Verbal Threshold Defense

This past Spring, Faust, Goetz, Schenker & Blee was anxiously awaiting the New Jersey Supreme Court’s decisions on the future use of the verbal threshold defense in New Jersey motor vehicle accident litigation. On June 14, 2005, the New Jersey Supreme Court issued two published opinions that definitively eliminated the need of an injured party to show that his or her alleged injuries from a motor vehicle accident caused plaintiff a serious life impact. See DiProspero v. Penn, 183 N.J. 477 (N.J. 2005), and Serrano v. Serrano, 183 N.J. 508 (N.J. 2005).

Consequently, under The Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A 39:6A-1.1, et seq., an injured party selecting the limitation on lawsuit option in his or her personal automobile policy, or the “verbal threshold”, need only prove by credible, objective evidence that the injury sustained falls with one of six statutorily created categories to recover for non-economic, or “pain and suffering”, damages.

In DiProspero, the Supreme Court held that the plain language of the AICRA does not contain a serious life impact standard.Id. An extensive evaluation of the legislative history of the AICRA was performed, revealing no evidence that the legislature intended to add a second test for serious life impact. Previously, under the Oswin standard, the court needed to analyze plaintiff’s claims under two prongs: (1) serious and permanent injury, and (2) serious life impact. In DiProspero, the court concluded that plaintiff must only establish a serious and permanent injury as set forth in the six statutorily created categories.

The Serrano case was decided on the same day as the DiProspero case. Plaintiff’s case was remanded for consideration under the new standard. Plaintiff Serrano was twenty-one years old, unemployed, and a passenger injured in a motor vehicle accident that occurred while his wife was driving. He alleged acute neck and back strain, TMJ, and carpal tunnel syndrome.

A July 21, 2005, published decision from the New Jersey Superior Court, Appellate Division, evaluated plaintiff Juarez’ injuries under the DiProspero and Serrano standard. In Juarez v. Salerno, the court found plaintiff Juarez did not provide objective evidence that the injuries sustained met the statutory standard set forth in the AICRA. Plaintiff Juarez alleged back sprain/strain, left sided L5 radiculopathy, post-traumatic stress syndrome with associated nervousness, fatigue, depression and anxiety, and a right shoulder contusion.

We expect that the Appellate Division will issue several published cases in the upcoming months evaluating the limits of the types of injuries that qualify under the newly created standard set forth in DiProspero and Serrano. Currently, Faust, Goetz, Schenker & Blee continues to argue the verbal threshold defense on behalf of our clients in all appropriate cases. We anticipate testing the limits of the types of injuries that will now qualify under this new standard throughout all counties of New Jersey.