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This blog, written by Executive Committee-Member and Litigation Department Co-Chair Betsy G. Ramos, Esq., focuses on liability litigation cases decided in New Jersey courts.

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Equitable Tolling Does Not Apply to Claims Against Public Entities Under the Tort Claims Act’s Statute of Limitations

On Aug. 5, 2022, Timothy Scruggs boarded a New Jersey Transit (NJT) bus in Philadelphia. As he walked down the aisle, the bus began moving, causing Scruggs to lose his balance and fall against a broken seat, sustaining an injury. Two years later, on Aug. 5, 2024, Scruggs filed a lawsuit against NJT, a New Jersey public entity, in the Pennsylvania Court of Common Pleas in Philadelphia. Scruggs did not file a lawsuit in New Jersey for another 7 weeks. Defendant NJT filed a motion to dismiss Plaintiff Scruggs’ New Jersey complaint for violating New Jersey’s Tort Claims Act’s (TCA) statute of limitations of 2 years. Plaintiff opposed. The issue in Scruggs v. N.J. Transit Corp., 2026 N.J. Super. Unpub. LEXIS 1006 (App. Div. May 13, 2026), was whether equitable tolling applied to a lawsuit against a public entity under the TCA.

Equitable tolling is, as it name suggests, an equitable remedy where the “interests of justice, morality, and common fairness” will excuse the clear violation of a time-limitation period. While limitations periods are typically gray deadlines that are subject to equitable tolling, this is generally not the case against a public entity as it is to a private entity or when it would be in direct conflict with the relevant statute, such as the TCA.

The TCA’s guiding principle is that immunity from tort liability is the general rule, and liability the exception and supporting case law demands it be strictly construed. Section 59:9-8(a) of the TCA bars a claimant from recovering against a public entity if “two years have elapsed since the accrual of the claim.”

Nevertheless, in this case, the trial court denied NJT’s motion to dismiss and applied equitable tolling, finding that Shruggs’ suit filed in Philadelphia fell under the two year TCA statute of limitations in New Jersey. NJT asked the trial court to reconsider its opinion, stating it had misapplied the equitable remedy. The trial court reconsidered its opinion and reversed itself, agreeing that the TCA must be strictly construed. Scruggs appealed.

The Appellate Division agreed with the trial court on its reversal, confirming that there was no place for equitable tolling in the TCA’s statute of limitations. The appellate court pointed to the plain reading of the TCA’s limitation language and how it “expressly precludes” a claimant from asserting a cause of cation more than 2 years after the date of injury. The court expressly indicated that equitable tolling was not available to actions against public entities, such as NJT, under the TCA because the legislature made it clear that courts must strictly construe the TCA.

Snow Tubing is the Equivalent of Skiing Under the New Jersey Ski Act

At the end of December, 2020, Plaintiff Martin McGuinniss took his family snow tubing at Campgaw Mountain, operated by Defendant Ski Campgaw Management, LLC (Campgaw). After a few runs, McGuinniss went down the hill and struck a bunched-up rubber mat, “catapulting” him into the air. He landed on his left shoulder and fractured his collar bone. The question in McGuinniss v. Ski Campgaw Mgmt., LLC, 2026 N.J. Super. LEXIS 46 (App. Div. Apr. 20, 2026) became whether snow tubing was an activity similar to skiing that protected Campgaw from Plaintiff’s personal injury suit under the Ski Act.

The tubing hill at Campgaw Mountain was divided into several lanes separated by berms of snow. Positioned at multiple points along each lane were rubber deceleration mats, equipment the ski industry accepted as an effective method of moderating speed on tubing hills. Further, Campgaw had employees positioned at the top and bottom of the hill who communicated by radio when each lane was clear for the next tube to go down.

