| rball |
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| Thursday, October 04, 2007 |
| Monday, August 30, 2010 12:04:26 PM |
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In Cupido v. Perez, the plaintiff was a resident of Pa. involved in a motor vehicle accident in NJ. Plaintiff selected the full tort option under his personal automobile insurance policy giving him the right to sue for any injuries sustained in a motor vehicle accident. Plaintiff's carrier, Nationwide, was not authorized to transact any motor vehicle insurance business in NJ; however, it controlled 4 affiliated companies which were authorized to transact commercial motor vehicle insurance but not private passenger insurance business in NJ.
The issue on appeal was whether the NJ Deemer Statute , N.J.S.A. 17 :28-1.4 applied based on the control of an affiliate company authorized to transact commercial motor vehicle insurance business in NJ. The Appellate Division found that the Deemer Statute applied, and therefore that the plaintiff was subject to the NJ verbal threshold limitations on his right to sue for injuries.
Please contact Robert Ball with any questions.
http://www.judiciary.state.nj.us/opinions/a4557-08.pdf
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In Flomerfelt v. Cardiello, the plaintiff attended a party hosted by the defendant where she became unresponsive and was ultimately treated for kidney and liver failure. A hospital toxicology report identified alcohol, marijuana, opiates and cocaine in her system. No expert determined the levels of each substance in plaintiff's system however, the hospital found the injuries "probably secondary to drug overdose." The defendant's expert suggested her injuries may have resulted from prior drug abuse.
The defendant sought coverage under his parents homeowners policy which was denied, with the carrier relying on an exclusion in the policy for claims "arising out of" the use, transfer or possession of controlled dangerous substances. The trial court found coverage, the Appellate Division reversed and the New Jersey Supreme Court reversed and remanded finding the insurer's use of the phrase " arising out of" with no further qualification, made the exclusion ambiguous, requiring an interpretation consistent with the insured's reasonable expectation. In remanding, the Court noted that the coverage issue could not be resolved because the record failed to answer questions about the sequence of events leading to the plaintiff's injuries and the cause or causes of her injuries.
http://www.judiciary.state.nj.us/opinions/supreme/A409FlomerfeltvCardiello.pdf
Please contact Robert Ball with any questions regarding this post at rball@wcmlaw.com.
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In a recent unpublished New Jersey appellate decision, the court held that a plaintiff was barred from bringing a claim for UM benefits against his carrier under the entire controversy doctrine. Plaintiff, Harvey Johnson brought suit against defendant, Richard Dominques for injuries sustained in a motor vehicle accident. During the course of that litigation, plaintiff made a statement in court claiming that a " phantom vehicle" contributed to the incident. At the conclusion of the trial, the jury found no cause for action, which was affirmed on appeal.
One year after the incident, the plaintiff filed a claim against his insurer, Allstate , for UM benefits. Allstate moved for summary judgment, arguing that the plaintiff's claim was barred by the entire controversy doctrine and the motion was granted. On appeal, the court found that Allstate met the burden of demonstrating inexcuseable conduct by the plaintiff, as well as substantial prejudice. The court also held that the plaintiff failed to provide prompt notice of the claim, and that he knew at the time of the accident that the phantom vehicle could be implicated in the collision. As such, the court upheld dismissal of the claim against Allstate.
http://www.judiciary.state.nj.us/opinions/a4757-08.pdf
Thank you to Heather Aquino for this post.
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The New Jersey Automobile Insurance Cost Reduction Act ( AICRA) bars uninsured drivers from suing for personal injuries sustained in automobile accidents. In Aronberg v. Tolbert, the trial court granted summary judgment to the defendant's dismissing a survival action brought by an uninsured decedent's estate, but denied summary judgment as to the wrongful death action brought by his heirs. The Appellate Division affirmed, concluding that while the AICRA statutory bar may apply to survival actions brought on behalf of the decedent, it did not apply to a wrongful death action seeking damages for losses suffered by the decedent's heirs.
