I am preparing for a jury trial in an Underinsured Motorist case, and I wanted to share some interesting, and perhaps disturbing, information with you regarding these claims. While what I am about to tell you is well-known in the legal community, I do not believe that the non-legal world is aware of New Jersey law in this area.

When a person is injured in an auto accident as a result of the negligence of someone else, the injured person is entitled to assert a claim for money damages for their losses, both economic and non-economic, sustained as a result of the negligence of the wrong-doer.  Economic damages include lost wages, damaged personal property, and other out-of -pocket expenses, but do not include any deductible or co-pay expenses incurred as a result of No-Fault Insurance payments of medical bills incurred by the injured person. Non-economic damages include pain and suffering, disability and impairment, worsening or weakening of faculties, loss of ability to enjoy life and other claims that are not easily subject to specific quantification. When the person causing the harm (the ‘wrong-doer’) does not have sufficient liability insurance coverage to fully satisfy the claims against them, the injured party may have an “Underinsured Motorist” claim if they have purchased Underinsured Motorist coverage. (When the wrong-doer has no liability coverage, the claim is called an Uninsured Motorist Claim, and is subject to a different set of rules.)

In the case that I am preparing for trial, my client sustained serious personal injuries in an auto accident that was solely caused by another driver. I filed a lawsuit against the offending driver, and the matter proceeded through the court system. The parties exchanged information about their respective positions, depositions were taken, and medical examinations of my client were obtained by the wrong-doer’s attorney. The case was eventually called for trial, and before the trial began, the case settled when the wrong-doer’s insurance company offered the full amount of their available liability coverage to my client.

My client had purchased auto insurance which included Underinsured Motorist coverage, an optional form of coverage which provides a source of monetary recovery when the wrong-doer does not possess adequate liability coverage, and a claim was asserted against that coverage. We were required to obtain the consent of my client’s auto insurer to accept the tender of policy proceeds from the wrong-doer’s carrier before we were allowed to settle the underlying lawsuit, and this was done.  A new lawsuit was filed, naming my client as the plaintiff, and my client’s auto insurer as the defendant, because the claim is a contract claim, seeking a recovery pursuant to the terms of the contract of insurance. This lawsuit was placed on an expedited track in the court system, and is now being called to trial.

New Jersey case law states that the jury in this case will not be told that it is a claim by my client, against his insurance carrier, for benefits to which is entitled under the terms of the policy. Instead, the court will require the attorneys to lie to the jury, and to pretend that the case before them is actually the underlying case, that of my client against the wrong-doer. This is true despite the fact that the attorney for the insurance carrier does NOT represent the wrong-doer, and may never have even met him. The court will also be required to lie to the jury, because the judge will categorize the claim as one individual against another, despite the fact that it is not true. This approach has been sanctioned by the New Jersey Supreme Court, in the case of Bardis v. First Trenton Insurance Company, 199 N.J. 265 (2009), where the court upheld a trial court verdict in a case where this same falsehood was presented to the jury. The Supreme Court’s rationale was that a jury that has been informed that the claim before them is being made against an insurance company, and not an individual, might award more damages than the evidence warrants, knowing that the claim is being paid by an insurance company, and not an individual. While it is my intention to ask the court, through a motion, to allow the true identity of the parties to be told to the jury, case law and prior experience suggests that my request will be denied by the court. 

I suggest that this approach is wrong, for several reasons. First, there is no basis to conclude that a jury will treat an insurance company any differently than another entity or individual. Second, it is not the place of the courts to protect insurance companies, but it is their obligation to provide a full and fair trial on all issues to all the parties to every claim. Truth is the essence of justice, and a system which is based on a lie cannot offer a full measure of justice. Justice Albin, in a concurring opinion, forcefully made this point, when he said: ” Whether in a UIM case or any other insurance coverage case, I believe that the jury can handle the truth, that the jury can be trusted to be fair to the true parties in interest, and that feeding fictions to the jury is an unacceptable way to run a transparent court system. I also believe that a properly instructed jury–even in an insurance coverage case–is capable of rendering a fair verdict. In courtrooms throughout this State, juries hear sensational  cases widely reported in the press, sometimes involving notorious defendants or plaintiffs, but we have faith that carefully selected jurors given proper legal guidance will do justice. I see no reason to depart from that paradigm for an insurance company in a UIM coverage case.”  He concluded his opinion with these words:

In closing, I would hold that the jury in a UIM coverage case, as in every other case, is entitled to know who the true parties are to the action. Here, the initial misrepresentation to the jury, which was responsible for the cascading mistakes that followed, proves the old adage: “Oh, what a tangled web we weave, / When first we practice to deceive” Sir Walter Scott, Marmion, canto I, intro., st. 17 (1808), quoted in Bartlett’s Familiar Quotations 378 (John Bartlett & Justin Kaplan eds., 16th ed. 1992).

I agree completely with the sentiments expressed by Justice Albin.

John Sakson is a Shareholder and Co-Managing Direcotr of  Stark & Stark’s in the firm’s Lawrenceville, New Jersey office, specializing in Accident & Personal Injury Law. For more information, please contact Mr. Sakson.