| Kenneth
Vercammen & Associates Law Office help people injured due to the
negligence of others. We provide representation throughout New Jersey.
The insurance companies will not help. Don't give up! Our Law Office
can provide experienced attorney representation if you are injured.
In order to recover damages in most in a car Personal Injury case,
the plaintiff must prove by a preponderance of the evidence that
he/she sustained injuries which fit into one or more of the following
categories:
1. Death;
2. Dismemberment;
3. Significant disfigurement or significant scarring;
4. Displaced fracture;
5. Loss of a fetus;
6. A permanent injury within a reasonable degree of medical probability,
other than scarring or disfigurement.
At the trial, the Judge will read the "formal instructions"
to the Jury. They are called Request to Charge. The Request to Charge
in an accident case was revised recently.
CHARGE 5.42
LIMITATION ON LAWSUIT OPTION
5.42 LIMITATION ON LAWSUIT OPTION 1 (Revised 4/06)
A. Introduction
In order to recover damages in this case, plaintiff must prove by
a preponderance of the evidence that [he] [she] sustained injuries
which fit into one or more of the following categories:
1. Death;
2. Dismemberment;
3. Significant disfigurement or significant scarring;
4. Displaced fracture;
5. Loss of a fetus;
6. A permanent injury within a reasonable degree of medical probability,
other than scarring or disfigurement.
1 See N.J.S.A. 39:6A-8a. Though not numbered in the statute, the
Limitation on Lawsuit Option within the Automobile Insurance Cost
Reduction Act of 1998 (L.1998, c. 21 and c. 22) (“AICRA”),
the categories are: (1) death; (2) dismemberment; (3) significant
disfigurement or significant scarring; (4) displaced fractures;
(5) loss of a fetus; (6) a permanent injury within a reasonable
degree of medical probability, other than scarring or disfigurement.
The effective date of this provision of AICRA is March 22, 1999.
Therefore, the Limitation on Lawsuit Option shall apply to individuals
who, at the time of the accident, were insured under automobile
liability insurance policies issued after March 22, 1999. By way
of example, if an individual was involved in a motor vehicle collision
on March 23, 1999, but was still covered under a policy issued before
the effective date of the statute (March 22, 1999), he or she will
be subject to the verbal threshold charge applicable to L.1988,
c.119 effective January 1, 1989.
CHARGE 5.42
If you find the injuries caused by the accident do not come within
one of these categories, your verdict must be for the defendant.
If you find the injuries caused by the accident do come within one
of these categories, your verdict must be for the plaintiff.
B. Permanent Injury (Type 6)
In this case, the plaintiff alleges that [he] [she] suffered a permanent
injury as a result of the motor vehicle accident. An injury shall
be considered permanent when the body part or organ, or both, has
not healed to function normally and will not heal to function normally
with further medical treatment. 2 Plaintiff must prove this claim
through objective, credible medical evidence. Objective proof means
the injury must be verified by physical examination or medical testing
and cannot be based solely upon the plaintiff’s subjective
complaints. Credible evidence is evidence you find to be believable.
2 This definition of “permanent injury” is taken directly
from the Automobile Insurance Cost Reduction Act of 1998 (“AICRA”),
N.J.S.A. 39:6A-8. In DiProspero v. Penn, 183 N.J. 477 (2005), the
New Jersey Supreme Court held that the Legislature did not intend
to require a plaintiff with a Type 6 injury to prove a “serious
or substantial impact” on his or her life in order to pierce
the verbal threshold. Therefore, a plaintiff need only prove a permanent
injury, as defined in the statute, to recover for non-economic damages.
• CHARGE 5.42
C. Sample Interrogatories (Limitation on Lawsuit Option)
(Category 1) Has the plaintiff proven by a preponderance of the
credible evidence that the decedent [insert name] died as a proximate
result of the accident?
_____ Yes _____ No _____ Vote
(Category 2) Has the plaintiff proven by a preponderance of the
credible evidence that [he] [she] sustained a dismemberment that
was proximately caused by the accident?
_____ Yes _____ No _____ Vote
(Category 3) Has the plaintiff proven by a preponderance of the
credible evidence that [he] [she] sustained a significant disfigurement
or significant scarring that was proximately caused by the accident?
_____ Yes _____ No _____ Vote
(Category 4) Has the plaintiff proven by a preponderance of the
credible evidence that [he] [she] sustained a displaced fracture
that was proximately caused by the accident?
_____ Yes _____ No _____ Vote
(Category 5) Has the plaintiff proven by a preponderance of the
credible evidence that she lost a fetus as a proximate result of
the accident?
_____ Yes _____ No _____ Vote
• CHARGE 5.42
(Category 6) Has the plaintiff proven by a preponderance of the
credible evidence that [he] [she] sustained a permanent injury that
was proximately caused by the accident?
_____ Yes _____ No _____ Vote
(Damages) What amount of money will fairly and reasonably compensate
the plaintiff for all injuries that were proximately caused by the
accident?
$______________________ _____ Vote
5.50 TORT CLAIMS ACT THRESHOLD FOR RECOVERY OF DAMAGES FOR PAIN
AND SUFFERING (Approved 1/02)
INTRODUCTORY NOTE
When the plaintiff's negligence claim arises against a government
entity, the Torts Claims Act, N.J.S.A. 59:1-1 to 12-3, governs the
claim. The Act provides specific exceptions to the doctrine of sovereign
immunity. Except when the Act specifically imposes liability, public
entities remain immune from negligence suits. N.J.S.A. 59:1-2. Accordingly,
the Tort Claims Act must be strictly construed to permit lawsuits
only where specifically delineated.
