Question: My husband has a brain injury and a fractured leg from a car accident that happened in Marlton, NJ. We have verbal threshold on our car insurance policy. Does that mean we can’t sue the other driver for my husband’s injuries?
Answer: No, it does not. Though verbal threshold affects an insured driver’s ability to sue for non-economic damages, such as pain and suffering, there are exceptions. New Jersey law provides that if an injured individual sustains certain types of injuries, he may still sue for non-economic damages despite the fact that he has verbal threshold. Those injuries include:
(3) loss of a fetus;
(4) significant disfigurement or scarring;
(5) displaced fractures; or
(6) permanent injury.
You stated that your husband suffers from a fracture in his leg and brain injury. If your husband’s fracture in the leg is a displaced fracture, then he can file a personal injury lawsuit regardless of verbal threshold. A displaced fracture means that the fracture in the bone actually separates the bone unlike a hairline fracture, where the bone doesn’t become separated because of the fracture.
Even if your husband’s leg fracture is not a displaced fracture, he may still be able to sue because his traumatic brain injury may be considered a permanent injury. An injury is considered permanent if it has not healed to function normally and will not heal to function normally even with further medical treatment. Therefore, your husband’s medical records and physicians’ expert reports will be important in determining whether he has a permanent injury.
If your husband’s brain injury resulted in a serious cognitive impairment that is permanent in nature, he may be able to sue the other driver for pain and suffering in a personal injury lawsuit. For example, he may have permanent short or long term memory problems. Of course, medical evidence and reports will be needed as proof that your husband has a permanent brain injury.
However, your husband’s brain injury may not be considered permanent in the following situation: your husband sustained a concussion from the car accident and suffered post-concussive symptoms, such as headaches, vertigo, etc., for a few months after the accident. As a result, he couldn’t work for a couple of months. After treatment, such as medication and cognitive rest, he recovers and no longer suffers from the post-concussive symptoms. He is able to return to work with no other signs of post-concussive syndrome. In such a case, his head injury will probably not be considered permanent because he is able to function normally.
In addition to your husband’s claims, you also have a claim against the at-fault driver. If your husband’s injuries resulted in the loss of your husband’s support, guidance and companionship, you have a claim called loss of consortium claim. Click here for a detailed discussion about NJ loss of consortium claims for spouses of injured car accident victims: NJ Car Accident Law: Can an Injured Car, Bus or Truck Victim’s Spouse Recover Damages?
Feel free to give our office a call to schedule a FREE consultation. It is important to talk to a NJ car accident lawyer to explore your husband’s legal options, as well as your legal options. 800.281.8695
DISCLAIMER: This website does not create any attorney-client relationship or provide legal advice. Read full disclaimer at the bottom of this page.