The Verbal Threshold is a requirement set by the New Jersey Legislature for an individual to be compensated for bodily injuries suffered in an auto accident. The Verbal Threshold, or the Limitation on Lawsuit option, was created to reduce the cost of car insurance by limiting a person’s ability to seek compensation for noneconomic damages. The Verbal Threshold is codified at N.J.S.A. 39:6A-8.
When selecting a car insurance policy, a person has an option to select a lower premium in exchange for a limited right to seek compensation for damages occurring in a car accident. However, a person still has the option of selecting an unlimited right to seek compensation in exchange for a higher premium.
The Verbal Threshold is not a complete bar in seeking compensation for pain and suffering as the statute lists six exceptions. A person may proceed with a claim for pain and suffering if their injuries meet one of the following exceptions:
- Death
- Dismemberment
- Significant disfigurement or scarring
- Displaced fractures
- Loss of a fetus
- Permanent injury
Death, dismemberment, displaced fractures and loss of fetus are more clear-cut exceptions than significant disfigurement or scarring, or a permanent injury. Significant disfigurement or scarring, and permanent injuries are the most likely claims to be litigated.
The Supreme Court of New Jersey has defined a “significant” scar or disfigurement as one that “an objectively reasonable person could find that the scar or disfigurement substantially impairs or injures the beauty, symmetry, or appearance of a person, rending the bearer unsightly, misshapen or imperfect, deforming the person in some manner.” Soto v. Scaringelli, 189 N.J. 558, 574 (2007). Other factors that courts are to consider are the “appearance, coloration, existence and size of the scar, as well as, shape, characteristics of the surrounding skin, remnants of the healing process, and any other cosmetically important matters.” Id.
In Soto, the court found a scar on a person’s shoulder was not “significant” enough to breach the threshold. The judge reviewed the scar in person and verbally described it for the record and noted that the surgeon had done a remarkable job. The judge described the scar as approximately four inches in length and that it was not noticeable absent a strong light. The judge dismissed the case without permitting a jury to decide whether the person should be awarded compensation.
A permanent injury is defined as one that has not healed and will not heal to function normally even with further medical treatment. N.J.S.A. 39:6A-8(a). This injury must be proven with objective medical evidence. A person’s subjective complaints alone will not overcome the threshold.
A doctor must certify that a person has suffered a permanent injury as a prerequisite to filing a lawsuit. The doctor must state that their opinion is based on objective medical evidence and not solely dependent on the person’s subjective complaints. This certification must be provided to a defendant during the early stages of litigation for the case to continue. A court will dismiss a case absent this certification.
The Supreme Court of New Jersey has found that an MRI showing a herniated disc as certified by a doctor is sufficient objective evidence to allow a case to proceed to a jury. Pungitore v. Brown, 379 N.J. Super. 165 (App. Div. 2005). A jury will then deliberate whether the plaintiff’s injuries combined with any testimony, that may include subjective complaints and limitations on their activities of daily living, amount to a permanent injury. If a permanent injury is found, a jury then may award the plaintiff compensation for the injuries caused by the car accident.
The Verbal Threshold is not a complete bar to recovery but is a prerequisite for a person to overcome. This is in furtherance of the New Jersey Legislature’s goal of reducing the cost of car insurance by limiting car accident claims to those with severe injuries.
