In Severino v. Malachi, the Appellate Division of the Superior Court of New Jersey recently held that two individuals who had just exited a vehicle and were struck and killed while crossing the street were not entitled to underinsured motorist (“UIM”) coverage because they were no longer “occupying” their vehicle.  The law related to underinsured motorist coverage is constantly changing.  Therefore, if you have been involved in an automobile accident in New Jersey where underinsured motorist coverage is an issue, you should contact a New Jersey auto accident lawyer or New Jersey personal injury lawyer for assistance.

Julio Cesar Severino and Yavalier Rodriguez drove to Jersey City in a vehicle owned by Severino’s fiancé.  When they reached their destination in Jersey City, Severino parked the vehicle on the street and exited the driver’s side.  Rodriguez exited the passenger side.  An eyewitness testified that about eight seconds after  Severino and Rodriguez exited the vehiclel, they were struck and killed by defendant’s vehicle.  The insurance policy covering the defendant’s vehicle provided coverage in the amount of $25,000 per person and $50,000 per occurrence.  Therefore, plaintiffs sought underinsured motorist coverage under the policy covering the vehicle they had been driving just before the accident. 

The underinsured motorist provision of the insurance policy covering the plaintiffs’ vehicle provided that the vehicle’s insurance policy would pay compensatory damages that an “insured” is entitled to recover from the owner or operator of an underinsured vehicle as a result of bodily injury sustained in an accident.  The policy defined “insured” as a “named insured” or a family member, and “any other person occupying your covered auto.”  The trial court held that Severino and Rodriguez were occupants of their vehicle at the time of the incident and ordered the insurance company to provide coverage.  However, the Appellate Division disagreed and reversed.

In coming to its conclusion, the Appellate Division examined several prior cases related to this issue.  The first case examined by the Appellate Division was Mondelli v. State Farm.  In that case, the plaintiff was standing next to his girlfriend’s vehicle with his arm resting on the roof of the car when he was struck by another vehicle.  In that case, the New Jersey Supreme Court held that the plaintiff was “occupying” his girlfriend’s vehicle for purposes of insurance coverage.

In Torres v. Travelers Indemnity Co., a delivery truck had delivered several packages to a warehouse where plaintiff was the manager.  Shortly after the delivery truck left, plaintiff realized that one package was missing.  Plaintiff then got in his employer’s van and followed the delivery truck.  After discovering the delivery truck parked nearby, the plaintiff exited the van and asked the driver if he could look around in the truck for the missing package.  Plaintiff then climbed into the truck and found the package.  While walking back to his van, plaintiff was struck by another vehicle.  Again, in that case, the New Jersey Supreme Court held that plaintiff was “occupying” his employer’s van for purposes of underinsured motorist coverage.   

The Appellate Division distinguished the present case by holding that Severino and Rodriguez did not leave the vehicle in order to perform some essential task and they were not touching the vehicle at the time of the accident.  Rather, the Appellate Division held that Severino’s and Rodriguez’s use an occupancy of the vehicle had essentially ended.  Therefore, the Court held that they were not covered by the underinsured motorist insurance policy covering the vehicle they were driving just eight second prior to the accident.

This Appellate Division decision is particularly atrocious when viewed in conjunction with the use of step-down provisions by insurance companies and our courts’ jurisprudence related to step-down provisions.  Step-down provisions provide that if a plaintiff is entitled to coverage under an underinsured motorist policy applicable to a vehicle that the plaintiff is driving, but is concurrently covered by another underinsured motorist policy, the coverage is “stepped-down” to the limit of the lower policy. 

So, for example, if a plaintiff is driving a company vehicle covered by an underinsured motorist policy that provides for $1 million in coverage and is involved in a serious accident where the defendant’s insurance is not sufficient to cover compensatory damages, the amount of coverage provided by the underinsured motorist policy can be stepped-down to the limit on a personal policy applicable to the plaintiff covering a vehicle that is sitting in the plaintiff’s driveway at home, and had no involvement with the accident whatsoever.  Therefore, if the plaintiff has a policy providing for $100,000 in underinsured motorist coverage on his personal vehicle, the underinsured motorist policy covering the business vehicle that was actually involved in the accident is only required to pay a maximum of $100,000, even though the policy limit is $1 million. 