Upon arriving at the mountain, McGuinniss signed a release where he acknowledged the inherent dangers of snow tubing. On his final run, McGuinniss was mid-hill, about 20 to 30 feet away from the first mat when he saw it had bunched up. Moving too fast to stop, he hit it, sending him into the air. After landing, he went home, returning to the mountain the next day to fill out a report. There had been 45 prior reports of accidents on the hill in the previous 2 years, but none of them were due to bunched-up mats. McGuinniss sued Campgaw for their negligence and breach of their duties under the Ski Act in causing his injury.

The New Jersey Ski Act (N.J.S.A. 5:13-1 to -11) limits the liability of the operator of a ski facility and protects it from the risks inherent in the law’s listed activities. Arising out of the uncertainty ski resorts faced after a 1970’s decision opened them to greater liability for injuries on their slopes and raised the costs of insurance, the Ski Act limited an operator’s liability to one of the narrowly defined duties in the Ski Act. Those duties required the operator to remove obvious, man-made hazards. It also protected an operator for clearly marked  equipment necessary for the operation of the ski area, and only then would the operator be liable if they knew or should have known about such a condition and had time to correct it. The Ski Act’s language defined an “operator” as one who welcomed paying customers to “ski . . . or operate skimobiles, toboggans, sleds, or similar vehicles.”

After discovery, Campgaw moved for summary judgment, asking the trial court to dismiss Plaintiff’s complaint under the Ski Act. McGuinniss argued that the Ski Act did not apply to snow tubing and, under a basic theory of negligence, Campgaw failed to observe and inspect the placement of the deceleration mats which created an unreasonable risk. The trial court agreed with McGuinniss that the Ski Act did not govern snow tubing. The court focused on control, finding the free-sliding snow tubes were “fundamentally different” from skiing or sledding because snow tubes lacked steering mechanisms or any ability to control their speed. Campgaw appealed.

The Appellate Division reversed the trial court and specifically held that snow tubing fell under the Ski Act because a snow tube is a “similar vehicle” defined in the Ski Act. The Court read the “similar vehicle” phrase broadly to include those used in snow-based recreational activities because each of them involved moving over snow-covered terrain and were subject to the same variables and inherent risks of winter activities. The Court disagreed with the trial court’s focus on controllability because nothing in the Ski Act made any reference to whether any of the listed vehicles’ inclusion relied on the issue of control; indeed, many sleds and toboggans lack braking or steering mechanisms. As a result, despite Plaintiff’s arguments, snow tubing was not so “fundamentally different” from these other activities, warranting inclusion under the Ski Act.

Applying the Ski Act to facts of McGuinniss’ case, the Court focused on Campgaw’s duty to remove man-made hazards that was limited to those hazards they knew or should have known about and had a reasonable opportunity to fix. However, because McGuinniss himself said that he only saw the bunched-up mat when he was only 20 to 30 feet away and moving quickly, he could not establish Campgaw’s employees, who were located at the top and bottom of the hill knew about the condition – they had told him the lane was clear when he began his run. Also, despite prior accidents on the hill, McGuinniss could not show that any of them were caused by bunched-up mats, dooming his claim under the Ski Act.

Broadly-Read Insurance Policy Exclusion Allows Insurer to Deny Coverage for Pharma Company Due to Chairman’s Alleged Self-Dealing Scheme by New Jersey Supreme Court

Mist Pharmaceuticals (Mist), sought coverage from Mist’s insurer, Berkley Insurance Company (Berkley) under a Directors and Officers (D&O) policy for the damages and costs of defense arising out of two lawsuits. Those lawsuits alleged Joseph Krivulka, Mist’s Chairman, engaged in self-dealing between Mist and other entities he controlled. Berkley denied coverage to Mist, stating that coverage was not available to Mist arising out of allegations in the suits due to Krivulka’s roles with other entities. The primary question in Mist Pharms., LLC v. Berkley Ins. Co.,  2026 N.J. LEXIS 397 (2026), before the New Jersey Supreme Court was whether Berkley properly denied coverage for losses “in any way involving” wrongful acts by Krivulka serving in a capacity for any other entity than Mist.

