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Disfigurement or Permanent Injury Required in Car Accident Cases Where the Lawsuit Threshold Applies


Kenneth Vercammen & Associates Law Office help people injured due to the negligence of others. We provide representation throughout New Jersey. The insurance companies will not help. Don't give up! Our Law Office can provide experienced attorney representation if you are injured.

In order to recover damages in most in a car Personal Injury case, the plaintiff must prove by a preponderance of the evidence that he/she sustained injuries which fit into one or more of the following categories:
1. Death;
2. Dismemberment;
3. Significant disfigurement or significant scarring;
4. Displaced fracture;
5. Loss of a fetus;
6. A permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.

At the trial, the Judge will read the "formal instructions" to the Jury. They are called Request to Charge. The Request to Charge in an accident case was revised recently.

CHARGE 5.42
LIMITATION ON LAWSUIT OPTION

5.42 LIMITATION ON LAWSUIT OPTION 1 (Revised 4/06)
A. Introduction
In order to recover damages in this case, plaintiff must prove by a preponderance of the evidence that [he] [she] sustained injuries which fit into one or more of the following categories:
1. Death;
2. Dismemberment;
3. Significant disfigurement or significant scarring;
4. Displaced fracture;
5. Loss of a fetus;
6. A permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.

1 See N.J.S.A. 39:6A-8a. Though not numbered in the statute, the Limitation on Lawsuit Option within the Automobile Insurance Cost Reduction Act of 1998 (L.1998, c. 21 and c. 22) (“AICRA”), the categories are: (1) death; (2) dismemberment; (3) significant disfigurement or significant scarring; (4) displaced fractures; (5) loss of a fetus; (6) a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. The effective date of this provision of AICRA is March 22, 1999.

Therefore, the Limitation on Lawsuit Option shall apply to individuals who, at the time of the accident, were insured under automobile liability insurance policies issued after March 22, 1999. By way of example, if an individual was involved in a motor vehicle collision on March 23, 1999, but was still covered under a policy issued before the effective date of the statute (March 22, 1999), he or she will be subject to the verbal threshold charge applicable to L.1988, c.119 effective January 1, 1989.

CHARGE 5.42

If you find the injuries caused by the accident do not come within one of these categories, your verdict must be for the defendant. If you find the injuries caused by the accident do come within one of these categories, your verdict must be for the plaintiff.

B. Permanent Injury (Type 6)
In this case, the plaintiff alleges that [he] [she] suffered a permanent injury as a result of the motor vehicle accident. An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment. 2 Plaintiff must prove this claim through objective, credible medical evidence. Objective proof means the injury must be verified by physical examination or medical testing and cannot be based solely upon the plaintiff’s subjective complaints. Credible evidence is evidence you find to be believable. 2 This definition of “permanent injury” is taken directly from the Automobile Insurance Cost Reduction Act of 1998 (“AICRA”), N.J.S.A. 39:6A-8. In DiProspero v. Penn, 183 N.J. 477 (2005), the New Jersey Supreme Court held that the Legislature did not intend to require a plaintiff with a Type 6 injury to prove a “serious or substantial impact” on his or her life in order to pierce the verbal threshold. Therefore, a plaintiff need only prove a permanent injury, as defined in the statute, to recover for non-economic damages.

• CHARGE 5.42

C. Sample Interrogatories (Limitation on Lawsuit Option)
(Category 1) Has the plaintiff proven by a preponderance of the credible evidence that the decedent [insert name] died as a proximate result of the accident?
_____ Yes _____ No _____ Vote

(Category 2) Has the plaintiff proven by a preponderance of the credible evidence that [he] [she] sustained a dismemberment that was proximately caused by the accident?
_____ Yes _____ No _____ Vote

(Category 3) Has the plaintiff proven by a preponderance of the credible evidence that [he] [she] sustained a significant disfigurement or significant scarring that was proximately caused by the accident?
_____ Yes _____ No _____ Vote

(Category 4) Has the plaintiff proven by a preponderance of the credible evidence that [he] [she] sustained a displaced fracture that was proximately caused by the accident?
_____ Yes _____ No _____ Vote