In the present case, the Appellate Division refused to look to the insurance policy covering the vehicle that the plaintiff’s had just exited eight seconds prior to the accident to provide underinsured motorist coverage to the plaintiffs.  However, in the context of step-down provisions, our courts will shamelessly look to policies covering vehicles that were not even involved in the accident at all to lower the limit of the amount of money an insurance company has to pay to the victim of an accident.  Anyone involved in an automobile accident in New Jersey is facing an uphill battle with insurance companies that will strenuously fight as long and hard as possible to deny coverage and unsympathetic courts.  A New Jersey personal injury lawyer or New Jersey auto accident lawyer is essential to helping plaintiffs involved in auto accidents fight that battle.

The New Jersey Law Journal reports that a Mercer County Superior Court Judge has overturned a PIP arbitrator’s decision denying a plaintiff, called I.R. in court papers, an emergent hearing on whether her auto insurance carrier must pay for exploratory surgery.  Serious insurance issues usually arise in the context of auto accidents; therefore, anyone involved in an auto accident in New Jersey should contact a New Jersey personal injury lawyer or a New Jersey auto accident lawyer for a consultation.

I.R. was involved in an auto accident in 1999 and she suffered serious injuries to her back and neck as a result of that accident.  As a result, I.R. was required to undergo several surgeries to her neck and back, including a fusion of several vertebrae.  In 2003, I.R. was involved in another auto accident and as a result of that accident, pain again began to flare up in her beck and neck.  The pain got so bad that I.R. began to contemplate suicide.  I.R. consulted with a surgeon, who recommended exploratory surgery to determine whether the earlier spinal fusion had failed.

I.R. requested pre-certification from her auto insurance company, 21st Century Insurance, part of AIG, that they would pay for the expensive surgery, which was estimated to cost upwards of $100,000.  Her insurance company denied coverage.  Soon thereafter, I.R. filed an appeal of the denial of coverage with the National Arbitration Forum, which is New Jersey’s PIP arbitration provider.  I.R.’s lawyer requested that the case be heard on an emergent basis, which would provide a resolution within days, rather than the 6 to 8 months normally required for PIP arbitration.  I.R.’s surgeon was prepared to testify before the arbitrator that the longer the surgery was delayed, the less likely it would be successful. 

Citing the delay between the date that I.R.’s surgeon first recommended the exploratory surgery, which was in October 2008 and the date on which the request for an emergent hearing was filed, which was in February 2009, the arbitrator determined that an emergent hearing was not warranted in this case.  I.R. filed an appeal of the arbitrator’s decision in Superior Court and argued that the decision of the arbitrator was arbitrary and capricious, contrary to law, factually mistaken and a denial of due process.  The Superior Court, after determining that the decision of the arbitrator was “shocking” and “grossly insufficient,” agreed and sent the case back to the National Arbitration Forum for an emergent hearing.  The result of the emergent hearing was a decision on May 6, 2009 that the exploratory surgery was covered an I.R.’s auto insurance carrier would have to pay for the surgery.  

This case came to prominence because it highlighted some of the problems with the PIP arbitration process, which has come under attack lately because, in many cases, injured parties are forced to wait a long time for decisions on whether they can get insurance coverage for necessary treatments or diagnostic tests for their injuries.  Anyone injured in an auto accident in New Jersey should contact a New Jersey personal injury lawyer or New Jersey auto accident lawyer for assistance.

On May 7, 2009, the New Jersey Supreme Court held in Bauer v. Nesbitt, that an establishment serving alcoholic beverages to patrons does not have a duty, under the Dram Shop Act, to monitor the level of intoxication of a patron to whom the establishment is not serving alcohol.  Although the Dram Shop Act generally imposes upon tavern-keepers a duty to monitor the level of intoxication of their patrons and imposes liability on tavern-keepers for accidents caused by intoxicated patrons, where the tavern did not serve any alcohol to a patron that later causes an accident, the tavern cannot be held liable for any subsequent accidents.  If you have been injured in an accident in New Jersey, immediately contact a New Jersey personal injury lawyer or New Jersey auto accident lawyer for an analysis of your case.

