Verbal Threshold in New Jersey Car Accident Injury Cases – Section 39:6A-8

 

New Jersey has some of the most complex auto accident injury laws. There are two widely misunderstood laws: the deemer statute and verbal threshold. The deemer statute applies to out of state drivers who get injured in accidents which occur while driving their automobiles in New Jersey.

Verbal threshold applies to residents of New Jersey who have cars registered and licensed in this state. If you have a NJ auto insurance policy, you are required to choose between verbal threshold and non-verbal threshold. What you chose on your policy will affect your legal rights if you’re injured in an auto accident.

A Brief History of Verbal Threshold in New Jersey

New Jersey auto insurance law has undergone major changes and amendments since the early 1970s, when NJ first adopted its version of the no-fault law. In 1988, New Jersey adopted its first version of the verbal threshold law, which has since undergone multiple changes. The most recent law affecting verbal threshold is the Automobile Insurance Cost Reduction Act (AICRA) which was passed in 1998. Since then, an overwhelming number of New Jersey auto accident and injury lawsuits have involved verbal threshold issues.

Related: New Jersey Car Accidents & Verbal Threshold – Can Injured Car Accident Victims Recover Damages? (Part 1)

What is NJ Verbal Threshold Law? Section 39:6A-8

Under the current version of the AICRA, New Jersey Statutes Annotated Section 39:6A-8, NJ residents with verbal threshold (AKA: limitation on lawsuit) are unable to file civil lawsuits to obtain financial compensation for pain and suffering damages unless their injuries fall under certain categories: (1) death; (2) dismemberment; (3) loss of a fetus; (4) significant disfigurement or scarring; (5) displaced fractures; or (6) permanent injury. See below for the full text of the statute.

In catastrophic injury cases, verbal threshold is often not an issue; the individual’s injuries will meet one or more of the injury categories. For example, a pedestrian with verbal threshold who is hit by a large truck in South New Jersey would get over the threshold if the injuries included multiple, serious spinal fractures and major facial scarring.

On the other hand, individuals with verbal threshold who suffer non-major injuries, such as soft-tissue injuries, will have to prove that the injuries are permanent. This is where most cases are won or lost. If there isn’t sufficient evidence of permanency as defined by the AICRA, the injured driver/passenger will lose their case.

Evidence of Permanent Injury

Under Section 39:6A-8, an injury is considered permanent when a body part or organ “has not healed to function normally and will not heal to function normally with further medical treatment.” In addition, a treating medical doctor must provide a certification, based on objective clinical evidence, that the injury is permanent. Examples of objective clinical evidence include diagnostic tests such as x-rays, MRIs, etc. The certification must be made under penalty of perjury and must be provided to the opposing side (at-fault driver) within 60 days of the filing of the Answer to the Complaint.

New Jersey Verbal Threshold Injury Lawyer

If you have verbal threshold, you may be able to obtain fair financial compensation for your injuries and losses. It is crucial to have an experienced auto injury lawyer review your case. Call our office for a free consultation. 856.983.8695

39:6A-8 Tort exemption, limitation on the right to noneconomic loss. [*Current as of March 2, 2015; emphasis added]

One of the following two tort options shall be elected, in accordance with section 14.1 of P.L.1983, c.362 (C.39:6A-8.1), by any named insured required to maintain personal injury protection coverage pursuant to section 4 of P.L.1972, c.70 (C.39:6A-4):

a.Limitation on lawsuit option.  Every owner, registrant, operator or occupant of an automobile to which section 4 of P.L.1972, c.70 (C.39:6A-4), personal injury protection coverage, section 4 of P.L.1998, c.21 (C.39:6A-3.1), medical expense benefits coverage, or section 45 of P.L.2003, c.89 (C.39:6A-3.3) regardless of fault, applies, and every person or organization legally responsible for his acts or omissions, is hereby exempted from tort liability for noneconomic loss to a person who is subject to this subsection and who is either a person who is required to maintain personal injury protection coverage pursuant to section 4 of P.L.1972, c.70 (C.39:6A-4), medical expense benefits pursuant to section 4 of P.L.1998, c.21 (C.39:6A-3.1) or benefits pursuant to section 45 of P.L.2003, c.89 (C.39:6A-3.3), or is a person who has a right to receive benefits under section 4 of P.L.1972, c.70 (C.39:6A-4), section 4 of P.L.1998, c.21 (C.39:6A-3.1) or section 45 of P.L.2003, c.89 (C.39:6A-3.3), as a result of bodily injury, arising out of the ownership, operation, maintenance or use of such automobile in this State, unless that person has sustained a bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement An injury shall be considered permanent 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.  For the purposes of this subsection, “physician” means a physician as defined in section 5 of P.L.1939, c.115 (C.45:9-5.1).

