On June 14, 2005, the New Jersey Supreme Court decided DiProspero v. Penn (A-66-03). DiProspero significantly alters how the lawsuit threshold has been interpreted for the last 15 years. The 1988 threshold statute, the predecessor to the 1998 Automobile Insurance Cost Reduction Act ("AICRA") limitation on lawsuit threshold, required accident victims to prove by objective medical evidence that their injuries satisfied at least one of nine (9) statutory categories in order to qualify for recovery of non-economic damages. In Oswin v. Shaw, 129 N.J. 290 (1992), the Supreme Court concluded that under the 1988 verbal threshold, in addition to proving that her injury fit within one of the applicable statutory categories, the accident victim had to prove that she suffered a serious life impact. DiProspero holds that AICRA, the current threshold statute, is significantly different from the 1988 threshold statute and does not incorporate Oswin's holding requiring an accident victim to prove that the injury caused a serious life impact.
The Supreme Court notes that the language of AICRA's limitation on lawsuit threshold requires a plaintiff to prove that the defendant caused a bodily injury which resulted in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. The plaintiff does need to prove the permanent injury by objective medical evidence.
DiProspero holds that AICRA's statutory language places no burden on the plaintiff other than to prove that the injury meets one of the six threshold categories. The Supreme Court held that the legislature's explicit incorporation of one of Oswin's holdings, the objective medical evidence standard, into AICRA, strongly implied that it consciously chose not to incorporate another of Oswin's holdings, the serious life impact standard.
While it is too early to know the full impact of DiProspero, it will undoubtedly reduce our ability to successfully move for summary judgment and may encourage members of the plaintiffs bar to pursue claims which they may otherwise have refused. If you would like to read a copy of the DiProspero opinion, please click here. To view a copy of the companion case opinion, Serrano v. Serrano, click here.
Should you have any questions about the above, please do not hesitate to contact me.
Very truly yours,
Glendon E. Danks
For further information, please contact Glendon E. Danks, Esquire.
Telephone: 856-751-5285
E-mail: danks@bbs-law.com