In this case, plaintiff’s twenty-one year old son, James Hamby, was killed in an accident while a passenger in a car operated by Frederick Nesbitt.  In addition to suing Nesbitt directly, plaintiff also sued the C View Inn for wrongful death and survivorship asserting causes of action under both the Dram Shop Act and common law negligence.  However, discovery revealed that the Inn had never served any alcohol to Nesbitt.  Nesbitt and four other friends came to the Inn on “wing night” in order to socialize and drink.  Nesbitt was the only member of the group who was not old enough to legally purchase alcoholic beverages.  Both the waitress and the bartender knew that Nesbitt was underage, and did not serve him any alcoholic beverages or permit him to drink alcoholic beverages brought to the table.  

Nesbitt did drink alcoholic beverages before coming to the Inn.  That night, Hamby purchased a 12-pack of beer and a bottle of rum from another establishment.  Hamby and Nesbitt drank some of the beers and also took swigs from the rum bottle.  Hamby then snuck the rum bottle into the C View Inn in his pants.  While at the Inn, Nesbitt was served only coca-cola.  However, Hamby poured rum into Nesbitt’s coca-cola from the bottle he brought into the Inn without the Inn staff noticing.  The rest of the group consumed several pitchers of beer and glasses of vodka with orange juice.  When the group left the Inn, Nesbitt drove with Hamby in his car.  While driving, Nesbitt hit a guardrail on the Garden State Parkway and the car rolled over.  Hamby died as a result of injuries he suffered in the crash.

The trial court ruled in favor of the Inn on summary judgment; however, the Appellate Division reversed.  The Appellate Division held that the Inn can be held liable because it served alcohol to Hamby, who was visibly intoxicated, and because of his impaired status, he got into the car with another intoxicated driver.  In other words, had the Inn not permitted Hamby to become so intoxicated, he may have decided not to get into the car with Nesbitt, who Hamby would have known to be intoxicated.  The Supreme Court reversed the Appellate Division and dismissed the Complaint.

Initially, the Court noted that plaintiff did not assert a Dram Shop cause of action against the Inn under the theory that it served alcohol to a visibly intoxicated Hamby.  Since the plaintiff did not assert this cause of action in its Complaint, the Inn was not fairly apprised of this theory until the Appellate Division raised it sua sponte.  If a cause of action is not pled in a Complaint, it cannot “spring to life” on appellate review.  Therefore, this cause of action could not be sustained as a matter of fundamental fairness.  While the Court did leave open a remote possibility that such a cause of action could be sustained if it was properly pled, it would be unlikely to sustain a negligent-supervision cause of action against a tavern under any circumstances similar to those in this case.

The Court then noted that by its very terms, the Dram Shop Act provides the exclusive civil remedy for personal injury or property damage resulting from the negligent service of alcoholic beverages.  Under the Dram Shop Act, a server of alcoholic beverages can be held liable for an accident proximately caused by the negligent service of alcoholic beverages only when the server serves a visibly intoxicated person, or a minor, under circumstances where the server knew or should have known that the person being served was intoxicated or a minor.  The Court also noted that the Dram Shop Act was passed because taverns faced a liability insurance crisis, and so the legislature wanted to limit the circumstances under which taverns could be held liable for negligent service of alcohol.  Given the wording of the statute and the purpose for which it was passed, the Supreme Court held that a tavern cannot be held liable for an accident caused by a patron to whom the tavern did not serve any alcohol, even if that person was intoxicated.

This case illustrates the importance of proper pleadings in a personal injury action after an accident.  Anyone injured in an accident should contact a New Jersey personal injury lawyer or a New Jersey auto accident lawyer for a consultation.

In Boritz v. New Jersey Manufacturers Insurance Company, the Appellate Division of the Superior Court of New Jersey held that under the equitable doctrine of estoppel, an insurance company providing UIM coverage can be estopped from asserting a step-down provision in an insurance policy where a plaintiff justifiably relies on the UIM carrier’s consent to settle and release the tortfeasor in return for the tortfeasor’s policy limits.  This is a significant victory for plaintiffs in the auto accident context.  Because of the many complicated insurance issues that arise in auto accident cases in New Jersey, anyone who has been injured in an auto accident should contact a New Jersey auto accident lawyer or New Jersey personal injury lawyer for assistance.

