Documenting Serious Impact: Still important even after DiProspero
By Michael Foster
June 2005
Since 1988 New Jersey drivers negligently injured in an auto accident have been restricted in their ability to bring a claim for the injuries they suffered. This restriction know as the verbal threshold which is part of your auto insurance policy limited recovery unless the person sustained one of nine delineated types of injury. These included:
June 2005
Since 1988 New Jersey drivers negligently injured in an auto accident have been restricted in their ability to bring a claim for the injuries they suffered. This restriction know as the verbal threshold which is part of your auto insurance policy limited recovery unless the person sustained one of nine delineated types of injury. These included:
- Death
- Dismemberment
- Significant disfigurement
- Loss of a fetus
- Fracture
- Permanent loss of use of a body organ, member, function or system
- Permanent consequential limitation of use of a body organ or member
- Significant limitation of use of a body function or system
- Medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all the material acts which constitute that person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.
See N.J.S.A. 39:6A-8(a)
In addition, since 1992 when the New Jersey Supreme Court decided the case of Oswin v. Shaw, a plaintiff also has had to prove that "the injury had a serious impact on the plaintiff and her life." Oswin v. Shaw,129 N.J. 290, 318 (1992)
For the last 13 years attorneys, Judges and the New Jersey consumer have struggled to understand what "serious impact" really was and how to prove it.
In practice what has occurred is that people inured in car accidents have been required to undergo an in depth analysis of their everyday lives in order to explain in detail how their life has changed since they were hurt. This included major aspects of everyone's life such as work and being able to care for one's children to the mundane such as doing the laundry or walking the dog. Every detail of a person's social, recreational, employment, family and household life became magnified as the search to somehow prove serious impact occurred.
Recently this serious impact standard had been becoming even tougher to satisfy in light of the 1999 amended verbal threshold law which further restricted the allowable categories of injury from nine down to six and Appellate Court decisions since 2002. As of 2005 the current "limitation on lawsuit threshold" required an accident victim to prove one of the following:
In addition, since 1992 when the New Jersey Supreme Court decided the case of Oswin v. Shaw, a plaintiff also has had to prove that "the injury had a serious impact on the plaintiff and her life." Oswin v. Shaw,129 N.J. 290, 318 (1992)
For the last 13 years attorneys, Judges and the New Jersey consumer have struggled to understand what "serious impact" really was and how to prove it.
In practice what has occurred is that people inured in car accidents have been required to undergo an in depth analysis of their everyday lives in order to explain in detail how their life has changed since they were hurt. This included major aspects of everyone's life such as work and being able to care for one's children to the mundane such as doing the laundry or walking the dog. Every detail of a person's social, recreational, employment, family and household life became magnified as the search to somehow prove serious impact occurred.
Recently this serious impact standard had been becoming even tougher to satisfy in light of the 1999 amended verbal threshold law which further restricted the allowable categories of injury from nine down to six and Appellate Court decisions since 2002. As of 2005 the current "limitation on lawsuit threshold" required an accident victim to prove one of the following:
- Death
- Dismemberment
- Significant disfigurement or significant scarring
- Displaced fractures
- Loss of a fetus
- Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
Additionally they also still had to prove that the permanent injury seriously impacted their life. James v. Torres 354 N.J. Super 586 (App. Div. 2002).
This N.J. law changed in a major way on June 14, 2005, when the New Jersey Supreme Court decided the case of DiProspero v. Penn. In short, this decision held that the serious impact requirement no longer must be proven. If an accident victim can satisfy one of the six categories of injury that is enough. There is no longer a burden on the plaintiff beyond that.
This decision will have an immediate impact on people's ability to be fairly compensated when they are permanently injured by the negligence of other drivers.
Even in light of this new decision attorneys and accident victims alike must still understand the importance of documenting and proving life effects and serious impact. Even though it may no longer be required to satisfy the "verbal threshold", proof of impact on one's life is perhaps the most important element of damages in New Jersey law.
In New Jersey injured parties are entitled to compensation not only for their physical pain and mental suffering but for their "Disability, Impairment and Loss of the enjoyment of Life" New Jersey Civil Model Jury Charges 6.11 (F). A person is entitled to fair and reasonable compensation for among other things disability to or impairment of his/her ability to participate in activities, and to pursue their normal pleasures and enjoyment.
In effect the requirement under the law prior to DiProspero to prove serious impact in many ways better prepared plaintiff's to maximize their allowable damages under the law.
Therefore, attorney's and plaintiff's both should continue the exacting and in depth analysis of life impact even though it may no longer be a required element to satisfy New Jersey law. Continuing to document life effects and how one's activities of daily living have been effected by an injury is still just as if not more important. Plaintiff's should continue to document their effects through use of journals and/or diaries and other documentation methods. Attorney's should continue to prepare their clients for deposition and trial as if serious impact was still required because in essence it is. But now serious impact can truly and effectively be used to maximize and prove the true damages suffered by an accident victim.
This N.J. law changed in a major way on June 14, 2005, when the New Jersey Supreme Court decided the case of DiProspero v. Penn. In short, this decision held that the serious impact requirement no longer must be proven. If an accident victim can satisfy one of the six categories of injury that is enough. There is no longer a burden on the plaintiff beyond that.
This decision will have an immediate impact on people's ability to be fairly compensated when they are permanently injured by the negligence of other drivers.
Even in light of this new decision attorneys and accident victims alike must still understand the importance of documenting and proving life effects and serious impact. Even though it may no longer be required to satisfy the "verbal threshold", proof of impact on one's life is perhaps the most important element of damages in New Jersey law.
In New Jersey injured parties are entitled to compensation not only for their physical pain and mental suffering but for their "Disability, Impairment and Loss of the enjoyment of Life" New Jersey Civil Model Jury Charges 6.11 (F). A person is entitled to fair and reasonable compensation for among other things disability to or impairment of his/her ability to participate in activities, and to pursue their normal pleasures and enjoyment.
In effect the requirement under the law prior to DiProspero to prove serious impact in many ways better prepared plaintiff's to maximize their allowable damages under the law.
Therefore, attorney's and plaintiff's both should continue the exacting and in depth analysis of life impact even though it may no longer be a required element to satisfy New Jersey law. Continuing to document life effects and how one's activities of daily living have been effected by an injury is still just as if not more important. Plaintiff's should continue to document their effects through use of journals and/or diaries and other documentation methods. Attorney's should continue to prepare their clients for deposition and trial as if serious impact was still required because in essence it is. But now serious impact can truly and effectively be used to maximize and prove the true damages suffered by an accident victim.
