Am I Legally Entitled to Bring a Law Suit?

New Jersey’s Verbal Threshold: Can You Sue for Injuries After a Car Accident in New Jersey?

Pursuant to New Jersey’s Automobile Insurance Cost Reduction Act (AICRA), those purchasing car insurance policies have the option of choosing between the No Limitation on Lawsuit (also known as Zero Threshold) and the Limitation on Lawsuit (also known as Verbal Threshold) policies.  The difference between the two is extremely significant: The No Limitation on Lawsuit option gives the insured an unlimited right to sue for damages in the event of a car accident, while the Limitation on Lawsuit, as its name implies, substantially limits the right of the injured driver to sue the at-fault driver for non-economic damages, pain and suffering.

Thus, when you purchased your auto insurance policy in New Jersey, you were given the option of purchasing either the No Limitation on Lawsuit or the Limitation on Lawsuit option.  Most people do not understand exactly what this means but, nonetheless, choose the Limitation on Lawsuit policy because it is much less expensive than the No Limitation on Lawsuit policy.

A driver covered by a Limitation on Lawsuit/Verbal Threshold policy, however, may be able to overcome the verbal threshold and sue the at-fault driver if their injuries fall into one or more of six categories.  These six categories are based on the severity of the injuries sustained in the accident.  They include:

  1. Death
  2. Dismemberment
  3. Loss of Fetus
  4. Significant disfigurement or scarring
  5. Displaced fractures
  6. A Permanent injury

[N.J.S.A. 39:6A-8a.]

Thus, pursuant to this Statute, even if a driver chooses the Limitation on Lawsuit/Verbal Threshold policy, they could still bring a lawsuit against the negligent driver if the accident resulted in one of the above injuries.

The first five categories define themselves.  The most debated injury category in New Jersey auto accident cases, however, is the last one listed, Permanent Injury.  An injury will qualify as permanent if the affected body part or organ has not healed to the point of normal functioning and it will not heal to the point of normal functioning even with further medical treatment.  N.J.S.A. 39:6A-8a.  So, for example, accident injuries that last only a few months, such as bruises or simple sprains, will most likely not qualify as permanent injuries which would overcome the threshold.  This is because these typically gets better with time and/or treatment.

Overcoming the Verbal Threshold – The Certification Requirement

In Oswin v. Shaw, 129 N.J. 290 (1992), the New Jersey Supreme Court held that car accident victims who claim to have injuries other than broken bones must present objective, medical evidence of the injury to satisfy the verbal threshold.  Subsequently, in 2005, the New Jersey Supreme Court in DiProspero v. Penn, 183 N.J. 477 (2005), applied the objective, credible medical evidence requirement to all of the six injury categories in AICRA.

AICRA also requires an injured accident victim who is subject to the verbal threshold to submit a certification from a treating physician indicating that he or she has suffered one of the AICRA injuries no later than 60 days after the defendant files an answer to the complaint.  This requirement is known a Physician’s Certification of Permanency.

If you have been involved in a car accident or a truck accident in New Jersey and have questions about whether or not you may sue the at-fault driver, contact the experienced personal injury attorneys at Harrell, Smith & Williams today for a free consultation.  You can reach us anytime at 908-543-7037.

Who Will Pay For My Medical Bills?

The Basics of PIP: Setting Up a Medical Claim

If you are involved in a car accident in New Jersey, ensuring that your medical bills get paid may be a complicated and difficult task.   Although it may seem counter-intuitive, when a New Jersey driver is injured in a car accident caused by the fault of another driver, the injured driver’s own car insurance company is responsible for paying their medical bills.  This is because New Jersey is what is known as a No-Fault state.  Therefore, regardless of who is at fault for the auto accident, each injured driver must make a claim for their medical expenses – also known as a Personal Injury Protection claim (PIP) – with their own car insurance company.

Therefore, if you were involved in an auto accident and need medical treatment, you must timely contact your own insurance company to set up a claim.  When setting up your claim, the adjuster will probably ask you for basic information including your policy number, contact information, the location of the accident, a description of the accident, whether the accident resulted in property damage, questions regarding the other vehicle and whether you were injured.  Again, you do not have to prove fault in order for your medical expenses to be covered by your auto insurance company.

Unlike most health insurance companies, your auto insurance company is not allowed to require that you see certain doctors or that you see providers in you network. With PIP, you can see any doctor of your choosing.

You should be aware that your responsibilities under PIP include the following:

  • Deductible: the PIP deductible is a minimum of $250. Your deductible, however, be as high as $2,500, depending on your policy coverage limits.  If you also have health insurance, you should list your health insurance secondary to the auto insurance, as they may cover all or some of your deductible.
  • Copayments: it is your responsibility to pay 20% of the first $5,000 of your medical bills.   Again, if you have health insurance, you should try to list them as a secondary insurer as they could cover these copayments as well.

