New Jersey Car Accident Law Blog : New Jersey Personal Injury Lawyer & Attorney : Richard Schnoll : Cohn Lifland Pearlman & Knopf Law Firm : NJ Auto Accidents, Car Crashes

Recently, a friend of mine was involved in a car accident. Having never had an accident before, he was a bit shaken up and called me from the scene of the accident. Here’s what I told him to do.

• Call the police.

No matter how “minor” the accident may seem, err on the side of caution and notify the authorities. The police will create a report based on the statements you, the other driver(s), and any witnesses to the accident give. Be sure to get a copy of the report for your records and for your insurance company. (It usually takes a few days for the report to be processed.) If the police don’t come to the scene of the accident, go to the local police station and file a report.

• Be quiet.

Don’t apologize or admit any fault to the other driver(s) or passengers. Instead, wait to give your statement to the police. 

• Exchange Information.

 If the police don’t come to the scene, make sure that you get the names, addresses and telephone numbers of the drivers of all vehicles involved in the accident, along with the names of their insurance companies and insurance policy numbers. Be sure to get the names, addresses and telephone numbers of any witnesses, too. 

• Take pictures. 

Get pictures of the accident scene, including your car, the other car(s) involved in the accident, and any other damaged property. Photographs may prove helpful to the insurance company in conducting their investigation. The average cell phone has a decent camera. If you don’t have a camera phone, consider keeping a disposable camera in your car for emergencies. 

• Injured?

Stay in or near your car so long as it is safe to do so. EMS personnel will first check the cars involved in the accident for people with injuries. If you aren’t in your car, then you may be overlooked. 

• Get organized.

Make sure that all of your car-related documents are current and in your car. That includes proof of insurance and registration. The last thing you need after an accident is a ticket for failure to provide proof of insurance or registration.       

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New Jersey is one of many states that have a Personal Injury Protection (PIP) system in place as part of your automobile insurance coverage. The purpose of PIP as part of comprehensive reform was to lower auto insurance premiums, although it has not necessarily worked out that way.

When you purchase a policy of auto insurance, you must choose whether your health insurance carrier (assuming that you have one) or your automobile carrier will be primarily responsible for your medical coverage if you are injured in a car accident.

Do not make this decision lightly.  There are pros and cons to both selections. If you choose your car carrier, you will be offered several levels of coverage from $15,000 per person per accident to $250,000. This coverage comes with a deductible of $250 and a co-pay of 20% on the first $5,000 of bills. This may be better or worse than your health insurance coverage.

While choosing your health insurance carrier as primary will reduce your PIP premium, the trade off is that your health insurance carrier may have a lien on any subsequent lawsuit that you bring against a third party for the injuries that you sustained if your health plan is a self-funded ERISA plan. That means that you would have to pay back your health insurance plan out of any settlement that you might receive. Generally, there is no re-payment obligation to your auto carrier.

Therefore, as the knight said to Indiana Jones in the last of the trilogy when Indiana had to choose the goblet - Choose Wisely!!

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New Jersey has a law that bars an injured person from suing for pain and suffering arising from a car accident  if that person does not have the requisite insurance on his/her vehicle at the time of the accident. What happens if the injured person is not the operator of the vehicle but is merely a passenger in their own vehicle? Do they have a right to sue? In a recent case, the NJ Supreme Court said NO. In the case of Perrelli v. Pastorelle,  Denise Perrelli was a passenger in her vehicle which was being driven by a friend. They collided with a vehicle operated by Paul Pastorelle. Perrelli sued Pastorelle claiming that his negligence caused the accident. The defendant moved for Summary Judgment based upon the NJ law.  Perrelli countered that the statute 's language requires her to be the operator of the vehicle and since she was not, she was entitled to bring suit. The trial court denied the summary judgment motion. The case eventually made its way to the Supreme court, which reversed the lower court holding that the language of the statute cannot be construed so literally because it would allow an uninsured person to violate the law and not suffer its consequences.  Therefore, whether you are the owner/operator or passenger in the car, you are barred from suing if the car is uninsured!!

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Under New Jersey law, an uninsured owner/operator of a car who is involved in an accident which results in injuries to the operator is precluded from recovering damages for both economic and non-economic (pain and suffering) loss.  See N.J.S.A. 39:6A-4.5(a).