In this case, plaintiff Linda Boritz was a passenger in an automobile being owned and driven by Sally Iacono.   Plaintiff was severely injured when the vehicle was struck from behind by another vehicle, driven by Monique Vinson.  Vinson’s vehicle was insured by GEICO under a policy with a $15,000 limit.  Iacono’s vehicle, in which plaintiff Boritz was a passenger, was insured under a policy with NJM with $100,000 in under-insured motorist coverage (UIM).  UIM coverage provides additional coverage to an injured party making a claim under the policy when the tortfeasor’s own policy is not enough to cover the damages suffered by the plaintiff.

An NJM representative advised plaintiff’s counsel that NJM would provide primary UIM coverage.  A few months later, plaintiff’s counsel advised NJM that GEICO had offered plaintiff the entire $15,000 of its policy to Vinson in full and final settlement of the lawsuit.  Plaintiff’s counsel sought consent from NJM to settle the case with Vinson.  Consent from the UIM carrier is necessary because, under established law, the UIM carrier can choose to decline consent to settle with the tortfeasor, pay the plaintiff the policy limit offered by the primary carrier, and then become subrogated to plaintiff’s right to recovery from the tortfeasor.  NJM consented to plaintiff’s settlement with the defendant, and plaintiff consequently accepted $15,000 from Vinson’s insurance carrier and executed a release of liability.

Plaintiff’s counsel then began to negotiate with NJM for UIM benefits.  NJM eventually offered plaintiff up to $32,023 to settle the UIM claim.  However, NJM later found out that plaintiff Boritz had an auto insurance policy with GEICO, with a UIM limit of $25,000.  NJM then sent notice to plaintiff’s counsel that it would limit the amount paid for the UIM claim to $10,000 (the difference between the $25,000 limit in plaintiff’s own UIM policy and the amount paid to plaintiff by the tortfeasor’s policy), citing a step-down provision in the policy to Iacono.  The step-down provision essentially provided that, where the claimant was not a named insured on the policy, UIM coverage would be stepped-down to the limit of any other policy under which the claimant was a named insured that provided similar coverage.  NJM argued that because plaintiff Boritz was not a named insured under Iacono’s policy, and because plaintiff Boritz was a named insured under her own auto insurance policy, the amount of coverage would be stepped-down to the limit for UIM coverage under her own policy.

Plaintiff filed a lawsuit against NJM for coverage.  Plaintiff did not challenge the validity of the step-down provision; rather, plaintiff argued that had she been aware that the NJM UIM limits would be $25,000 and not $100,000, she would not have settled with the tortfeasor, but would have sought satisfaction of any judgment against the tortfeasor from personal assets.  In analyzing this case, the Appellate Division noted that estoppel is an equitable doctrine that is designed to prevent injustice by not permitting a party to repudiate a course of action on which another party has relied to his detriment.  In this case, the Appellate Division applied estoppel, and found that plaintiff relied on NJM in two ways: first, plaintiff expected receipt of UIM benefits from NJM; and second, plaintiff chose to forego the opportunity to pursue a greater recovery from the tortfeasor based on NJM’s representations that it would provide coverage. 

In spite of the fact that NJM had a clear contractual provision in its favor, the Court noted that insurance carriers have a duty to act in good faith with an insured, and the Court has always construed the boundaries of good faith in favor of insureds.  The duty to act in good faith requires a UIM carrier to inform a claimant of a potential setoff afforded by a step-down provision before the injured party settles with the tortfeasor.  Accordingly, the Court decided that the UIM limit available to the plaintiff in this case would be $85,000 (the UIM policy limit of $100,000 under the NJM policy less the $15,000 paid to plaintiff by the settling tortfeasor).  As this case evidences, complicated insurance issues arise in the auto accident context; therefore, anyone injured in an auto accident in New Jersey should consult with a New Jersey auto accident lawyer or New Jersey personal injury lawyer.

A Monmouth County jury awarded $1.5 million to Michael Lewis of Asbury Park, NJ as compensation for serious injuries he sustained when he collided his motorcycle with a vehicle operated by Thurman Baker in the case of Lewis v. Baker, et al.   What was unique about this case was that a truck driver, David Carhuamacca of Queens, was held fifty percent liable for the incident because he waved Mr. Baker into traffic just prior to the crash.  Under New Jersey law, anyone who waves another automobile into traffic can be held liable if the car being waved into traffic causes an accident.  Anyone injured in an accident in New Jersey should contact a New Jersey personal injury lawyer or New Jersey auto accident lawyer so that all of the parties potentially responsible for the accident can be identified. 