Mist entered a D&O policy with Berkley in 2014 that covered Mist, including Krivulka in his role as Chairman, for any claims made against them for any alleged “Wrongful Act.” A “Wrongful Act” to mean any allegations of a breach of duty or neglect against either Krivulka, in his capacity as Chairman, and Mist. The policy included coverage for damages and costs of suit, but not to any claim arising out of damages not covered, or excluded, by the policy. One such exclusion, the “Capacity Exclusion,” stated that Berkley would not have to make any payments for a claim against Mist or Krivulka based upon or arising out of “or in any way involving any Wrongful Act” by Mist or Krivulka (in his capacity as Chairman).

An outside LLC filed the two lawsuits in question against Mist and Krivulka alleging that Akrimax Pharmaceuticals (Akrimax), a pharmaceutical company Krivulka formed in 2007, which he operated, and of which the LLCs were members, engaged in a scheme to divert funds from Akrimax to Mist. Akrimax was not an insured under Mist’s policy with Berkley.

Shortly after receiving the suit in late 2015, which named Mist, Krivulka, and several other Mist-related entities Berkley did not insure (including Akrimax and other entities owned or controlled by Krivulka), Mist submitted the claim to Berkley. After initially providing partial coverage, an ultimate decision by Berkley disclaimed coverage entirely. Causing Mist to file suit.

Mist advanced several claims against Berkley, primary amongst them was that Berkley misinterpreted the Capacity Exclusion. Mist argued that the D&O policy should cover “dual capacity” situations where an officer acts on behalf of both an insured and an uninsured entity. Berkley countered, arguing the plain meaning of the Capacity Exclusion barred coverage to Mist because all of the underlying allegations arose out of Krivulka’s self-dealing and misconduct as a director of Akrimax, an uninsured entity, not Mist.

The Supreme Court agreed with Berkley, finding that the underlying lawsuits fell squarely within the Capacity Exclusion. It determined that the repeated “or” in the exclusion indicated the exclusion should be read in the disjunctive, meaning that each term separated by an “or” is, on its own, sufficient to trigger the exclusion and deny coverage. That meant the phrasing “based upon” or “arising out of” or “in any way involving any Wrongful Act” should be interpreted very broadly. Here, there are allegations against multiple Krivulka-controlled entities, all of which share one common feature – Krivulka’s role as a director of an entity not insured by Berkley. Each allegation against Mist, or Krivulka as an insured through Mist, was related to his capacity as a member of an uninsured entity. Therefore, each of the allegations asserted against Krivulka, and therefore against Mist, implicate conduct outside of the scope of his covered capacity as the Chair of Mist, and thus excluded from coverage. The Court further disagreed with the “dual capacity” claim, stating that even if Krivulka was acting on behalf of Mist, the “scheme” allegations arose out of his role at Akrimax – an entity Berkley did not insure, and all of the claims against Mist or Krivulka were related to his leadership of Akrimax.

New Jersey Supreme Court Unanimously Holds Future Medical Costs Still Payable by PIP are “Collectible” and Inadmissible at Trial

After she was injured in a car accident in 2016, Lakita Murray applied for Personal Injury Protection insurance benefits (PIP) that would pay her all of her post-accident medical bills up to $250,000. Her treatment after the accident did not hit that limit, nor did her medical expert’s opinion of what he anticipated to be her future medical expenses. After the trial court allowed a jury to hear the evidence of her future medical expenses, leading to a significant award in her favor, the appeals process led all the way to the New Jersey Supreme Court where, in Murray v. Punina, 2026 N.J. LEXIS 387 (2026), in an opinion handed down earlier this week, the issue was whether Murray’s evidence of future medical expenses is admissible at trial when those projected expenses would not exceed her PIP coverage limits.