An interesting but previously unanswered question is whether the survivors of an uninsured driver who is killed in a crash can bring an action under the Wrongful Death Act notwithstanding the fact that the operator was uninsured.  This issue will be decided shortly by the NJ Supreme Court in the case of Aronberg v. Tolbert.

Lawrence Aronberg was killed in a crash on the NJ Turnpike.  His automobile insurance carrier had cancelled his policy a few weeks before the crash due to non-payment of premiums.

His mother brought  Wrongful death Act and Survivor's Act claims. The trial court dismissed the Survivor's Act claim but upheld the Wrongful Death Act claim.  The defendant appealed.  The Appellate Division affirmed in a 2-1 decision, holding that there is nothing in the language of the statute that indicates that the "Legislature intended to target innocent family members without any culpability for the lack of insurance". The dissenting judge wrote that he believed that the Legislature intended to prohibit these types of lawsuits.

Now the NJ Supreme Court will have the final say.

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In Simmons v. Lynch, plaintiff, Lois Simmons, was involved in a car accident while driving a vehicle owned and insured by her employer. At the time of the accident, plaintiff owned a car, which was uninsured. 

Plaintiff received treatment for her injuries and sued the defendant and the defendant’s insurance company. During her suit, plaintiff failed to provide a doctor’s report “establishing that she suffered a permanent injury causally related to the accident” and a physician’s certification, as required under New Jersey law. 

The defendants filed a motion for summary judgment, alleging that plaintiff had failed to meet the permanent injury verbal threshold requirements set forth in the Automobile Insurance Cost Reduction Act (AICRA). Plaintiff argued that she was not subject to AICRA, since she had not been driving her own uninsured car at the time of the accident. In the alternative, she argued, that she had suffered permanent injuries. 

The trial court granted summary judgment to the defendants, finding that plaintiff was subject to AICRA “because she was required to maintain personal injury protection (PIP) for her vehicle, and was unlawfully uninsured at the time of the accident.” The trial court also found that plaintiff had failed to establish she had suffered a permanent injury. 

Plaintiff appealed and the Appellate Division affirmed the trial court’s decision. The Appellate Division found that plaintiff was subject to AICRA, “because she was the owner of an automobile to which PIP coverage applies, was required to maintain PIP coverage, and was an ‘unlawfully uninsured person.’” Consequently, AICRA’s verbal threshold test applied to plaintiff. Because plaintiff failed to meet the verbal threshold test by not providing evidence which established that she had sustained a permanent injury, defendants were entitled to summary judgment as a matter of law. 

Lesson learned: You own a car? Make sure it’s insured, even if you’re driving another person’s insured vehicle!               

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That question was at the forefront of Rashabov v. Alfuso, a recent decision by the New Jersey Appellate Division. 

The plaintiff, a non-English speaking Russian immigrant of Turkish descent, was involved in a multicar accident on the Garden State Parkway. He, along with his wife, mother and brother, who were all passengers in the car, suffered injuries. Plaintiff submitted his medical bills to his automobile insurance carrier for payment under his personal injury protection policy. However, the insurance company refused to pay the bills. In turn, plaintiff and his injured family members filed suit.   

After conducting an investigation into the accident, the insurance company found that the plaintiff had misrepresented material facts in his application for coverage by failing to identify all of the people that lived with him, including his wife, parents and two brothers. As a result of its findings, the insurance company cancelled the plaintiff’s insurance policy as of the original effective date, thereby eliminating its obligation to pay out any PIP benefits to the plaintiff. 

The trial court ruled in favor of the insurance carrier and the Appellate Division upheld the decision. In support of its ruling, the Appellate Division relied on New Jersey caselaw and statutes which speak to the duty of insurance applicants “not to misrepresent or conceal material information” and the right of insurance carriers to rescind a policy where such misrepresentations have occurred. 

Plaintiff argued that that he did not intentionally misrepresent any information he provided in his insurance application, since he relied on an interpreter to fill out the forms. However, the Court found that plaintiff’s inability to read English did not absolve him of his responsibility to understand and follow the terms of the contract into which he had entered. 

Ultimately, the Court found that plaintiff’s failure to provide accurate information regarding the number of people living in his household was a material misrepresentation sufficient to warrant the insurance carrier’s rescission of the policy. 

Lesson learned: honesty is the best policy!     

