GEICO Challenges Deemer Statute in New Jersey

Geico has challenged a New Jersey State Statute requiring auto policies issued out of state to provide a minimum amount of bodily injury liability coverage when the insured drivers are involved in accidents in New Jersey.  The case is Guerline v. Brian v. Richards, case number 081799, in the New Jersey Supreme Court.

As of December 7, 2018, the New Jersey Supreme Court justices had granted Geico’s petition for certification of a state Appellate Division panel’s August ruling directing the insurer to provide a minimum of $15,000 in bodily injury liability coverage for claims against its Florida-based policyholder who was involved in a motor vehicle accident in Newark, NJ in 2013.

Even though the Florida-based policyholder’s auto policy did not include any bodily injury coverage, the appellate panel found that, under a decades old New Jersey law dubbed the “Deemer statute,” Geico was still required to supply the minimum amounts of such coverage included in a standard auto policy issued in the Garden State ($15,000 per person or $30,000 for more than one person per accident).

The Supreme Court justices will decide the following question: Does the Deemer statute apply to an automobile insurance policy written in Florida for a Florida resident who had an accident in New Jersey, where the Florida policy did not include any bodily injury liability coverage?

The Supreme Court of New Jersey’s decision will have a major impact on motor vehicle litigation in New Jersey. Thanks to Jon Avolio for his contribution to this post.  Please email Brian Gibbons with any questions.





Municipal Violation Does Not Give Rise to Tort Liability (NJ)

A municipal ordinance that seemingly created tort liability was challenged in Doremus v. DeLorenzo. Plaintiff filed a complaint against defendants alleging she sustained personal injuries while walking on the sidewalk by defendant’s residential property. Plaintiff asserted that a town ordinance required abutting property owners to maintain the sidewalk, and failing to do so would impose liability on the property owner.

The ordinance stated in part that in an on any public street, the sidewalks shall be maintained at the expense of the abutting property owner as provided by the law. The courts have long held that municipal ordinances cannot create tort liability with regard to residential landowners. Further, it is well-settled law that residential homeowners are not liable for injuries caused by the condition of sidewalks abutting their property.

The only exception to this rule is where a residential property owner negligently repairs the public sidewalk by themselves for the direct use, or where the owner obstructs the sidewalk in such a manger as to render it unsafe for passersby. However, plaintiff did not allege that the defendant engaged in negligent repairs or obstruction of the sidewalk.

Ultimately, the court found that a municipal ordinance does not, and cannot impose liability on defendants. As such, defendant was protected by common-law public sidewalk immunity and plaintiff’s claims were dismissed.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

Surgery Not Necessarily A Permanent Injury Under Tort Claims Act (NJ)

In a claim against a New Jersey public entity, a plaintiff must prove a permanent and substantial injury to permit recovery.  Under the Torts Claims Act, public entities are immune from suits unless there is permanent loss of a body function, permanent disfigurement or dismemberment.

In Paz v. State of New Jersey, the plaintiff suffered injuries to her neck, back and shoulders after a trip and fall accident on a sidewalk at the Motor Vehicle Commission. She was diagnosed with cervical disc herniation, chronic neck pain, cervical neck pain, cervical radiculopathy, lumbar disc herniation, lumbar radiculopathy, chronic back pain, status post lumbar microdiskectomy and failed back syndrome.

By all accounts, plaintiff enjoyed a good surgical outcome,  and reported her pain was largely resolved just two weeks after surgery. Plaintiffs treating doctor stated that she had reached maximum medical benefit. She returned to work and remained employed for two years following the  accident.  Although she complained of debilitating pain, plaintiff  had no medical restrictions on her, and she relied upon over-the-counter medications for pain relief.

Plaintiff’s medical expert  found a decreased range of motion in all directions in her neck, but he did not identify the degree to which her range of motion was decreased,  or how that resulted in the substantial loss of any bodily function.

The court found that the plaintiff did not sustain a permanent loss of an bodily function under the language of the Torts Claims Act. Although it is not necessary for a plaintiff to prove a total permanent loss of use of a bodily function, “a mere limitation on a bodily function” will not suffice. Similarly, “an injury causing lingering pain, resulting in a lessened ability to perform certain tasks because of the pain,” is insufficient.

The court dismissed the plaintiff’s claim, finding that she failed to demonstrate any reduction in normal function that was both permanent and substantial. Although unreported and not precedential, this case is an example of the threshold of injury required under the Tort Claims Act.  Even surgery may vault the requirement of a substantial and permanent injury.  The court will examine how a plaintiff has recovered from injuries and to what extent residual impact there has been on life a person’s function.

Thanks to Heather Aquino Obregon for her contribution.

For more information, contact Denise Fontana Ricci at .


Discovery Rule Applies to Notice Provisions of the NJ Tort Claims Act.

As a prerequisite to proceeding with a tort claim against a public entity, a plaintiff must file a notice of claim with the public entity within ninety days of the accrual of the cause of action.  Under “extraordinary circumstances” accompanied by a showing that the public entity had not been substantially prejudiced, a plaintiff may file a late notice of claim within one year of the accrual of the claim.  Failure to file in accordance with these statutory provisions bars a plaintiff from bringing a tort claim against the public entity.

