June 14, 2005 - Transportation Litigation Update - June 2005
New Jersey Supreme Court Modifies Verbal Threshold Rule
The verbal threshold in New Jersey was significantly modified by the state Supreme Court in the landmark decisions of DeProspero v. Penn and Serrano v. Serrano, released on June 14, 2005. In light of these decisions, a plaintiff who is subject to the verbal threshold must only show proof of a permanent injury by objective credible medical evidence to pierce the threshold as defined by N.J.S.A. 39:6A-8. The Court ruled that nothing in the statute or legislative history suggests that the statute contains a serious impact on life standard. As a result, a plaintiff no longer must show that his alleged injury had a significant impact on his life in order to pierce the verbal threshold.
The Court's holding presents two scenarios that all insurers writing New Jersey auto insurance must realize. First, it will be nearly impossible to win a summary judgment motion on a verbal threshold case. The only issue to challenge on summary judgment will be the objective proof of injury submitted by the plaintiff. In light of the Court's decisions, the plaintiffs' bar likely will make sure that their clients' medical proofs contain issues of fact that a trial judge will rule must be determined by a jury. Second, and most important, if an insurer was involved in cases in which summary judgment was granted because the plaintiff failed to show that the alleged permanent injury had a significant impact on his or her life, look for motions to vacate the orders. Pursuant to New Jersey Court Rule 4:50-1(f), a party has one year to vacate a court order for basically any reason. As a result, insurers should be aware that these cases may be reopened.
- Laurence T. Bennett