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A recent comment asked about the liability of a motor vehicle operator who rear ends another vehicle.  Is the operator always liable?  The facts posted by the commentator were that he was traveling behind someone who stopped to make an illegal left turn and he then rear ended that vehicle.  While I cannot comment on his particular liability, I can comment on some NJ cases where a rear ending defendant was found not liable.

In a case called Rosinola v. Koehler, the plaintiff was merging onto a roadway and had a yield sign.  She claimed that she had to stop because there were cars on the road that she was trying to merge onto and that she was rear ended by the defendant.  The defendant testified that the plaintiff stopped unexpectedly 60 feet from the merging lane, that there was no reason for her to stop and that when she stopped, his vehicle skidded on the snow, sand and salt on the roadway.  The jury found plaintiff 55% liable and defendant 45% liable, meaning that plaintiff received nothing.  Plaintiff appealed.  The appellate court found that it was for the jury to determine the credibility of the parties and that the jury verdict was not unreasonable. The appellate court upheld the jury verdict.

In Mockler v. Russman, plaintiff was operating a car  and was rear ended by a school bus as she waited to make a left turn.  The bus driver and a witness testified that the bus was going approximately 10-20 mph prior to the crash.  The bus driver testified that when he applied his brakes, the bus skidded on the snowy roadway.  He tried to avoid the accident by moving the bus to the right but was unsuccessful. The jury found that the defendant was not liable.  The plaintiff appealed and the appellate court upheld the jury verdict stating that skidding in and of itself is not sufficient to justify an inference of negligence.  Plaintiff would have to prove more than just that the defendant skidded, that in some way the operator had to have deviated from the standard of care in the operation of the vehicle.

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Summer driving season is here and many of you will be renting cars for the wonderful road trip.  Here are some useful things to remember when you approach the rental counter:

1.  Liability coverage - Do I have coverage if I cause an accident ?  If you own a vehicle, the answer is probably yes.  You auto insurer in most cases will cover you for an accident caused in a rental car BUT you must check with your carrier before renting.  Some carriers have particular exclusions depending on where you are going or for what purpose your are renting the car, for example business. If you do not own a car and you have assets to protect, you can purchase liability coverage from the rental car company

2. Collision coverage - Rental car companies love to sell Collision Damage Waiver (CDW) protection.  It is very expensive, generally $10-15 dollars per day depending on the company and the type of car rented.  If you purchase that coverage and have an accident you will have no liability for the damage to the rental car regardless of fault.  If you want to save money on the CDW, you may have coverage through your own auto policy if you have collision coverage on your private vehicle.  Again check with your carrier.  Of course, you would be subject to the same deductible as for your private car.  Lastly, many credit cards provide this coverage if your rent the car using that card.  Check with your credit card company.

3.  Authorized drivers - Anyone who may drive the rental vehicle should be listed on the rental agreement, even if there is an additional fee.  If you let someone who is not on the agreement drive the car and that person gets into an accident, you may void your various coverages.

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Wow.  Sorry that it has been so long since my last post.  Lots of business and personal issues going on.

My last post began a discussion of New Jersey's initial permission rule.  Following are some interesting factual patterns and how the courts have dealt with the insurance coverage issues.

Scenario 2- The owner of the car is in the hospital.  He loans the car to his nephew so that the nephew can transport the owner's wife to the hospital and perform various errands.  The owner gives the car keys to the nephew.  There are no other specific instructions nor is there any discussion of whether the nephew can use the car for his own purposes.  after several days of transporting the owner's wife around, the nephew picks up a friend and they go for coffee and a few drinks.  they deicde to drive to New York for the weekend.  Along the way they pick up 5 hitchikers (it must have been some party).  At some point, the nephew's friend takes over the driving.  As luck would have it, the friend collides with a truck on the New Jersey Turnpike.  One passenger is killed, the others injured.  The insurance carrier for the car denies coverage claiming that the driver was not using the car with the permission of the named insured (the owner).

Scenario 3 - Husband and wife planned to attend a concert.  When they realize that the brakes on their vehicle are faulty, they go to the husband's mother's home to borrow a car owned by the husband's stepfather but used primarily by his mother.  When they arrive, mother and stepfather are not home.  Husband has key to the house and finds the car keys inside.  Wife drives the car while husband, who has a suspended license,  follows behind in their own car with the bad brakes.They go to husband's cousin's house to drop off their car and then to concert.  After concert, husband drives because wife is too tired.  Wife falls asleep in the back seat and is  killed when husband loses control and has a one car accident.  Insurance carrier denies coverage claimaing that husband had no reasonable belief that he was entitled to use the vehicle.