http://www.judiciary.state.nj.us/opinions/a4896-08.pdf
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In Kusimba v. S & J Enterprises, the New Jersey Appellate Division affirmed the dismissal of plaintiff's claim for coverage against Essex Insurance Company. The Court found the "PRODUCTS / COMPLETED OPERATIONS HAZARD EXCLUSION' in the policy to be a clear, prominent and unambiguous exclusion, therefore enforceable. Coverage for plaintiff's claim was excluded because plaintiff's bodily injury took place away from the insureds premises ( motor vehicle accident) and arose out of the insureds work ( alleged negligent repair of brakes). The Court also found that Essex properly reserved its rights.
http://www.judiciary.state.nj.us/opinions/a3235-08.pdf
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In Smithson v. Garcia, the Appellate Division reversed the denial of a new trial on damages where the jury found that plaintiff had sustained a permanent injury meeting the verbal tort threshold, but awarded nominal damages of one dollar. The Court found it clear that plaintiff's permanent injury stemmed from 2 herniated discs attributable to the motor vehicle accident and concluded that allowing the jury's one dollar damages award to stand would be manifestly unjust under the circumstances.
http://www.judiciary.state.nj.us/opinions/a2222-08.pdf
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In Growney v. Glassman, plaintiff appealed from summary judgment and a denial of reconsideration based on plaintiff's failure to satisfy the verbal threshold. Plaintiff's medical expert changed his mind concerning the permanency of plaintiff's injuries after summary judgment was granted , citing an examining physician's note that "there appears to be a mildly displaced fracture in the sacrum". The Appellate Division held that the note fell short of the standard for admissable testimony, which must be based on reasonable medical certainty or probability. Further, since the information was available before summary judgment was decided, it failed to provide an appropriate basis for reconsideration.
http://www.judiciary.state.nj.us/opinions/a2820-08.pdf
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In Credit Suisse First Boston v. Lehman, et al, the plaintiff's had sought in excess of $5.5 million in damages from an insurance broker represented by WCM partner, Robert Ball, and a wholesaler. Plaintiffs alleged that the insurance broker and wholesaler failed to procure the appropriate insurance policies to cover a New Orleans hotel owned by Credit Suisse which was the subject of multiple mold claims.
After a 6 week trial, the jury found the insurance broker negligent , but that the negligence did not proximately cause any alleged damages. On appeal , the New Jersey Appellate Division affirmed the verdict finding no error in the jury charge, " little question" that the insurance policies procured required the carrier to defend and indemnify Credit Suisse, and that Credit Suisse's decision to settle the underlying claims without suing the insurance carrier " highly questionable". The latter point had been the basis of WCM's lack of proximate cause argument to the jury.
If you have any questions regarding this trial or appeal , please contact Robert Ball in our New Jersey office.
http://www.judiciary.state.nj.us/opinions/a2031-08.pdf
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In County of Bergen Employee Benefit Plan v. Horizon Blue Cross and Blue Shield Of New Jersey, the Apellate Division held that under the Collateral Source Rule, a county with a self insured benefits plan for its employees is not entitled to pursue a subrogation action to recover medical expenses the plan paid to its insured. The insured was a county employee who brought personal injury/ medical malpractice claims against third party tortfasors. In Perreira v. Rediger, the Court held that the collateral source rule, N.J.S.A. 2A:15-97, barred the plaintiff's healthcare carrier from recovering medical expenses by reimbursement or subrogation, with limited exception. The found that nothing in Perreira suggested that there was a statutory exception for a self insured municipality.
Please contact our New Jersey office with any collateral source rule questions.
http://www.judiciary.state.nj.us/opinions/a0616-09.pdf
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In Kent Motor Cars, Inc. v. Reynolds and Reynolds, the New Jersey Appellate Division held that the trial court erred in dismissing a successive action since the defendant failed to establish that it was substantially prejudiced by the plaintiff's failure to comply with its Rule 4:5-1 ( b) notice obligations.
Rule 4:5-1 (b) requires that a party provide notice it its first pleading of the names of other potentially liable parties. The failure to comply with this notice can result in dismissal if the failure to provide notice was inexcusable and the undisclosed parties right to defend the succesive action was substantially prejudiced.
The Court found that the undisclosed defendant was not in a worse position defending the successive claim than it would have been in defending the first action.
www.judiciary.state.nj.us/opinions/a5246-07.pdf
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