(Category 5) Has the plaintiff proven by a preponderance of the credible evidence that she lost a fetus as a proximate result of the accident?
_____ Yes _____ No _____ Vote


• CHARGE 5.42

(Category 6) Has the plaintiff proven by a preponderance of the credible evidence that [he] [she] sustained a permanent injury that was proximately caused by the accident?
_____ Yes _____ No _____ Vote

(Damages) What amount of money will fairly and reasonably compensate the plaintiff for all injuries that were proximately caused by the accident?
$______________________ _____ Vote


5.50 TORT CLAIMS ACT THRESHOLD FOR RECOVERY OF DAMAGES FOR PAIN AND SUFFERING (Approved 1/02)

INTRODUCTORY NOTE
When the plaintiff's negligence claim arises against a government entity, the Torts Claims Act, N.J.S.A. 59:1-1 to 12-3, governs the claim. The Act provides specific exceptions to the doctrine of sovereign immunity. Except when the Act specifically imposes liability, public entities remain immune from negligence suits. N.J.S.A. 59:1-2. Accordingly, the Tort Claims Act must be strictly construed to permit lawsuits only where specifically delineated.
Subsection (d) of N.J.S.A. 59:9-2 sets forth a threshold for non-economic damages that a plaintiff must surmount to sustain a claim for pain and suffering. Note: The failure to reach the objective monetary and descriptive threshold set forth in N.J.S.A. 59:9-2 does not bar all causes of action, but merely bars recovery for pain and suffering component.
The section of the Act, in pertinent part and with added emphasis, reads as follows (as amended P.L. 2000, c. 126, ß 32, effective September 21, 2000):
No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided however that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600. (Prior to September 21, 2000, any cause of action that arose involving the threshold required medical treatment expenses in excess of $1,000.)
The courts have held that the plaintiff could prove future expenses to meet the monetary threshold. It must also be noted that, if the plaintiff has not met the monetary threshold, but the plaintiff sustained permanent injury or disfigurement, he or she may still recover economic damages for his/her permanent injury. See, Peterson v. Edison Tp. Bd. of Ed., 137 N.J. Super. 566 (App. Div. 1975); Rocco v. NJ Transit Rail Operations, 330 N.J. Super. 320 (App. Div. 2000).

GENERAL INSTRUCTION
Introduction
To recover damages for pain and suffering [as I have previously defined that measure of damages] in this case, the plaintiff must prove by a preponderance of the evidence that he/she sustained injury that fits into one of the following categories:
Note to Judge
Charge the appropriate category or both, depending upon the proofs introduced in each case.

1) Permanent loss of bodily function, and/or
2) Permanent disfigurement or dismemberment
For either category the plaintiff must prove that the medical treatment expenses incurred, as a proximate cause of this condition, exceeded $3,600. (If the cause of action arose after September 21, 2000. The amount is $1,000, if it arose before that date.)
B. Permanent Loss of Body Function
With respect to a permanent injury the plaintiff must prove:
1) A permanent loss of body function [here insert an appropriate description of body function claimed lost].
2) The loss need not be total, but must be substantial. Mere limitation is insufficient, by that I mean the plaintiff must prove this loss by a demonstration of objective credible medical evidence of permanent injury, because damages for temporary injury are not recoverable. The proof must be both objective and credible. Objective means that the evidence must be verified by physical examination, diagnostic testing and/or observation. Credible mean that the evidence is believable.
3) The plaintiff may not recover for mere subjective feelings of discomfort.
C. Disfigurement
1) The scaring, indentation and/or blemishes [here insert an appropriate description of the scar, indentation or blemish] must be an objectively significant disfigurement.
2) It must be more than a trifling mark discoverable on close inspection and must detract from the appearance of the person.

The disfigurement must be visible and not insubstantial.