Under New Jersey law, PIP benefits are intended to promptly pay the medical expenses of someone injured in a motor vehicle accident, regardless of whether the injured person was at fault (hence it’s official but less common name, “No-Fault” insurance). A caveat of PIP benefits under New Jersey law is that any amount “collectible” under PIP, that is any amount that falls within the limits of an injured person’s PIP coverage, may not be presented as evidence of damages when that plaintiff sues for their injuries at trial.

After her accident, the cost of Murray’s treatment before trial did not exceed her PIP limits of $250,000. In a deposition prior to trial, Murray’s expert opined that her future medical expenses – treatment Murray stated she would like to have but did not have prior to trial – would amount to between $42,000 and $160,000. Prior to trial the defendant filed a motion with the court to remove that testimony arguing that evidence of these expenses is inadmissible under the PIP law. The trial court denied the motion and admitted the expert’s opinion of how much her future medical treatment would cost. The jury found in Murray’s favor and awarded her $100,000 in future medical expenses. The defendant appealed on three basic facts: 1) Murray was eligible for $250,000 in PIP benefits, 2) those benefits had not been exhausted prior to trial, and 3) the expert’s projected future expenses would not exhaust the remainder of Murray’s PIP benefits. The Appellate Division reversed the trial court, finding that because PIP had not been exhausted, the expert’s proposed future medical expenses were still “collectible” under PIP and, thus, inadmissible at trial.

Murray asked the Supreme Court to review this opinion. She claimed future medical expenses are not “collectible” or “paid” as outlined in the law because they had not yet been incurred, and if they had not been incurred, they were not yet “collectible.” The defense argued  that any evidence of medical expenses, past or future, that do not exceed PIP limits are either “paid” or “collectible” under PIP and are thus inadmissible at trial.

The Supreme Court considered the arguments and agreed with the Appellate Division and defendant that future medical expenses that were “collectible” by PIP were inadmissible in a personal injury trial. The Court stated that this conclusion best reflects what the legislature clearly intended in passing the No Fault Act in that any amounts “collectible or paid” under PIP were inadmissible as evidence against the tortfeasor. Further, the Court disagreed with Murray’s position in that categorizing future expenses as “unpaid” and thus admissible as evidence, would allow a Plaintiff to defer treatment until after trial, and unfairly expose a defendant to greater exposure. Perhaps most importantly, the Court clearly voiced its distaste and rejection of a “double recovery,” or permitting a plaintiff to collect twice on future medical bills. It reasoned that if a plaintiff were allowed to show a jury future medical expenses that PIP could still pay, the Plaintiff would be able to recover those costs in the form of a jury verdict, and again from PIP. This, the Court determined, was not the purpose or intent of the PIP law.

Personal Injury Complaint Dismissed Against County Due to Failure to Comply with Notice Provisions of Tort Claims Act

On August 26, 2020, Plaintiff Rachel Kasuch was injured while riding her bicycle in Middlesex County Greenway, owned and operated by Defendant County of Middlesex. As she rode on a path, her foot caught on a stabilizer leg of a front end loader being operated by a County employee. This contact caused her to fall over her handlebars and suffer injuries. The issue in Kasuch v. County of Middlesex, 2026 N.J. Super. Unpub. LEXIS 790 (App. Div. Apr. 20, 2026), was whether the lawsuit should be dismissed due to Plaintiff’s failure to provide proper notice of her claim to the County, as required by the Tort Claims Act (“TCA”).

To be able to sue a New Jersey public entity for an injury, the injured party must first provide written notice of the claim to that public entity within 90 days of the incident. This notice is a prerequisite to filing a lawsuit against that entity. N.J.S.A. 59:8-3 recites the basic information which must be included in that notice of claim. If the individual fails to meet the strict requirements of this law, the claimant could argue that there was “substantial compliance” with the notice requirement. That was the argument made by plaintiff in this case.