Note however in some limited circumstances, your policy may contain very little or no benefits for medical care.  In those circumstances, you should submit your bills to your health insurance company in their entirety.  You will be limited to treating with the doctors approved by your specific plan.

When choosing your automobile insurance policy, you may have made a choice regarding whether to make PIP or your health insurance company your primary source of medical insurance coverage.  We always recommend making PIP primary.  If you make your health insurance primary, you may be responsible for paying back your health insurance company from any settlement amounts you receive.  You would not, however, have to do that if your auto insurance was primary.

If you were involved in an auto accident in New Jersey and have questions about your medical expenses, contact the experienced personal injury attorneys at Harrell, Smith and Williams today at (908) 543-7037 to schedule a no-cost consultation. 

What to Do If a Ticket is Issued?

If you were involved in an accident and received a ticket, you should consult with an attorney before deciding to simply pay the ticket on-line or through the mail because you “do not have the time to deal with it.”  Paying the ticket is the equivalent to pleading guilty to the charge.  Unfortunately, the consequences of paying the ticket and pleading guilty as charged has far greater consequences than just the monetary fine or insurance points, especially if you were not at fault for the accident.  If decide to bring a personal injury action, the defendant may be able argue that you were at fault for the accident in light of the fact that you were charged with a motor-vehicle summons and admitted to being guilty of that offence.

In sum, prior to taking any action, you should consult with an attorney to determine if you should fight the ticket outright, seek a plea agreement for lesser charge plea to the charge and seek what is known as a “Civil Reservation.”  Having your guilty plea marked with “Civil Reservation” allows you to plead guilty to an offence in municipal court without having that guilty plea used against you in a future action, such as a personal injury lawsuit.

If One of the Other Driver’s Receives a Ticket

If you were involved in an accident and one of the other drivers was issued a summons for a traffic violation, you may be issued a notice to appear in court at the request of the municipal prosecutor.  Despite not being at fault for the accident or at risk of a fine, it is still prudent to consult with an attorney prior to appearing in court, especially if you as the victim may be required to give testimony as to the happening of the accident or your injuries.  All matters in municipal court are recorded and anything you say may potentially be used to your detriment in any future lawsuit or litigation.

If you were involved in an auto accident in New Jersey and any tickets were issued, contact the experienced personal injury attorneys at Harrell, Smith and Williams today at (908) 543-7037 to schedule a no-cost consultation.

Accidents Involving UBER and LIFT

Uber and Lyft Ridesharing Insurance Coverage in New Jersey

Uber, Lyft, and other ridesharing services allow you to use a mobile app to connect you with a driver in minutes.  Ridesharing drivers, who typically have other jobs and use these services to supplement their income, are able to work their own hours and use their own vehicles to transport customers.  Although these services are convenient and often times cost far less than the price of commercial taxis or limos, they also raise several issues with respect to insurance coverage – issues that most ridesharing passengers, and even drivers themselves, rarely, if ever, think about.

Uber does provide its own commercial insurance policy, which is issued by the James River Insurance Company.  According to Uber, their insurance is “best in class” and has been rated A- (excellent) by A.M. Best, the insurance industry’s standard rating agency.  If you are an Uber or Lyft driver who is involved in a motor vehicle accident, or if you are a pedestrian or a passenger in an Uber or Lyft vehicle that is injured in an accident, whether or not the ridesharing services’ commercial insurance policies will provide coverage will depend upon exactly how the ridesharing driver was using the app at the time of the accident.

Each of the possible scenarios dealing with insurance coverage are discussed in further detail below and can be broken down into the following three categories: (1) the ridesharing app is off and the driver is not available to accept a trip; (2) the ridesharing driver is either en route to pick up a passenger or is on an actual trip; or (3) the ridesharing driver is between trips but is available to accept a trip.

Ridesharing App is Turned Off: No Commercial Coverage

When an Uber or Lyft driver is driving their personal vehicle when the ridesharing app is turned off, meaning the driver is offline and they are not available to accept a trip, the driver’s own personal automobile insurance company would provide coverage.  Thus, the ridesharing services’ commercial policy would not come into play and in this scenario, the coverage limits, exclusions, and terms of the driver’s own personal auto policy would apply.

Ridesharing Driver Accepts Trip and Is En Route to Pick Up Passengers Through the End of the Trip: Commercial Coverage

According to Uber, from the moment a driver accepts a trip and is en route to pick up passengers until the time when the passengers are dropped off, Uber’s commercial insurance policy, which in New Jersey provides $1.5 million in liability coverage per accident to passengers or any third parties, kicks in.  This policy is primary to any other applicable personal automobile policy.

Moreover, Uber’s commercial policy also contains $1.5 million of Uninsured/Underinsured coverage per accident.  Thus, if an at-fault driver causes an accident with an Uber driver, and that driver is either uninsured or not adequately insured, Uber’s policy would provide bodily injury coverage to all occupants of the Uber vehicle.  Thus, regardless of who is at fault, $1.5 million of coverage would be in place for Uber passengers.

