Every insured person in New Jersey is subject to either a “tort threshold” or “no tort threshold.” The tort threshold is a provision in an insured’s own policy that, in exchange for a reduced premium, bars a plaintiff’s right to sue unless he or she sustained an injury as described by statue. Because AICRA made significant changes in the standard and procedures for meeting the threshold, the first question for an attorney signing up a new client is whether the plaintiff’s policy was purchased or renewed on or after March 22, 1999, thereby falling under the new law.
What is a tort?
The word tort is derived from the Latin TORTUS which means twisted. Hundreds of years ago in England it was synonymous with the word wrong. Later on it became used solely in the legal community for a civil wrong. As a result of that civil wrong, one can seek compensation in a court for damages.
Scope of tort law
Included under the umbrella of torts is a group of civil wrongs that range from, direct interference with a person, (assault, battery etc.) or interference with property rights, or interference with property rights (trespass, conversion), to various forms of negligence and disturbances of intangible interest. But there is no necessity that a tort have a specific name or fit into a predetermined category. Courts of first impression are constantly recognizing new causes of action where none previously existed. Many tortious acts are held actionable although they could not be fitted into any of the excepted categories that existed when they arose: for example intentional infliction of mental suffering, invasion of privacy, inflection of prenatal injuries, and alienation of affections. The law of torts is ever changing, its development is continuous; society changes torts when it becomes clear that the plaintiff interest or entitled to legal protection against certain conduct by the defendant. The fact that the claim is novel will not bar a court from fashioning a remedy.
The tort threshold that exists for pre-AICRA policies is known at the “verbal threshold.” In order to have a right to sue, a plaintiff subject to the verbal threshold has to demonstrate that he or she suffered on the following injuries:
- Type I: Death;
- Type II: Dismemberment;
- Type III: Significant disfigurement;
- Type IV: A fracture;
- Type V: Loss of a fetus;
- Type VI: Permanent loss of use of a body organ, member, function or system;
- Type VII: Permanent consequential limitation of use of a body organ or member;
- Type VIII: Significant limitation of use of a body function or system: or
- Type IX: A medically determined injury or impairment of a non-permanent nature that which prevents the injured person from performing substantially all of the material acts which constitute that person’s usual and customary daily activities for not less than 90 days during the 180 days following immediately following the occurrence of the injury or impairment.
For Types VI through VII, a plaintiff in order to survive summary judgment must meet a two-prong subjective/objective test that requires the plaintiff (1) to submit objective, credible medical evidence of an injury that is casually related to the plaintiff’s current limitations, and (2) to show that the injury, subjectively, has had a serious impact on the plaintiff’s life. Oswin v. Shaw, 129 N.J. 290, 318-20 (1992).
Pursuant to AICRA, the “verbal threshold” of the former statute has been replaced by a new “limitation on lawsuit option.” N.J.S.A. 39:6A-8a. Under the new lawsuit limitation, the nine former categories of injury have been replaced by the following six categories of injury, one of which must be shown in order to meet the lawsuit threshold:
- Significant disfigurement or significant scarring;
- Displace fractures;
- Loss of a fetus; or
- A permanent injury, within a reasonable degree of medical probability, other than scarring or disfigurement.
The most notable substantive changes in the law are that (1) under the former law, any fracture would vault the threshold, whereas only a displaced fracture is now a qualifying injury; (2) former injury Types VI, VII, VIII have been consolidated into one “permanent injury” classification; and (3) the former Type IX injury, allowing recovery for an injury that substantially disables an injured person for 90 of the 180 days following an accident, has been eliminated, thereby barring recovery for any non-permanent soft-tissues injury.
In addition to the foregoing substantive changes, AICRA has also created a procedural requirement for meeting the lawsuit limitation. Specifically, the Act requires the plaintiff to provide the defendant with a doctor’s certification that the plaintiff has sustained “one of the injuries described in the statute.” N.J.S.A. 39:6A-8a. The statute on its face requires the certification for all six categories of injury, including death. Id. See Thomosson v. McQuown, 358 N.J. Super. 64 (Law Div. 2002)(holding claim of disfiguring scar subject to physician certification requirement). The statute defines a permanent injury as existing 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.” Id.