At the time of the accident, a County employee was clearing brush from a creek along a paved County path. The employee was using a yellow loader with a backhoe and front bucket parallel to the creek. One of the loader’s tires was on the stone along the path and the other tire was on the paved path, partially obstructing it. The employee extended the loader’s two stabilizer legs, which were low to the ground.

According to Plaintiff, she saw the yellow loader but did not see the stabilizer leg on the path. She assumed she could ride past it. As she rode past the loader, the pedal of her bicycle caught on the extended stabilizer leg. That caused her to fall over her handlebars and fall to the ground.

A County employee filled out an operations report which described the accident, her name, address, and driver’s license number. It mentioned that plaintiff suffered a cut chin and dizziness. There was also a police report prepared which included Plaintiff’s name, address, date of birth, and home telephone number.

After the accident, the defendant’s third party administrator’s adjustor reached out to Plaintiff to obtain personal information, asking for her social security number, gender, and date of birth for purposes of fulfilling Medicare reporting requirements. Plaintiff refused to provide this information. Thereafter, the adjustor received a letter of representation from Plaintiff’s attorney advising of his representation and providing a copy of the police report, which the adjustor already had. But, the letter failed to describe Plaintiff’s injuries, demand a specific amount of damages, or set forth a theory of defendant’s liability for plaintiff’s injuries.

After the expiration of the 90 day notice of claim period, not receiving a notice of claim, the adjustor closed his file. In response to a February 17, 2021 telephone inquiry made to the adjustor by the attorney whether he had received a notice of claim from the plaintiff, the adjustor sent out a denial letter.

On November 2, 2021, plaintiff filed a lawsuit against the County, asking for damages due to her accident. She alleged in her complaint that she had filed a notice of tort claim but did not identify the entity upon which the notice of claim was served. However, in discovery, plaintiff produced a copy of the notice of claim, showing that it had been filed with the State Department of Treasury. The notice identified the accident as occurring in Middlesex County Greenway and the responsible agency as Middlesex County. Yet, plaintiff produced no evidence that she filed the notice with the County.

Thereafter, the County filed for summary judgment on the basis that plaintiff failed to file a notice of claim with the County. Plaintiff opposed the motion, arguing that the police report and her attorney’s letter to the adjustor constituted “substantial compliance” with the notice requirement of the Tort Claims Act. The motion was initially denied without prejudice and the judge permitted the parties to conduct discovery.

After discovery, the County then re-filed its summary judgment motion on the notice of claim issue. Now plaintiff argued that the County must have received a copy of the notice from the State because the County conducted an investigation. In the alternative, she argued that she substantially complied with the notice requirement. The trial court accepted the latter argument and denied the motion.

However, thereafter, the County filed a summary judgment on the merits of the case, arguing that the temporary parking of the loader along the paved path did not constitute a dangerous condition and that plaintiff did not act with due care to avoid the loader as she attempted to pass it. That argument the trial court accepted and granted summary judgment, dismissing the lawsuit.

That decision prompted the plaintiff to appeal the dismissal of her lawsuit to the Appellate Division. The County cross-appealed, arguing that its prior motion to dismiss for failure to comply with the notice requirement of the TCA should have been granted.

As it turns out, the Appellate Division agreed with the County that its motion on the notice requirement should have been granted, reversing the trial court’s denial of that motion. Hence, it did not reach the plaintiff’s appeal on whether summary judgment should not have been granted on the merits, finding it be moot

The Appellate Division noted that the Tort Claims notice provision serves several purposes. It permits the public entity time to review and settle meritorious claims prior to a lawsuit being filed, it provides prompt notification of the claim to adequately investigate the facts and prepare a defense, it affords the public entity a chance to correct the conditions, and informs the public entity in advance as to the indebtedness or liability that it might expect.

The notice of claim was due 90 days from the accrual of the incident, which here made it due by November 24, 2020. While plaintiff addressed her notice of claim to the State Department of Treasury, there was no evidence that she filed it with the County. Filing with the State Department of Treasury would not constitute filing this notice with the County. It must be filed directly with the specific entity against whom the claim is being made.

