On April 5th, the New Jersey Senate Judiciary Committee pushed forward Senate Bill S-1766, legislation which would expand the state’s wrongful death statute to allow for recovery of damages from “mental anguish, emotional pain and suffering, loss of society and loss of companionship.” Currently, the survivors who lost a loved one cannot be compensated for such emotional loss.
I received a call from a mother of a child who has been bullied. She was unaware of the school’s obligations in dealing with such behavior. New Jersey was a national leader in 2002 by being one of the first states to enact anti-bullying legislation. On January 5, 2011, Governor Christie signed the New Jersey Anti-Bullying Bill of Rights Act which strengthened New Jersey’s original anti-bullying law. Besides expanding the definition of bullying, the Act also put more responsibility on the schools in dealing with such incidents and reporting information on school websites. In fact, each school is required to designate an anti-bullying specialist to deal with all bullying incidents.
The new law includes cyber-bullying which is a relatively new issue. Bullying is also defined to include incidents that occur off school grounds. Specifically, it is now defined as “any gesture, any written, verbal or physical act, or any electronic communication, whether it be a single incident or series of incidents, that is reasonably perceived as being motivated either by any actual or perceived characteristic… that takes place on school property, at any school-sponsored function, on a school bus, or off school grounds… that substantially disrupts or interferes with the orderly operation of the school or the rights of other students, and that a reasonable person should know, under the circumstances, will have the effect of physically or emotionally harming a student or damaging a student’s property, or placing a student in reasonable fear of physical or emotional harm to his person or damage his property.”
The Anti-Bullying Bill of Rights also provides specific procedures that schools must follow in reporting and processing each incident. Specifically, all school employees are required to report all incidents of bullying the same day with a written report sent to the Principal within two days. The parents of all students involved must be informed and an investigation must be conducted by the designated anti-bullying specialist. There is even a time limit for the designated school specialist to conclude his or her investigation.
As far as public information, the Bill covers that, as well. The law requires the Department of Education to grade each school and each district based on required reporting of incidents. The school district is required to post this grade on its website. Knowledge is crucial. I encourage all parents to check their district’s website for their report card on bullying incidents. Parents and children should know that the law does not tolerate bullying and schools shouldn’t either.
I am often asked by the victims of negligent drivers whether they need to show up in municipal court for the ticket issued to the negligent driver. The answer to this question is “yes”. Even though the police officer issues the ticket, the officer arrived on the scene after the incident occurred so the other driver, who was not negligent, is the sole witness to the facts of the accident. Moreover, the “request” to appear is actually a “summons” to appear which is mandatory and subject to penalties for non-compliance.
The next area of inquiry by the innocent driver is what takes place in court. The first step is to check in as a witness to the case. Usually the Prosecutor will speak with the witness to explain whether there is a plea offer. Plea offers are extremely common in municipal court. There is usually an offer to downgrade the charge in exchange for a plea of “guilty” to that amended charge. While most Prosecutors will ask the injured person for their “consent” to downgrade the offense, the Prosecutor has the legal right, called “Prosecutorial Discretion”, to downgrade the charge without the consent of the victim. One should keep in mind that such a downgraded charge should not affect any decisions on fault made by the insurance companies. Insurance companies are not bound by the decisions made in municipal courts. Such downgraded charges and guilty pleas also shouldn’t affect any issues presented in a related civil case as the plea is usually entered with a “civil reservation”. That means that the guilty plea is not admissible as evidence of guilt or liability in a civil case where issues of injury or property damage are pursued. All issues in the civil trial must be proven, independent of anything that happened in municipal court.
I cannot stress enough the importance of knowing your listed “status” on your auto insurance policy. Are you a “named insured” or are you listed as an “authorized driver”.
I was again reminded of the fact that most people are unaware of the limitations of their coverage. For example, I have a client who was very seriously injured as a pedestrian crossing the street to where her car was parked. Yes, “her car” is covered by car insurance. However, she is not the “named insured” on the policy. She is only listed as a “driver” on the policy. Therefore, she would only have medical coverage if she were actually operating the insured vehicle, not as a pedestrian walking toward the car.
