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

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 that 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, limits the right of the injured driver to sue the at-fault driver for non-economic damages, or 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. Disfigurement or scarring
  5. Displaced fractures
  6. Permanent injury

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

Thus, pursuant to this section, 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.  Although the intent behind AICRA was to actually reduce the amount of lawsuits involving motor vehicles, the permanent injury category has resulted in numerous lawsuits.

An injury will qualify as permanent if it has not healed to the point of normal functioning and it will not heal to the point of normal functioning with further medical treatment.  N.J.S.A. 39:6A-8a.  So, for example, accident injuries that last only a few months, such as muscle spasm, will most likely not qualify as permanent injuries so as to overcome the threshold.  This is because spasm typically gets better with treatment and so it will not qualify as permanent.

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 soft tissue injury 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 physician indicating that he or she has suffered one of the AICRA injuries no later than 60 days of the date that the defendant files an answer to the complaint.  This requirement is known a Certification of Permanency.

A Car Accident Attorney Can Help

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) 264-7228.

Posted in Auto Accident, automobile insurance, Personal Injury.