NEW JERSEY LAWYER

INSURANCE LAW BRIEFING     02/28/2006


Automobile

 

ATLANTIC STATES GROUP v. SKOVRON, Appellate Division, A-3392-04T1, approved for publication February 24, 2006. (12 pages). Facts-on-Call Order No. 92865.

 

Where the named insured under an automobile insurance policy gives permission to use the insured vehicle to an initial permittee, and where a third party later uses the vehicle, the third party must show that he had the initial permittee’s express or implied permission to use the vehicle to obtain coverage under the policy.

 

BASTEK v. COMMERCE AND INDUSTRY INSURANCE CO., Appellate Division, A-3286-04T1, February 22, 2006, not approved for publication. (8 pages). Facts-on-Call Order No. 19271.

 

Dismissal of the plaintiff accident victims’ two-count complaint for additional payments from the defendant insurer affirmed; the plaintiffs were involved in an accident with a tractor-trailer; the driver and owner of the tractor had been hired by the defendant’s insured; the defendant had issued a commercial motor vehicle policy and a commercial general liability policy to the insured; in an automobile negligence action against the insured, the jury verdict was “well in excess” of the motor vehicle policy limits, but the plaintiffs obtained only $982,000, which represented the $1 million limit of the motor vehicle policy, less storage and towing fees; the plaintiffs’ claim that sought a declaration that the insured’s CGL policy covered the accident was barred by the CGL policy’s automobile exclusion; the plaintiffs’ claim that sought pre- and post-judgment interest on the $982,000 was properly dismissed; contrary to the plaintiffs’ additional arguments on appeal, equitable estoppel did not apply to bar the defendant from denying a duty to pay interest under the motor vehicle policy or to pay the policy limits of the CGL policy, and there was no basis for the trial judge to have recused himself.

 

Automobile - Verbal Threshold

 

ROSS v. RUPERT, Appellate Division, A-1691-05T2, approved for publication February 27, 2006. (12 pages). Facts-on-Call Order No. 92869.

 

The New Jersey Supreme Court’s decisions in DiProspero v. Penn and Serrano v. Serrano — which held that a plaintiff must establish only that he has suffered one of the six bodily injuries set forth in N.J.S.A. 39:6A-8a to withstand summary judgment based on the verbal threshold — do not apply to cases in which judgment had been entered and the time for reconsideration and appeal had expired before DiProspero and Serrano were decided.

 

PIASCIK v. MARR, Appellate Division, A-2270-04T1, February 27, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19290.

 

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; before the accident, the plaintiff never had a back injury and never had problems with her spine, and she was asymptomatic; the verbal threshold applied because the defendants’ Chevy TrailBlazer was an “automobile” within the meaning of N.J.S.A. 39:6A-2; the trial court erred by granting summary judgment based on the plaintiff’s failure to establish a permanent injury and to present the comparative analysis required by Polk v. Daconceicao; as to whether the plaintiff had established a permanent injury, the plaintiff’s objective medical evidence — including an MRI that revealed a disc bulge at L4-5 and her physical examinations — raised a genuine issue of material fact as to whether she had sustained injuries to her neck and lower back that have “not healed to function normally and will not heal to function normally”; as to Polk, it is no longer viable in the context of a summary judgment motion; even if Polk is viable, no comparative analysis was needed because the plaintiff’s physical condition had been “functionally quiescent” until the accident.

 

BETHEA-ROGERS v. MYCOFF, Appellate Division, A-574-05T3, February 24, 2006, not approved for publication. (8 pages). Facts-on-Call Order No. 19284.

 

Order entered pursuant to Rule 4:50-1 that vacated summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA and that reinstated the complaint affirmed; summary judgment was granted in a May 27, 2005 oral decision based on the plaintiff’s failure to demonstrate a serious life impact; on June 14, the New Jersey Supreme Court held in DiProspero v. Penn and Serrano v. Serrano that a plaintiff no longer is required to demonstrate a serious life impact; the defendant’s attorney received the summary judgment order on June 17 and immediately mailed it to the plaintiffs’ attorney, who did not timely move for reconsideration or file an appeal; on July 19, the plaintiff filed a motion for reconsideration, which the trial court treated as a motion for relief from judgment under Rule 4:50-1; the trial court did not abuse its discretion by vacating summary judgment in “these unique circumstances”; although the case was not subject to pipeline retroactivity under Beltran v. DeLima because the plaintiff did not appeal, it could be treated as if it was in the pipeline because the July 19 motion was filed within the 45-day period for filing an appeal.

 

COUCH v. POOLE, Appellate Division, A-6976-03T1, February 24, 2006, not approved for publication. (10 pages). Facts-on-Call Order No. 19283.

 

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; before the parties’ June 2001 automobile accident, the plaintiff was injured in a slip-and-fall accident in March 2000; the trial court concluded that the plaintiff had not demonstrated that he suffered a qualifying injury and that his injury had a serious impact on his life; however, a plaintiff no longer has to prove a serious life impact under DiProspero v. Penn, and there was sufficient objective evidence of permanent injuries to the plaintiff’s shoulders and back to withstand the summary judgment motion; that evidence included MRIs of both shoulders that indicated partial tears of the tendons, abnormal EMG studies, and diagnoses of bulging discs at C6-7 and a “chronic pain-like syndrome”; the Appellate Division did not reach the issue of whether the comparative analysis requirement of Polk v. Daconceicao survived AICRA because the report submitted by the plaintiff’s “chiropractic physician” satisfied the Polk requirement.