In this  case, defendant Carhuamacca was driving his truck in the outer eastbound lane of Route 33 in Neptune, NJ.  Defendant Baker was exited the parking lot of a Dunkin’ Donuts and attempting to turn left onto the westbound lanes of Route 33.   Carhuamacca stopped and waved to Baker signalling that he was permitting Baker to cross in front of his truck so that Baker could make the left-hand turn.  Plaintiff Lewis was on his motorcycle in the inner eastbound lane of Route 33.  After defendant Baker crossed in front of defendant Carhuamacca in the outer eastbound lane, Baker proceeded to cross the inner eastbound lane.  Plaintiff Lewis, who was driving down the inner eastbound lane, crashed his motorcycle into the driver’s door of defendant Baker’s vehicle.  After plaintiff Lewis discovered from a police officer at the scene that defendant Carhuamacca had admitted to waving defendant Baker into traffic, Lewis also named Carhuamacca as a defendant in the lawsuit.

The first case in New Jersey to analyze whether a driver that waves another car into traffic can be held liable for an accident that ensues was Thorne v. Miller, decided in the Law Division by Judge Wells in 1998.  Under facts substantially similar to the Lewis v. Baker case, Judge Wells framed the issue as whether a “waving driver” owes a duty of care to injured parties when an accident occurs after the “waving driver” undertakes a gesture to facilitate the “waved driver’s” course of passage. 

Judge Wells noted that an Ohio court that examined the same issue determined that there was no duty because the act was one of courtesy, not obligation.  In rejecting this analysis, Judge Wells stated: “I reject the notion that the court should not impose a duty of care on gesturing drivers because it would tend to lessen civility, in general, on the highways, a serious problem these days much in the public press.  But encouraging civility at the expense of driving safety is not, in my opinion, sound public policy.”  Instead, Judge Wells applied the ordinary legal principle of determining whether a duty of care exists: foreseeability of harm. 

Judge Wells noted that it is reasonably foreseeable that engaging in gestures to facilitate the flow of traffic could result in an accident.  It is also foreseeable that another driver would rely on a gesture when entering traffic.  Finally, it is reasonably foreseeable to a driver in the outer lane of traffic on a road with two lanes for travel in the same direction that another vehicle may be approaching from the rear in the inner lane.  Therefore, under these circumstances, principles of foreseeability favor imposing a duty of care on the gesturing driver.  The Court also noted that the duty to be imposed should be weighed against the risk of the harm and the practicality of preventing that harm.  It is clear that driving is dangerous and there is a great risk of harm.  A gesturing driver can very easily prevent harm from his gesturing by either being reasonably certain that the gesture will not result in harm or by not gesturing at all.

New Jersey drivers are all too familiar with the disruptions caused in traffic by drivers attempting to engage in acts of courtesy.  While road rage and other acts of discourtesy are problems on the road, Judge Wells was right that courtesy should not come at the expense of safety.  The first and foremost concern of all drivers on New Jersey roads should be their own safety and the safety of other motorists and pedestrians.  Anyone injured in an auto accident in New Jersey should contact a New Jersey personal injury lawyer or New Jersey auto accident lawyer for assistance.

On April 15, 2009, Governor Jon Corzine signed A-3069/S-2314 into law.  Known as “Kyleigh’s Law,” named after Kyleigh D’Alessio, a Long Valley teen who died in an auto accident in 2006, the law will require teen drivers who held a learner’s permit or provisional license to display a removable, transferable, decal on the front and rear of any vehicle they are driving so that police can identify teen drivers.  Theoretically, this law is supposed to enable police to better enforce regulations limiting the driving privileges of teen drivers, such as the limitation that teen drivers may not drive between the hours of 11:01 p.m. and 5:00 a.m., or the regulation that teen drivers may only have one passenger.

Critics of the law have argued that it unfairly targets a particular group and will only be used as a revenue driver by municipal police.  Others have argued that the law also puts more teen drivers on the road by limiting the number of passengers a teen driver can carry at any given time.  It is unclear whether the law will have any effect whatsoever on the number of accidents caused by inexperienced drivers. 