The New Jersey Supreme Court in Elazar v. Macrietta Cleaners, Inc. held that the common law discovery rule applies to determine the date on which a claim against a public entity begins to accrue.  Plaintiffs owned an electronics repair store adjacent to a dry cleaning store.  Township owned property behind the dry cleaning store.  In the late 1980s, plaintiffs noticed a chemical odor emanating from the dry cleaning store, and began having medical problems in the early 1990s.  In 1998, the dry cleaning store arranged for the removal of underground storage tanks.  In 2010, the dry cleaning store retained an environmental consultant who sampled air quality.  In 2011, plaintiffs received two letters from the consultant, which advised that soil located on the dry cleaning store and the Townships’ properties was going to be excavated due to evidence of soil contamination emanating from the underground storage tanks.  In January 2012, plaintiffs were advised by their doctors that their medical conditions were connected to the air contaminant reported by the consultant.  In March, 2012 plaintiffs retained an attorney who filed an OPRA request with the New Jersey Department of Environmental Protection that resulted in the production of documents in July 2012 indicating that the leaking underground storage tanks had been on Township property.  In September 2012, plaintiffs filed suit against the dry cleaning store, and a notice of claim against the Township.  One year later, plaintiffs amended their complaint to join the Township.

The Township moved for summary judgment, arguing that plaintiffs should have been aware in 2011 (i.e. when they received the letters from the environmental consultant), that they had a potential claim against the Township.  Accordingly, the Township argued that plaintiffs’ claims were barred since they failed to file a notice of claim within 90 days of receipt of those letters.  In opposition, the plaintiffs argued that their claim was timely because it was filed within ninety days of July 2012, the date on which they received documents from the NJDEP that revealed the tanks were located on Township property.  The Supreme Court agreed with the plaintiffs, and  held that the common law discovery rule applied to the notice of claim procedure in the Tort Claims Act.  The standard was whether plaintiffs knew or should have known of sufficient facts to support their claim against the Township.

In the context of multi-defendant cases, it is possible for a plaintiff to be reasonably unaware that a third party may also be responsible when it is clear that another party is responsible.  Therefore, the accrual clock does not begin ticking against the third party until the plaintiff has evidence that reveals the other party’s responsibility.

Thanks to Michael Noblett for his contribution to this post.




NJ Tort Claims Act Defeats Contractor’s Catastrophic Injury Claim

Plaintiff William Muha became paralyzed from the waist down when he fell off a ladder after accepting a job from Fast Signs to install signs on a column at Kean University.  Muha filed a worker’s compensation claim against FastSigns and a notice of claim against the University.  The worker’s compensation Judge dismissed plaintiff’s petition holding that plaintiff was an independent contractor and not an employee.  The case was arbitrated resulting in a $6 million award with 50% of the comparative fault attributed to plaintiff.  The defendants filed a trial de novo and moved for summary judgment on plaintiff’s claims.  The Trial Court granted defendants’ motions.  Plaintiff appealed.  On February 8, 2017, the Appellate Division affirmed summary judgment in favor of defendants.   The facts in Muha v. Kean University are not complex:

The first day of the sign installation was uneventful.  Although plaintiff requested a lift, the parties eventually settled on a 40’ foot ladder provided by one of the defendants.  Plaintiff’s father held the ladder for some of the installation.

On Day Two, the ladder plaintiff used on the day before was not available.  Plaintiff did not tell the University that he needed a ladder.  Instead, plaintiff decided to borrow his father’s ladder.  But this time his father did not help plaintiff. As Muha was cleaning the column to install the sign, the ladder “kicked out” and began leaning toward the left.  Plaintiff fell, hitting the ground and became paralyzed from the waist down.

The Court held that plaintiff failed to establish a prima facie case against the University under the Tort Claims Act (“TCA”). See N.J.S.A. § 59:4-2.  The Act provides that a public entity can be liable for an injury caused by a condition of its property if plaintiff establishes a “dangerous condition” existed on the property that proximately caused the injury and that the injury was “foreseeable.”  In this case, plaintiff was using his father’s ladder –not one provided by the University.  Therefore, the defendant did not create a dangerous condition as required by the statute.  Also, the Court noted that Plaintiff did not argue that the building or the column, where the signs were to be hung, was a dangerous condition.  Finally, plaintiff’s decision not to advise the University of the issue with the ladder and to solve the problem himself by using his father’s ladder, eliminated plaintiff’s ability to prove actual or constructive notice.

The Court also provided a helpful analysis of whether the plaintiff was an independent contractor or an employee.  “FastSigns did not retain control of the manner or means of the work that was to be performed.  FastSigns was not present at the location on the day of the accident, did not provide plaintiff with the tools needed to install the vinyl signs other than the actual signs themselves, and … plaintiff [and not FastSigns had] direct communication with Kean [the client].”  The Court also determined that plaintiff was not “incompetent,” in other words he was experienced with sign installation and skilled using a ladder at least three times per week. The Court also did not find that the sign installation was an inherently dangerous job or “nuisance per se.”  Therefore, the Court concluded plaintiff was an independent contractor.

The Court’s practical approach is notable: “[R]outine precautions such as someone hold the ladder could have decreased plaintiff’s chances of injury.”  Plaintiff’s serious injuries did not override the fact-sensitive analysis of the employment relationship and the events leading up to the accident.

Thanks to Ann Marie Murzin for her contribution.

For more information, contact Denise Fontana Ricci at .