In order to satisfy the tort option provisions of this subsection, the plaintiff shall, within 60 days following the date of the answer to the complaint by the defendant, provide the defendant with a certification from the licensed treating physician or a board-certified licensed physician to whom the plaintiff was referred by the treating physician.  The certification shall state, under penalty of perjury, that the plaintiff has sustained an injury described above.  The certification shall be based on and refer to objective clinical evidence, which may include medical testing, except that any such testing shall be performed in accordance with medical protocols pursuant to subsection a. of section 4 of P.L.1972, c.70 (C.39:6A-4) and the use of valid diagnostic tests administered in accordance with section 12 of P.L.1998, c.21 (C.39:6A-4.7). Such testing may not be experimental in nature or dependent entirely upon subjective patient response.  The court may grant no more than one additional period not to exceed 60 days to file the certification pursuant to this subsection upon a finding of good cause.

A person is guilty of a crime of the fourth degree if that person purposefully or knowingly makes, or causes to be made, a false, fictitious, fraudulent, or misleading statement of material fact in, or omits a material fact from, or causes a material fact to be omitted from, any certification filed pursuant to this subsection.  Notwithstanding the provisions of subsection e. of N.J.S.2C:44-1, the court shall deal with a person who has been convicted of a violation of this subsection by imposing a sentence of imprisonment unless, having regard to the character and condition of the person, the court is of the opinion that imprisonment would be a serious injustice which overrides the need to deter such conduct by others.  If the court imposes a noncustodial or probationary sentence, such sentence shall not become final for 10 days in order to permit the appeal of such sentence by the prosecution.  Nothing in this subsection a. shall preclude an indictment and conviction for any other offense defined by the laws of this State.  In addition, any professional license held by the person shall be forfeited according to the procedures established by section 4 of P.L.1997, c.353 (C.2C:51-5); or

b.No limitation on lawsuit option.  As an alternative to the basic tort option specified in subsection a. of this section, every owner, registrant, operator, or occupant of an automobile to which section 4 of P.L.1972, c.70 (C.39:6A-4), personal injury protection coverage, section 4 of P.L.1998, c.21 (C.39:6A-3.1), medical expense benefits coverage, or section 45 of P.L.2003, c.89 (C.39:6A-3.3), regardless of fault, applies, and every person or organization legally responsible for his acts or omissions, shall be liable for noneconomic loss to a person who is subject to this subsection and who is either a person who is required to maintain the coverage mandated by P.L.1972, c.70 (C.39:6A-1 et seq.) or is a person who has a right to receive benefits under section 4 of that act (C.39:6A-4), as a result of bodily injury, arising out of the ownership, operation, maintenance or use of such automobile in this State.

The tort option provisions of subsection b. of this section shall also apply to the right to recover for noneconomic loss of any person eligible for benefits pursuant to section 4 of P.L.1972, c.70 (C.39:6A-4), section 4 of P.L.1998, c.21 (C.39:6A-3.1) or section 45 of P.L.2003, c.89 (C.39:6A-3.3) but who is not required to maintain personal injury protection coverage pursuant to section 4 of P.L.1972, c.70 (C.39:6A-4), medical expense benefits coverage pursuant to section 4 of P.L.1998, c.21 (C.39:6A-3.1) or benefits pursuant to section 45 of P.L.2003, c.89 (C.39:6A-3.3) and is not an immediate family member, as defined in section 14.1 of P.L.1983, c.362 (C.39:6A-8.1), under a standard automobile insurance policy or basic automobile insurance policy.

The tort option provisions of subsection a. of this section shall also apply to any person subject to section 14 of P.L.1985, c.520 (C.39:6A-4.5) and to every named insured and any other person to whom the benefits of the special automobile insurance policy provided in section 45 of P.L.2003, c.89 (C.39:6A-3.3) or the medical expense benefits of the basic automobile insurance policy pursuant to section 4 of P.L.1998, c.21 (C.39:6A-3.1) apply whether or not the person has elected the optional $10,000 liability coverage insuring against loss resulting from liability imposed by law for bodily injury or death provided for in subsection c. of section 4 of P.L.1998, c.21 (C.39:6A-3.1).

The tort option provisions of subsections a. and b. of this section as provided in this 1998 amendatory and supplementary act shall apply to automobile insurance policies issued or renewed on or after the effective date of P.L.1998, c.21 (C.39:6A-1.1 et al.) and as otherwise provided by law.

L.1972,c.70,s.8; amended 1972, c.203, s.6; 1983, c.362, s.14; 1985, c.520, s.15; 1988, c.119, s.6; 1990, c.8, s.9; 1998, c.21, s.11; 2003, c.89, s.52.