The law will not go into effect until April 2010.  This will give the Commissioner of the Motor Vehicle Commission time to design and issue the decals to permit holders and provisional drivers.  Drivers who will be required to display the decals will have to pay for them; however, the Commissioner will not be permitted to charge more for the decals than the actual cost of printing and distributing the decals.  If you have been charged with a traffic violation, disorderly person’s offense, or indictable offense in the State of New Jersey, contact a New Jersey criminal defense lawyer for assistance.  If you have been involved in an auto accident in New Jersey, contact a New Jersey auto accident lawyer for a case evaluation

On April 2, 2009, the Appellate Division in Riley v. Keenan, et al., considered the issue of whether an employer can be held liable for an auto accident caused by a tired employee that fell asleep at the wheel while driving home.  While the Appellate Division did not find that the defendant’s employer could be held liable under the circumstances of this case, the Court did leave open the possibility that an employer could be held liable for an accident caused by a sleep-deprived employee under circumstances where the employer’s actions create a foreseeable risk that the employee’s ability to drive safely would be impaired.  Any accident victim in New Jersey should contact a New Jersey personal injury lawyer or New Jersey auto accident lawyer for an evaluation of their case.

In this case, defendant John Keenan lost control of his automobile while driving in the westbound lane of Route 40 in Pittsgrove.  Defendant’s vehicle swerved into the eastbound lane and crashed head-on into a vehicle driven by plaintiff Laurie Riley.  The accident caused permanent and severe injuries to Laurie Riley.  A blood alcohol test conducted on the night of the accident revealed that defendant Keenan had a blood alcohol level of .178.  An expert testified at trial that defendant Keenan’s blood alcohol level at the time of the accident would have been approximately .16. 

Defendant worked as a truck driver, and his shifts would normally start at 3:30 a.m. and finish approximately 10 hours later, within the maximum driving time mandated by federal regulations.  However, on many occasions, after finishing his driving shift, defendant would do mechanical work on trucks at his employer’s yard, for which he was paid overtime.  The defendant testified that in the month that the accident occurred, defendant had been working 120 to 130 hours per week; however, the defendant had not worked any mechanic hours during the week prior to the accident.  On the day of the accident, after working a 10-hour shift, defendant went to a local bar and consumed several beers. 

In addition to seeking recovery from the bars that served alcohol to defendant under New Jersey’s dram shop laws, the plaintiffs also argued that defendant’s employer should be held liable because the sleep deprivation suffered by defendant due to his long working hours created a foreseeable risk that defendant’s ability to drive home would be impaired.  The plaintiff relied on the testimony of a fatigue expert, who opined that the combination of defendant’s intoxication with fatigue caused the accident, and that the confluence of these two factors acted to impair defendant’s ability to drive more than either condition could on its own.

In analyzing this case, the Appellate Division first noted that no New Jersey court has ever permitted liability to be imposed on an employer for an accident caused by a fatigued employee while driving home from work.  However, the Appellate Division noted that other states that have dealt with this issue have found liability in certain circumstances.  For example, an Oregon court held an employer liable for an accident caused by an employee.  In the Oregon case, the employee was a high school student who worked a 17 hour shift in violation of the employer’s policy that high school students should not work more than one shift if working past midnight.  In another case, a West Virginia court found an employer liable for an accident caused by a nineteen-year-old employee who fell asleep while driving home after working 27 straight hours.  

The Appellate Division noted that the most important factor in all cases that have dealt with this issue was whether the employer owed a duty to the plaintiff because the employer had created a foreseeable risk of harm.  In cases where there was a long period of time between the end of the employee’s shift and the accident, courts have generally found that there is no foreseeable risk of harm, and therefore no liability.  Conversely, in cases where the risk of harm was foreseeable to the employer, a court might impose liability on the employer.  After applying this formulation to the facts in this case, the Appellate Division found no basis for imposing liability.  Nevertheless, the Appellate Division left open the possibility that, under the right circumstances, New Jersey courts could impose liability on an employer for an accident caused by a tired employee who falls asleep while driving home from work.

