In New Jersey, a plaintiff injured in a motor vehicle accident must prove by a preponderance of the evidence that he/she suffered a permanent injury within the meaning of the limitation on lawsuit option of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8(a). The failure to do so bars a plaintiff’s recovery.
On March 5, 2019, the New Jersey Appellate Division, in an unpublished opinion, affirmed a jury’s unanimous verdict that plaintiff Boguslaw Krzak did not suffer a permanent injury within the meaning of the limitation no lawsuit option under AICRA. Borguslaw Krzak v. Joseph Faso, Superior Court of New Jersey, Appellate Division, Docket No. A-2588-17T1, (Decided March 5, 2019). The jury had found that defendant’s negligence was the proximate cause of the accident but that plaintiff did not sustain a permanent injury proximately caused by the accident.
In Krzak, plaintiff, age 71 at the time, claimed that the defendant who was stopped in a left turn only lane on November 7, 2014, left that lane and struck the driver’s side of plaintiff’s vehicle causing injuries to his neck, back, left shoulder and left knee. He further claimed that his daily activities were restricted and that he was unable to return to work. Mr. Krzak did not seek medical treatment on the date and his car was not towed from the scene. He went to the emergency room two days later and began receiving chiropractic treatment two months after the accident.
Plaintiff’s trial testimony was impeached regarding the alleged damage to his vehicle, his claim of the level of pain as a result of the accident, whether the epidural injections that he received provided relief, whether his doctors had recommended surgery, whether he was working full time at the time of the accident and whether he had continued his volunteer activity after the accident.Plaintiffs’ and defendant’s medical experts presented differing diagnoses and causes of Mr. Krzak’s medical conditions. Plaintiffs’ medical experts testified that the injuries sustained as a result of the accident were permanent while the defense medical expert maintained that plaintiff’s conditions were due to age-related degenerative change and had not been proximately caused by the accident.
Prior to opening, plaintiffs moved in limine to have the issue of whether plaintiff sustained a permanent injury decided as a matter of law. The trial court denied the motion without prejudice and again when plaintiff renewed the motion for a directed verdict. On appeal, the Appellate Division reviewed the standards for reviewing a trial court’s decisions on motions in limine returnable on the date of trial, directed verdicts and the close of all evidence, judgment not withstanding the verdict and for a new trial. It noted that in limine motions that are summary judgment motions “have been repeatedly condemned”. Op. at p. 13. It found no reason to disturb the trial court’s determinations regarding these motions.
In affirming the jury verdict, the Appellate Division held that conflicting medical evidence was more than sufficient to justify submission to a jury. Op. at p. 19.For further information, contact Joe Gallo in our Florham Park office at (973) 822-1110.