With respect to comprehensive and collision insurance, Uber’s coverage is contingent.  In general, collision coverage reimburses a vehicle owner for property damage if they hit a car, pole, or other non-living object.  Comprehensive coverage, on the other hand, reimburses a vehicle owner for damage caused by an event other than collision, such as theft, fire or vandalism.  Since Uber’s commercial comprehensive and collision insurance is contingent, it would apply only if the Uber vehicle driver owns their own personal comprehensive and collision insurance policy and only if their personal insurance company denies coverage.  Coverage provided will be up to the cash value of the vehicle with a $1,000 deductible.

To view Uber’s New Jersey Certificate of Insurance for the commercial policy covering the period of time from accepting a trip until the trip has ended and the rider has exited the vehicle.

Lyft also states that, in this scenario, their liability insurance will act as primary coverage during the time the driver accepts a request for a ride, until the time the ride has ended, and will provide $1 million in coverage per accident and $1 in uninsured/underinsured coverage per accident.  Lyft further states that it provides contingent collision and comprehensive insurance coverages for its drivers, which apply so long as their drivers have collision and comprehensive ccoverage on their personal auto policies, and provide $50,000 in coverage with a $2,500 deductible.

Ridesharing App is On But Driver Has Not Accepted a Trip: Contingent Commercial Coverage

While Uber’s insurance was originally limited to providing coverage when the Uber driver had either accepted a trip or was on an actual Uber trip, over time Uber has added more coverage to include the time between trips, when the Uber app is open but a driver has not yet accepted a trip.

Uber’s current position is that, during the period of time when an Uber driver has the Uber app open and is online, but has not yet accepted a trip, most personal automobile insurance carriers should provide coverage in the event that the Uber driver was involved in an accident.  Despite Uber’s position, many personal auto policies contain exceptions that exclude coverage for commercial activities, such as transporting passengers for hire.  Thus, if made aware that their insured at the time of the accident was on duty with Uber with the app open, or was in between trips, many insurance carriers in New Jersey would likely deny coverage.

In fact, a highly publicized similar scenario was the subject of a lawsuit after a six-year-old girl was killed in California and was struck by an Uber driver.  Uber denied insurance coverage, claiming that the driver was not en route to pick up a passenger or on a trip.  The family, however, argued that the driver had his app open, was online, and was distracted his the app at the time of the accident.  In the end, the driver’s personal auto insurance company offered the policy limits.

Many feared, however, that an “insurance gap” existed in this scenario, whereby both Uber and the driver’s personal insurance policy might deny coverage based on ambiguities in policy language.   Thus, effective March 14, 2014, Uber added contingent “insurance gap” coverage to cover those instances when a driver who does not have passengers and is not on their way to pick up passengers, but is logged into the Uber network and is available to accept a ride.

Thus, in the event the driver does not have personal insurance coverage during this period of time, whether due to the fact that their auto insurance company denies coverage or the driver simply does not have insurance, Uber’s separate contingent commercial policy would cover the driver’s liability for bodily injury up to $50,000 per person for injuries with a total of $100,000 and up to $25,000 for property damage.

With respect to Lyft, when the driver mode is turned on but the driver has not yet accepted a ride, Lyft states that it will provide contingent liability insurance that will kick in if the driver’s personal auto insurance does not cover the accident.  Coverage provided includes $50,000 per person for injuries, $100,000 per accident, and $25,000 for property damage.

In short, if you are hit by a ridesharing driver who has not yet accepted a fare, or if you are a ridesharing driver and someone hits you while you are on duty but have not yet accepted a trip, insurance issues may arise.  As explained above, liability coverage drops down to $50,000 per person, but you may have a hard time even getting that, since Uber and Lyft both consider their driver’s personal auto policy to be primary in a case like this, and, therefore, they are not eager to pay out.  The driver’s personal auto policy, on the other hand, may deny coverage if it learns that the driver was using the vehicle for a commercial purpose, resulting in them denying the claim and possibility even canceling their policy entirely.

If, on the other hand, if you were involved in a ridesharing accident that occurred while a driving was en route to accepting a trip or while on a trip, you may be surprised to learn that the ridesharing liability policy, with its million dollar-plus coverage limits, becomes primary.

If you were a pedestrian or a passenger in ridesharing vehicle that was involved in an accident, or if you are an Uber or Lyft driver yourself and you have issues regarding your insurance coverage, contact us today at (908) 543-7037.  The New Jersey auto accident lawyers at Harrell, Smith and Williams will guide you through these complex insurance coverage issues to obtain the compensation you deserve.  Contact us today.

Posted in Auto Accident, automobile insurance, Injured Passengers, Personal Injury.