On March 25, 2009, the Supreme Court of New Jersey decided the case of Penn National Ins. Co. v. Costa.  In this case, the plaintiff, Ernest Arians, was injured when he slipped and fell on ice in defendant Frank Costa’s driveway.  The defendant was the owner of a mechanic shop where he repaired large trucks.  The defendant’s home was located right next to his shop.  The plaintiff was employed by the defendant as a mechanic.  While the defendant was working on a pickup truck in the driveway of his house, the plaintiff walked on to the driveway and asked the defendant if he needed any help.  The defendant replied that he did not need any help and continued working on the truck.  As plaintiff turned to walk away, he slipped on ice located in the driveway and hit his head on a car jack that was being used on the truck.

The big issue that arose in the lawsuit was whether the plaintiff’s accident should be covered by the defendant’s homeowner’s insurance or the auto insurance that covered the truck.  The Supreme Court decided that because there was not a “substantial nexus” between plaintiff slipping and falling on ice and the defendant’s use of the truck, the defendant’s homeowner’s insurance should provide coverage for this incident.  In many personal injury cases, complicated issues of insurance coverage arise.  A New Jersey personal injury lawyer may be able to help you locate insurance and get compensation for injuries suffered in an accident.

Under New Jersey law, auto insurance coverage exists to protect “against loss resulting from liability imposed by law for bodily injury, death and property damage sustained by any person arising out of the ownership, maintenance, operation or use of a motor vehicle.”  In order to determine that an injury arises out of the “ownership, maintenance, operation or use” of a motor vehicle, there must be a “substantial nexus” between one of these criteria and the injury for which coverage is being sought.  The Court first noted that a “substantial nexus” is a lower requirement than “proximate cause” as that term is understood in the strict legal sense.  Instead, the Court noted that the inquiry should be whether the negligent act which caused the injury, although not foreseen or expected, was in the contemplation of the parties to the insurance contract a natural and reasonable incident or consequence of the use of the automobile.

In the present case, the Court determined that there was no “substantial nexus” between the defendant’s maintenance of the truck and plaintiff’s accident, because the negligence that caused the accident had nothing to do with the defendant’s maintenance of the truck.  Rather, the negligence that caused the accident was the defendant’s failure to keep his driveway free and clear of ice and snow.  In other words, the defendant was not negligently performing maintenance on the truck when the accident occurred.   The Court reasoned that the fact that plaintiff struck his head on a jack that was being used as part of the maintenance of the car was entirely incidental happenstance to the maintenance activity that the defendant was performing on the truck. 

With this decision, the Supreme Court made it clear that it is the nature of the negligent act that is most important in determining the source of insurance coverage, not necessarily the nature of the activity being performed.  If you have been injured in any kind of accident, contact a New Jersey personal injury lawyer for assistance.  For additional information in the area of personal injury, Nace Naumoski has also written articles on mistrials due to undue influence of a juror,  lawsuits proceeding against drug manufacturers, and verbal threshold hurdles.

The Appellate Division reversed an $876,000 personal injury verdict today in Barber v. ShopRite because, among other reasons, State Senator Robert Martin’s presence on the jury resulted in an irregular influence on other jurors.  The plaintiff suffered a serious neck injury after slipping and falling in a ShopRite supermarket and was awarded $876,000 in compensation for her injuries.

During voir dire, Senator Martin disclosed that he was a New Jersey State Senator, a full-time professor of law, and a practicing lawyer.  Nevertheless, neither the attorney for the plaintiff nor the attorney for the defendant objected to Senator Martin as a juror.  Senator Martin was empanelled on the jury and made foreman.

After the trial concluded, Senator Martin wrote an article in the New Jersey Law Journal describing his experiences as a juror.  Senator Martin reported in the article that, during the course of deliberations, other jurors relied on him to explain abstract legal concepts such as “proximate cause.”  The Senator also stated in the article that “I am convinced that in our case my opinions swayed other jurors and were extremely influential in the final outcome.”  After Senator Martin and other jurors were called in for a hearing to determine whether the Senator exerted any undue influence on the jury, Senator Martin testified that he overstated his influence on the jury in the article.  However, some of the other jurors testified that they were influenced by Senator Martin, and one juror testified that she felt that she did not render an impartial verdict.

The Appellate Division examined the law related to jury irregularities and noted that a new trial should be granted if the “irregular matters” “could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court’s charge.”  The Court further noted that the test is not whether the “irregular matter” did actually influence the jury, but whether they could have influenced the jury.  Given the facts that all of the jurors knew that Martin was a Senator and a lawyer, several commented that he was particularly influential in the discussion on damages (Martin proposed the dollar amount that was eventually awarded by the jury), and jurors relied on Martin to explain abstract legal concepts rather than asking the Court to explain, the Appellate Division decided to remand the case for a new trial.

