor Corzine recently signed a bill outlawing such policies. Step- down policies prohibit an employee-driver from recovering UIM coverage from his employer’s carrier unless the employee is specifically listed – if the employee is not specifically listed, his UIM coverage would be stepped down to the coverage in his own policy, which is presumably lower. Thus, the Legislature and Governor Corzine stepped up, and banned these policies because they defeat the reasonably expectations of employers and employees. Three cheers for the Governor and Legislature!