To summarize, to recover for pain and suffering the plaintiff must prove by a preponderance of the evidence that he/she sustained . . . (choose appropriate category)
a permanent loss of a bodily function OR
a permanent disfigurement that is substantial OR
a dismemberment
and has met the monetary threshold.
If you so find then you may consider all of the evidence presented by the plaintiff relating to all of his/her pain and suffering from permanent injuries even those injuries that do not meet the threshold that you find were proximately caused by the negligence of the [here identify the public entity or public employee]. ,
Reale v. Tp. of Wayne, 132 N.J. Super. 100 (Law Div. 1975).
See, Hammer v. Tp. of Livingston, 318 N.J. Super. 298 (App. Div. 1999).
In a case where the public entity or employee is alleged to be a joint tortfeasor with a non-public defendant, then the non-public defendant will remain exposed to liability for pain and suffering where the threshold is not met by the plaintiff against the public tortfeasor. See, Rivera v. Gerner, 89 N.J. 566 (1982).

Charge 5.50

About the Author:
Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 17 miles north of Princeton. He often lectures for the New Jersey State Bar Association on personal injury, criminal / municipal court law and drunk driving. He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.
In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, Arbitration hearings and contested administrative law hearings.
Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.

KENNETH VERCAMMEN & ASSOCIATES, PC
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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the soft approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

Many years ago, I attended a seminar sponsored by the American Bar Association on Law Practice Management. This was to help insure that each of our clients is always treated like a person -- not a file! We recognize that you are innocent victims and that you have placed your trust in us. Please understand that we understand what you are going through. Feel comforted that we are here to help you.

If you retain KENNETH VERCAMMEN to represent you, we will give you the same advice we give each of our clients -- concentrate on your life, you family and your health. We will take care of everything else. Leave all of the work and worry about your legal rights to us. Trust us. Believe in us. Have faith in us as your attorneys. Understand that we will always to do what we believe is best for you and your case. Helping you is our job. In fact, it is our only job -- guiding injury victims like you through one of the most difficult times of your lives, with care and concern -- while fighting aggressively to the limits of the law to obtain compensation and justice for each of you!

Print our Personal Injury Questionnaire on our Website, Fill it out and Fax back, so we can determine if we can help you obtain an injury settlement. We would welcome an opportunity to prove to you what we have proven to thousands of injured clients -- that you can feel comfortable and secure in the fact that KENNETH VERCAMMEN - Trial Attorney We Fight To Win.

When you have been injured in an accident or collision, you are worried about who is going to pay your medical bills, lost wages, and other damages. The last thing you want is to be taken advantage of by an insurance company. If you dont protect your rights, you may not be able to make a claim.

Insurance companies have attorneys and adjusters whose goal is to pay you as little as they can. You need a New Jersey personal injury lawyer to fight for you. I am dedicated to helping your recover as much money as possible under the law.

You need an attorney who will work hard to protect your rights, maximize your insurance settlement and minimize the hassles of dealing with the insurance companies. You need an experienced and aggressive New Jersey trial lawyer with PROVEN RESULTS who will fight for you. Having an experienced personal injury lawyer can make the difference between getting what you deserve and getting nothing.

Without the threat of a lawyer who is willing to go to trial and seek a big jury verdict, why would an insurance company pay you what your claim is really worth? Lawsuits can be expensive, and many people do not have the money to pursue their claim. In every case, I advance all costs associated with pursuing your case and I do not ask you for a penny until we recover from the other side.

I am an experienced aggressive trial lawyer and a 3rd degree Black Belt. I am not afraid to take your case to trial if that is what it takes to maximize the amount of money your recover for your personal injury. I offer one-on-one service, and I will not hand your case off to an inexperienced lawyer or a paralegal.

Reduce the stress of making a claim.

Personal injury accidents can turn your life upside down. Making a personal injury claim can be difficult and time consuming. Once I take your case, you can stop worrying about dealing with the insurance companies and focus on recovering from your injuries. I take care of all of the paperwork, phone calls, and negotiations, so you can get on with your life.

p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offers a special -- For Settlement Only -- program. This means that if we are unable to settle with the insurance company, we will not go any further -- unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation.

We handle personal injury cases on a contingency fee basis.

This means: YOU DONT OWE ME A LEGAL FEE UNLESS I RECOVER MONEY FOR YOU.

Call our office to schedule a "confidential" appointment 732-572-0500

Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter.

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