She was absolutely shocked to learn this. She and her fiancé live together but he is the “named insured” on the policy and she is listed as an authorized driver. She assumed she was fully covered by the policy since she is specifically named in the policy. If they were married, she would be covered as a “household family member”. However, they are not married so the only way to receive all the benefits of the policy, is to also be listed as a “named insured”.
I firmly believe insurance agents should advise their customers of the limitations when a driver is not a named insured and not a “family member”. However, not all agents explain this so it is imperative that the consumer ask the questions and know what the difference is between being the “insured” and being listed as a “household driver”.
We’ve all heard the saying, “You can’t fight City Hall”. Truth be told, you can fight city hall if you have enough documentation. In New Jersey, public entities have extensive immunity from being sued for dangerous conditions to public property. Not only does the claimed injury have to meet certain criteria, but the negligence of the public entity also has to meet certain criteria.
To summarize, in order to file a claim for compensation against a public entity, it must be demonstrated that the public entity had notice of the dangerous condition, or that it created the dangerous condition, and that their actions were palpably unreasonable.
A recent case decided in the Appellate Division demonstrates the importance of the investigative stage of these cases. In the case I am referring to, the plaintiff suffered serious injuries by falling in a crosswalk as a result of a three inch deep and 5 inch wide pothole filled with leaves. The case was pursued successfully by the injured person as a result of the thorough investigation as to the cause of the pothole and the opportunity of public employees to discover it and fix it.
Specifically, it was determined that the street was repaved over an open gas main box. Over time, the pavement collapsed, causing the hole. It was also determined that due to the busy intersection; a police officer was regularly present in the area of the pothole. Without those facts, the injured victim of negligence would likely not be compensated. That is why it is so very important to have a team on your side who knows these stipulations and understands the research that needs to be done in order to obtain compensation for your injuries.
Purchasing mobility equipment requires some research. I represent a client who has been wheelchair bound for many years. He is extremely independent and, as such, was looking to purchase a new motor vehicle. Obviously, he needed the vehicle to accommodate his wheelchair. He made a purchase based on the recommendation of a salesperson at a local mobility equipment dealer. The purchase included the mechanism necessary to lock in his wheelchair to the inside of the vehicle. When he received the wheelchair back from the dealer, the locking mechanism was installed.
Later that day, he went into one of the rooms in his home. Unfortunately, the locking mechanism on the bottom of the wheelchair got stuck on a floor vent and catapulted him out of the wheelchair. He sustained serious injuries. He later learned that there must be at least a 3 inch clearance between the locking mechanism and the floor. The mobility equipment dealer took no measurements of the chair and the flooring details in my client’s home.
Hindsight tells us that you cannot always rely on salespeople for recommendations when purchasing mobility equipment. To ensure your safety, research all of the options available from multiple dealers. Also, insist on measurements of your particular chair and a full inspection of your home to make sure the equipment is safe at home, out in public and in your vehicle.
Letting your automobile insurance lapse has significant consequences. Of course, there are fines to pay, but few know about the other consequences associated with letting your insurance lapse.
What I recently had to explain to a client is that if you are driving an uninsured vehicle and you are involved in an accident, you are not permitted the file a lawsuit against the negligent person for any damages. The client who recently consulted me had not paid her insurance premiums, causing the coverage to lapse. She was driving her car and, according to her, was being extra careful. She was sitting at a red light, minding her own business, when a driver, who was texting while driving, came up from behind and crashed into her car. The other driver received a ticket for careless driving but she also received a ticket for the insurance coverage violation. She paid the ticket but tried to have her car fixed through the negligent driver’s insurance company. That’s when she learned that she is barred from collecting any damages that are due to her. She was also injured, but was unable to pursue a claim for pain and suffering as well.
It should be noted that there is a statute which clearly states that an uninsured driver may not file a lawsuit for damages suffered while operating an uninsured automobile. The Supreme Court of New Jersey is currently considering an appeal which raises an issue under that statute. In one case, the uninsured driver died from injuries he sustained in the automobile accident which was no fault of his. His family, however, filed a claim for pain and suffering, on his behalf under the Survivor Act. This claim was dismissed by the Trial Court and the Appellate Division affirmed that dismissal. The family of that uninsured driver also filed a claim under the Wrongful Death Act which claims damages for the dependents left behind. Both Courts determined that the Wrongful Death Claim is not barred by the Statute. We will soon see how the Supreme Court views that issue, however, at this time, there is nothing barring a Wrongful Death Claim where the deceased was an uninsured driver.