Subsection (d) of N.J.S.A. 59:9-2 sets forth a threshold for non-economic
damages that a plaintiff must surmount to sustain a claim for pain
and suffering. Note: The failure to reach the objective monetary
and descriptive threshold set forth in N.J.S.A. 59:9-2 does not
bar all causes of action, but merely bars recovery for pain and
suffering component.
The section of the Act, in pertinent part and with added emphasis,
reads as follows (as amended P.L. 2000, c. 126, ß 32, effective
September 21, 2000):
No damages shall be awarded against a public entity or public employee
for pain and suffering resulting from any injury; provided however
that this limitation on the recovery of damages for pain and suffering
shall not apply in cases of permanent loss of a bodily function,
permanent disfigurement or dismemberment where the medical treatment
expenses are in excess of $3,600. (Prior to September 21, 2000,
any cause of action that arose involving the threshold required
medical treatment expenses in excess of $1,000.)
The courts have held that the plaintiff could prove future expenses
to meet the monetary threshold. It must also be noted that, if the
plaintiff has not met the monetary threshold, but the plaintiff
sustained permanent injury or disfigurement, he or she may still
recover economic damages for his/her permanent injury. See, Peterson
v. Edison Tp. Bd. of Ed., 137 N.J. Super. 566 (App. Div. 1975);
Rocco v. NJ Transit Rail Operations, 330 N.J. Super. 320 (App. Div.
2000).
GENERAL INSTRUCTION
Introduction
To recover damages for pain and suffering [as I have previously
defined that measure of damages] in this case, the plaintiff must
prove by a preponderance of the evidence that he/she sustained injury
that fits into one of the following categories:
Note to Judge
Charge the appropriate category or both, depending upon the proofs
introduced in each case.
1) Permanent loss of bodily function, and/or
2) Permanent disfigurement or dismemberment
For either category the plaintiff must prove that the medical treatment
expenses incurred, as a proximate cause of this condition, exceeded
$3,600. (If the cause of action arose after September 21, 2000.
The amount is $1,000, if it arose before that date.)
B. Permanent Loss of Body Function
With respect to a permanent injury the plaintiff must prove:
1) A permanent loss of body function [here insert an appropriate
description of body function claimed lost].
2) The loss need not be total, but must be substantial. Mere limitation
is insufficient, by that I mean the plaintiff must prove this loss
by a demonstration of objective credible medical evidence of permanent
injury, because damages for temporary injury are not recoverable.
The proof must be both objective and credible. Objective means that
the evidence must be verified by physical examination, diagnostic
testing and/or observation. Credible mean that the evidence is believable.
3) The plaintiff may not recover for mere subjective feelings of
discomfort.
C. Disfigurement
1) The scaring, indentation and/or blemishes [here insert an appropriate
description of the scar, indentation or blemish] must be an objectively
significant disfigurement.
2) It must be more than a trifling mark discoverable on close inspection
and must detract from the appearance of the person.
The disfigurement must be visible and not insubstantial.
To summarize, to recover for pain and suffering the plaintiff must
prove by a preponderance of the evidence that he/she sustained .
. . (choose appropriate category)
a permanent loss of a bodily function OR
a permanent disfigurement that is substantial OR
a dismemberment
and has met the monetary threshold.
If you so find then you may consider all of the evidence presented
by the plaintiff relating to all of his/her pain and suffering from
permanent injuries even those injuries that do not meet the threshold
that you find were proximately caused by the negligence of the [here
identify the public entity or public employee]. ,
Reale v. Tp. of Wayne, 132 N.J. Super. 100 (Law Div. 1975).
See, Hammer v. Tp. of Livingston, 318 N.J. Super. 298 (App. Div.
1999).
In a case where the public entity or employee is alleged to be a
joint tortfeasor with a non-public defendant, then the non-public
defendant will remain exposed to liability for pain and suffering
where the threshold is not met by the plaintiff against the public
tortfeasor. See, Rivera v. Gerner, 89 N.J. 566 (1982).
Charge 5.50
About the Author:
Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately
17 miles north of Princeton. He often lectures for the New Jersey
State Bar Association on personal injury, criminal / municipal court
law and drunk driving. He has published 125 articles in national
and New Jersey publications on municipal court and litigation topics.
He has served as a Special Acting Prosecutor in seven different
cities and towns in New Jersey and also successfully defended hundreds
of individuals facing Municipal Court and Criminal Court charges.
In his private practice, he has devoted a substantial portion of
his professional time to the preparation and trial of litigated
matters. He has appeared in Courts throughout New Jersey several
times each week on many personal injury matters, Municipal Court
trials, Arbitration hearings and contested administrative law hearings.
Since 1985, his primary concentration has been on litigation matters.
Mr. Vercammen gained other legal experiences as the Confidential
Law Clerk to the Court of Appeals of Maryland (Supreme Court), with
the Delaware County, PA District Attorney Office handling Probable
Cause Hearings, Middlesex County Probation Dept as a Probation Officer,
and an Executive Assistant to Scranton District Magistrate, Thomas
Hart, in Scranton, PA.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
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