The certification must be “provided to defendant” within sixty days following defendant’s filing of an answer; however, the court, for good cause shown, may grant one sixty-day extension of time in which to file. Id. Failure to timely serve a physician’s certification will result in a dismissal of the case without prejudice. Watts v. Camaglian, 344 N.J. Super. 453,468 (App. Div. 2001). Where a defendant moves for dismissal after the expiration of the statute of limitations, however, the effect is to bar the refilling of the complaint. The courts have determined that a plaintiff’s claim may be saved from such a dismissal by applying equitable doctrines such as equitable estoppel, see Hernandez v. Stella, 359 N.J. Super. 415 (App. Div. 2003); Konopka v. Foster, 356 N.J. Super. 223 (App. Div. 2002), or substantial compliance, see Casinelli v. Manglapus, 357 N.J. Super. 398 (App. Div. 2003). Notwithstanding, the best practice to avoid a potential dismissal of a client’s claim is to defer filing until a physician’s certification is obtained and attach a physician’s certification to the Complaint.
The certification is a procedural mechanism designed to defer fraudulent claims. Rios v. Szivos, 354 N.J. Super. 578 (App. Div. 2002). Supplying a physician’s certification in a timely manner is necessary but not sufficient to defend dismissal of a claim based on the lawsuit limitation. In addition, a plaintiff must continue to satisfy the two-prong objective/subjective test described above, in the discussion of former verbal threshold. See Rios, supra, 354 N.J. Super. 578 (holding two-part subjective/objective test continues to apply under the new lawsuit limitation); James v. Torres, 354 N.J. Super. 586 (App. Div. 2002) (same).
The certification must be signed by either the licensed treating physician or “a board-certified physician to whom the plaintiff was referred by the treating physician.” Id. A “physician,” for purposes of the statute, is a physician as defined by N.J.S.A. 45:9-5.1. The Law Division has held that a chiropractor may provide the necessary certification. Olarte v. Crocker, __N.J. Super.__ 2002 WL 32086768 (Law Div. 2002); Pensabene v. Straus, 342 N.J. Super. 196, 201 (Law Div. 2001). In the absence of more authoritative decisions, it remains wise, if possible, to obtain a certification from a medical doctor.
The certification must state, under penalty of perjury, that the plaintiff has sustained one of the “injuries” described in the statute. N.J.S.A. 39:6A-8a. It must be based on and specifically refer to objective clinical evidence, “which may include medical testing.” Id. Any testing relied upon, however, must have been performed in accordance with the medical protocols set forth in N.J.S.A. 39:6A-4, discussed below. Further, the certification may only rely upon diagnostic tests that have been deemed “valid” pursuant to N.J.S.A. 39:6A-4.7, see N.J.A.C. 11:3-4.5(b), discussed below. Finally, the tests may not be “experimental in nature,” nor may the results of such diagnostic testing rely entirely on “subjective patient response. N.J.S.A. 39:6A-8a.
The Act provides for civil and criminal penalties against physicians who fraudulently misrepresent the nature of a patient’s injuries and his/her entitlement to benefits. N.J.S.A. 39:6A-15.
Whether under the former verbal threshold or the new lawsuit limititation, N.J.S.A. 39:6A-8.1 provides that an election of the tort option pursuant to N.J.S.A. 39:6A-8 “shall apply to the named insured and any immediate family member” residing in the named insured’s household. The statute defines an “immediate family member” as “the spouse of the named insured and any child of the named insured or spouse residing in the named insured’s household, who is not named insured under another automobile insurance policy.” In addition, all basic and special policyholders are subject to the lawsuit limitation. N.J.S.A. 39:6A-3.1; N.J.S.A. 39:6A-3.3.
When the defendant was operating a commercial vehicle, however, the plaintiff may not be subject to the threshold under his or her policy. But see Vamvikidis v. Peters, 327 N.J. Super. 287 (App. Div. 2000) (holding that Mercedes Benz owned by corporation and used strictly in pursuit of corporate business was not a commercial vehicle outside the scope of the no-fault law, noting definition of “private passenger automobile” includes “vehicles of a private passenger types ‘owned and used in business pursuits’”). That is so because in order for the threshold to apply, there are two requirements: (1) the plaintiff must be subject to the threshold and (2) the defendant must be exempt as the owner of a private passenger automobile that carries PIP. Thus, the tort threshold generally applies if:
- the defendant is the owner, registrant, operator or occupant of a private passenger automobile or motorbus and therefore is required to carry PIP coverage, and
- the plaintiff is named insured who has elected the tort option, or a resident spouse, child, or child’s spouse of that named insured and is either
- required to maintain PIP coverage as the owner of an automobile registered or principally garaged in this State, or
- entitled to receive PIP benefits as a named insured, resident family member, or occupant, permissive user, or person injured as a pedestrian by the insured vehicle.
See Vamvikidis v. Peters, 327 N.J. Super. 287 (App. Div. 2000); Beaugard v. Johnson, 281 N.J. Super. 162, 167 (App. Div. 1995); Weiss v. Thomas, 274 N.J. Super. 3, 41-42 (App. Div. 1994).
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