What did the Court rule?  Scenario 2 was addressed by the New Jersey Supreme Court in Small v. Schunke, 42 NJ 407 (1964).  The Court extended the intial permission rule to provide coverage for a subsequent operator given permission to use the vehicle by the original permitee.  The court stated that there are only two questions to be answered to determine coverage under the initial permission rule: 1.  Was there permission to use the car initially? and 2. Did the subsequent use, while possession was retained constitute theft or the like?  If the answer to the first question is Yes and to the second question No, coverage must be provided.

Scenario 3 was addressed in the case of Rutgers Casualty Insurance v. Collins, 158 NJ 542 (1999).  The insurance policy in question excluded liability coverage for any person "using the vehicle without a reasonable belief that the person is entitled to do so".  The trial court, finding that the husband could not have had a reasonable belief that he had a right to use the vehicle due to his suspended license, ruled for the insurer.  The case ultimately went to the Supreme Court which held that the reasonable belief clause does not govern the factual scenario. The wife's estate entitlement to coverage arises from the initial permission rule since the wife was the first user of the vehicle.  If the wife had the initial permission of her in-laws to use the vehicle, whether express or implied, her  permitting her husband to drive makes him a subsequent permittee requiring coverage regardless of the husband's reasonable belief in his right to use the car.

to be continued...

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Over the next few weeks, I will be discussing an interesting aspect of New Jersey insurance coverage called the intial permission rule.

Scenario 1 - Husband loans his wife’s car to next door  neighbor so that neighbor can visit her ill mother. After a short visit with her mother, neighbor drives to a tavern in search of her sister. She had a few drinks at the tavern and then drove to another bar. She went back and forth between the two establishments over several hours before heading home. On the way home, she is involved in a collision with another car. Insurance carrier denies coverage stating that the neighbor used the vehicle outside the scope of the permission granted.

New Jersey follows the “initial permission” rule in determining coverage issues under these circumstances. The rule, adopted by the New Jersey Supreme Court in Matits v. Nationwide Mutual Insurance Co., 33 N.J. 488, 497 (1960) (scenario 1) provides that “if a person is given permission to use a motor vehicle in the first instance, any subsequent use short of theft or the like while it remains in his possession, though not within the contemplation of the parties, is a permissive use within the terms of a standard omnibus clause in an automobile liability insurance policy.”  Therefore, the carrier was required to provide liability coverage for the vehicle.

To be continued ...

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In follow up to my last post, I was reading today on NorthJersey.com about a police chase of a stolen vehicle. Near the end of the chase, the stolen car smashed into a parked vehicle.

What would you do if it was your parked car? Who would pay to fix it? I think it highly unlikely that the thief would offer to pay for the damage. The insurance carrier for the stolen car can disclaim coverage because the vehicle was stolen. However, you can look to your own auto insurance policy for your Uninsured Motorist Property damage coverage. Depending on how much coverage you purchased, you may be able to have your vehicle fixed without any out of pocket loss to you.

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I recently handled a case for a lovely young couple and their infant son. They were driving along when suddenly a vehicle raced through a stop sign without stopping and smashed into the side of my client's car. Luckily, no one was killed but the wife suffered fairly significant internal injuries requiring hospitalization. Upon investigation, we determined that the tortfeasor (the car that went through the stop sign) only had a minimum insurance policy of $15,000. Since her case was clearly worth more than $15,000, could we recover from any other source? Underinsured Motorist coverage (UIM) might be such a source.

What is UIM coverage? Coverage that you purchase to protect yourself if you are involved in an accident with a vehicle that has limited coverage. It is relatively inexpensive. It is usually sold in conjunction with Uninsured Motorist coverage (UM) which protects you if you are involved in an accident with a vehicle that either has no insurance, is stolen or is unidentified ( hit and run).

Unfortunately, my client only had UIM coverage of $25,000. Since her carrier is entitled to a credit for money received from the tortfeasor, we could only collect an additional $10,000 for her, not nearly enough to compensate her for her injuries.

The Bottom Line: purchase as much UIM coverage as you can afford.

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