Contributing to the Court’s decision to remand the case were also several inappropriate comments made by the plaintiff’s lawyer during the trial.  The plaintiff’s lawyer improperly hinted to the jury that certain business records were not produced to the plaintiff because the defendant had hidden those records.  However, the plaintiff did not establish that those records actually existed.  The plaintiff’s lawyer also made comments during closing arguments that certain products were present in the aisle where plaintiff slipped without having established a foundation during the trial.

For additional articles by New Jersey personal injury lawyer Nace Naumoski on the topic of personal injury, see the Jersey Lawyer articles on lawsuits proceeding against drug manufacturers, and verbal threshold hurdles.

The Supreme Court of the United States decided the case of Wyeth v. Levine today and held that injured plaintiffs can bring lawsuits against drug manufacturers based on inadequate warning theories even where the FDA has approved the warning.  A personal injury lawyer can be indispensable in helping injured persons take on huge drug manufacturers, and this case is a significant help in that fight.

Plaintiff Diana Levine’s arm had to be amputated after she was injected with Phenergan, a drug manufactured by New Jersey-based Wyeth.  The clinician who injected Ms. Levine used the “IV-push” method to inject the drug directly into Ms. Levine’s artery, instead of the safer “IV-drip” method, where the drug is injected through a catheter inserted in the patient’s arm after passing through a hanging bag of saline solution.  However, the warning for the drug, which is provided to physicians, did not state that this method of injection involved significant risks to the patient.  After being injected, Ms. Levine developed gangrene and her arm had to be amputated.

Ms. Levine brought a lawsuit against Wyeth.  Her lawyers argued that the warning provided with the drug did not adequately instruct clinicians on the dangers of using the “IV-push” method and did not instruct clinicians to use the safer “IV-drip” method, instead of the “IV-push” method.  Ms. Levine’s lawyers also argued that the risk of gangrene and amputation was so great, that Phenergan was not safe for direct intravenous injection.

Wyeth argued that because the federal Food and Drug Administration (“FDA”) approved Wyeth’s label for Phenergan, the plaintiff should not have been permitted to argue that the warning was inadequate and individuals states cannot impose a duty on the company to provide a stronger warning than the warning required by the FDA.  Wyeth based this argument on the federal government’s power to preempt state law in areas where the federal government is permitted to legislate and the federal government has expressed an intent to preempt the state law.  Essentially, Wyeth argued that: (1) if it had complied with Vermont’s state laws regarding labeling of Phenergan (which required a stronger warning than federal law), it would be violating federal law; and (2) requiring it to comply with Vermont’s state law duty to provide a stronger warning than the warning required by the FDA would obstruct the purposes and objectives of the federal drug labeling laws.

The Supreme Court rejected both of these arguments.  With respect to Wyath’s first argument, the Supreme Court cited a regulation that permits a drug manufacturer to use a stronger warning without prior FDA approval as long as it makes a supplemental application to the FDA at the same time as the label change.  With respect to Wyeth’s second argument, the Supreme Court held that Congress has not expressed an intent to invalidate state laws that impose a duty on drug manufacturers to include a stronger warning that the warning required by the FDA.  In the case of the federal laws governing the FDA, Congress specifically stated that state law would only be preempted, and therefore made invalid, where there was a “direct and positive conflict” with the federal law.  As further support for the position that the federal government did not intend to invalidate state laws related to inadequate warnings, when the federal government last amended laws related to prescription drugs and medical devices, the federal government specifically stated that it was preempting state law related to medical devices, but made no such statement related to prescription drugs.  Therefore, the Supreme Court reasoned, state laws that require stronger warnings do not obstruct the purposes of federal law.

This case is a significant victory for injured parties seeking compensation for their injuries from drug manufacturers.  This case is also a significant victory for the rights of individual states to require stronger warnings from drug manufacturers and to hold drug manufacturers accountable when their failure to include a stronger warning results in an injury.  If you have suffered an injury from the use of a prescription drug, contact a New Jersey personal injury lawyer to help you analyze whether you can seek compensation from the drug manufacturer.