 

CASTRO v. SPYROPOULOS, Appellate Division, A-5293-04T5, February 22, 2006, not approved for publication. (4 pages). Facts-on-Call Order No. 19269.

 

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court concluded that there was “very, very little, if any, objective evidence of any serious impact or serious injury”; reversal and remand were required in light of the New Jersey Supreme Court’s decisions in DiProspero v. Penn and Serrano v. Serrano, which held that AICRA eliminated the serious-impact requirement; the defendants argued on appeal that the trial court had dismissed the complaint because the plaintiff failed to present objective credible evidence of a permanent injury; although it could not exclude that possibility, the Appellate Division concluded that the trial court’s language indicated that the dismissal was based on the plaintiff’s failure to satisfy the “now discarded” serious-impact requirement; nonetheless, the defendants could seek clarification on remand.

 

Property and Casualty

 

CHINOBU SAITO v. PREFERRED MUTUAL INSURANCE CO., Appellate Division, A-6726-04T1, February 23, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19276.

 

Dismissal of the plaintiff insured’s complaint seeking reimbursement of $9,425.08 in defense costs from the defendant insurer reversed and remanded; the insured owned a building, had an interest in a corporation, and rented part of the building to the corporation for use as a restaurant; a patron tripped and fell while leaving the restaurant and sued “Chinobu Saito d/b/a World Sushi”; the insured incurred the defense costs in the resulting personal injury action after the insurer denied coverage; the insurer asserted that its policy excluded claims for accidents that arose from business pursuits and that the insured had been sued in his corporate capacity but not individually; however, the personal injury complaint was filed against the insured individually as well as the corporation, and the insurer was obligated to provide a defense in light of the policy’s “broad coverage language” for bodily injury that results from an occurrence on the insured premises; the insurer’s reliance on the “business” exclusion in the policy was misplaced because the insured “was not personally engaged in a business.”

 


News Briefs

JURY AWARDS $8.4 MILLION TO BRAIN-DAMAGED WOMAN
A Vineland woman who suffered irreparable brain damage after she was treated with an excessive dose of a painkiller in 1999 will receive $8 million. After a month-long trial, a jury deliberated only four hours before issuing its verdict to Cumberland County Judge Michael Brooke Fisher: $3.4 million for medical and economic damages, $4 million for pain and suffering, and $1 million to Sandy Terris’ husband, Elliot, for loss of companionship. While the verdict may be the second-largest civil award in County history, after a $12 million verdict later set aside, it is unusually large for the South Jersey County, where jurors are generally conservative. Terris, 63, has been in a nursing home since she went into respiratory arrest and entered a coma after she was administered an excessive amount of narcotic in the emergency room at what was then Newcomb Hospital. Terris, a diabetic, went to the hospital after she became dehydrated and had trouble controlling her blood sugar a week after she was badly hurt in a car crash. The jury found Dr. Alan Cohen 70 percent responsible and nurse Christine Roller 30 percent liable. Another nurse, Mary Ann Harris, was absolved of any responsibility. Lawrence R. Cohan of Cherry Hill represented the plaintiffs. Beth A. Wright of Marlton defended Cohen, and Thomas J. Heavey of Brick defended the two nurses in Terris v. Cohen.

 WOMAN AWARDED $3 MILLION FOR CAR-CRASH INJURIES

A woman who suffered permanent spinal injury as a result of a car crash will receive $3 million for pain and suffering. Ending a three-day trial, an eight-member Middlesex County jury before Judge Lorraine Pullen found that the injured woman, Teria O. Armstead, had no liability for the accident, that she had met the lawsuit threshold, and that she suffered permanent injuries from herniated discs. Defendant Mattie Crosson was found 100 percent liable, having crossed several northbound lanes on the Garden State Parkway after leaving the Union rest area. She was represented by Doreen M. Ryan, house counsel for her insurer, Allstate Insurance Co. in Cranford, which had offered no money prior to trial. David A. Nitti of the Law Office of Michael A. Percario in Linden handled the case, Armstead v. Sonzongi and Crosson, for the plaintiff. Another defendant, John J. Sonzongi, was found to have no liability.

 

DRIVER’S ESTATE AGREES TO $1.2 MILLION SETTLEMENT
The estate of a Newark man seriously injured in a March 2001 car crash is receiving $1.225 million under a settlement with the insurers for a truck that his car broadsided when the truck driver, without looking, turned left in front of his car. Hector Maldonado, 51, fractured both legs and his jaw. He was a diabetic and suffered from other medical conditions prior to the accident on Frelinghuysen Avenue in Newark. After leg surgery for accident injuries, Maldonado developed an infection that led to the amputation of his left leg below the knee. He died 18 months later of unrelated causes. His lawyer, Gregg Alan Stone of Kirsch, Gelband & Stone in Newark, represented the estate of Maldonado, who is survived by four adult children. Samuel D. Lord of Connell Foley in Roseland represented defendants William Knight, the truck driver, and his employer, Automatic Electro Plating Corp., in Maldonado v. Knight. New Jersey Manufacturers Insurance Co. will pay $850,000, while Chubb Insurance Co. will pay the balance.

 

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