I recently read a court’s decision interpreting a step-down provision of an insurance policy and realized that most consumers have no idea what a step-down provision is and how it impacts their family. A step-down provision limits claims under the uninsured and underinsured motorist benefits. The language of a step-down provision usually limits coverage to those who don’t have their own separate policy. It most often comes into play when there are multiple car insurance policies in the same household.
For example, assume that a new driver (let’s call him Eddie) lives with his parents but has a separate policy of his own. Because Eddie is less than 25 years of age, putting him on Mom and Dad’s policy would be extremely expensive. To cut down on the cost of driving, assume that Eddie buys a separate policy with only $25,000 in uninsured and underinsured motorist coverage. Let’s assume that Eddie is in a car crash where the negligent driver let his insurance lapse so there is no liability coverage. In order to recover damages for his economic and non-economic expenses, Eddie has to make a claim under his own policy for uninsured motorist benefits. However, Eddie only has $25,000 in uninsured motorist coverage.
If that isn’t enough, he can tap into Mom and Dad’s policy, assuming they have more coverage. This is allowed UNLESS Mom and Dad have a STEP-DOWN clause on their car insurance policy. Because Eddie is a named insured on a separate policy, Mom and Dad’s policy will step the coverage down to Eddie’s limits.
The moral of the story is always ask questions of your insurance agent when purchasing insurance. Find out if the policy has a step-down clause and question how it will play out in a variety of circumstances. Also, get price quotes on having a separate policy for that new driver; the benefits of having everyone on one policy may outweigh the additional cost.
When involved in a car crash, it is often difficult to remember what happened to your body during the impact. However, what part of your body hits what part of the interior should be documented as soon as possible. For example, I represent a driver who banged her knee on the dashboard after getting rear-ended. She didn’t think it was a big deal and felt significantly more discomfort to her neck which was whipped back and forth as a result of the impact. She went to the emergency room but did not mention that she hit her knee on the dashboard. She assumed it was just a bruise or contusion and not worth mentioning.
As the days passed, she felt that her knee was about to “give out” on several occasions. The injured knee did not actually “give out” but it felt unstable. Finally, after 2 weeks she reported it to her doctor who sent her for an MRI. The MRI revealed a posterior cruciate ligament tear. According to medical literature, the most common mechanism of injury to the PCL is a blunt trauma to the knee from the dashboard of a car during a collision. The injury is commonly referred to as “dashboard knee”.
This injury may be very painful and limiting. It may be a temporary or permanent source of discomfort. Surgery may be required to treat it, particularly if the instability causes damage to other ligaments in the knee. If the car crash was a result of the negligence and carelessness of another driver, you may be entitled to some compensation for the pain, suffering and disability caused by the injury to that knee. Therefore, if you hit your knee on the dashboard during a car accident, it should be mentioned to your first medical care provider. It certainly may resolve, or it could become a more troubling injury.
An Appellate Court Panel recently ruled that a church van is not considered an “automobile” for purposes of the New Jersey Law governing PIP (Personal Injury Protection). PIP benefits include payment of medical bills related to injuries sustained in an automobile accident. The PIP statute requires every standard automobile policy to carry such benefits for the named insured and family household members as well as passengers of the vehicle at the time of the accident. Commercial vehicles do not have to carry PIP benefits.
Vans have always been considered “automobiles,” however, this Appellate panel distinguished between a seven passenger minivan and a 15 passenger van with 5 rows of seating. The large van is not considered an “automobile” for purposes of the PIP statute and is not required to carry PIP benefits for its passengers. The “primary use” of the vehicle is also crucial. If the large van had been owned by a family and used primarily for personal use, PIP benefits may be available. However, in this case, the large van was owned by the church and its primary purpose was to transport church members. Clearly, the Court found, this van was a commercial vehicle and the passengers were not entitled to any PIP benefits from the van’s policy or their own private automobile insurance.