Next, the Court considered whether the written notification by plaintiff’s attorney constituted “substantial compliance” so as to fulfill the notice requirement. The Appellate Division found it lacking.

The notice must include basic information, including the person’s name and address. That requirement was fulfilled with the attorney’s letter and the police report.

It must identify the date, place and circumstance of the incident giving rise to the claim and must include the name of the public entity or employee causing the injury or damage, if known. The Court found that requirement also fulfilled.

But the Appellate Division found that the letter and police report did not provide “a general description of the injury, damage or loss incurred,” nor did it indicate “the amount claimed, including the estimated amount of any prospective injury, damage or loss, insofar as it may be known.”

The Court found that plaintiff claimed substantial injuries beyond a lacerated chin. Plaintiff failed to notify the County of the extent of her injuries. As a result, the County was unable to assess its indebtedness or potential liability. In addition, neither the operations report, the police report, nor the attorney’s letter identified plaintiff’s theory of the County’s liability for her claimed damages.

Further, the Court pointed out that the plaintiff failed to provide any explanation as to why she completed the State’s claim form, but failed to file with the County, the correct entity. The Appellate Division found that “[f]iling the incorrect form with the incorrect entity does not constitute a series of steps taken to comply with the notice provisions of the TCA.”  Nor did she provide any reasonable explanation why her attorney’s letter did not describe her injuries, quantify her damages, or set forth a theory of defendant’s liability for those damages.

The Court held that this failure to file a notice of claim prejudiced the County because “it was deprived of the opportunity to investigate and attempt to remediate a purported dangerous condition and assess and attempt to settle plaintiff’s damages claim prior to the filing of the complaint.”

Therefore, the Appellate Division concluded that the trial court’s finding that plaintiff had substantially complied with the notice provisions of the TCA was not supported by the evidence in the record. The Court reversed the trial court’s denial of the motion filed by the County based upon the plaintiff’s failure to comply with the notice requirement and remanded the matter back to the trial court to dismiss the lawsuit on that basis.

Court Upholds Oral Settlement of Personal Injury Claim Immediately Following Auto Accident

Plaintiff Ravon Hinton was involved in an automobile accident with Defendant Keyla Rivas Acosta on September 17, 2023. Immediately following the accident, Hinton offered to Defendant to settle the claim if Defendant would pay him $500 in cash. Acosta agreed to settle and, after negotiation as to the amount, paid Plaintiff $400. The issue in Hinton v. Acosta, 2026 N.J. Super. Unpub. LEXIS 806 (App. Div. Apr. 22, 2026) was whether this oral settlement agreement was enforceable so as to bar the lawsuit subsequently filed by Hinton against Acosta.

The accident happened when Hinton was walking across an intersection in Paterson and was struck by Acosta’s car. It was a dark and rainy night and Hinton was wearing dark clothing. Immediately following the accident and before police arrived Hinton told Acosta that there was no need to call the police or file an insurance claim or pursue any legal action against her in exchange for $500 in cash.

Despite that offer, Acosta contacted the Paterson police department and Officer Cesar Nunez arrived to respond to the call. Thereafter, the interaction between Hinton and Acosta was captured on Nunez’s body worn camera. In the footage on the camera, it shows Hinton repeatedly expressing his desire to accept $500 cash from Acosta. Caught on camera are the negotiations between Hinton and Acosta concerning a cash settlement for this accident in which Hinton eventually agreed to accept $400 to settle.

However, Acosta did not have that much cash and told the officer she would need to stop at an ATM to secure the funds to pay plaintiff. Hinton, Acosta, and the officer thereafter located an open ATM and, while on the officer’s camera, she withdrew the agreed upon cash and handed it to Hinton.

Despite this agreement, Hinton retained counsel who filed a civil complaint against Acosta on May 13, 2024. The lawsuit claimed that Hinton suffered serious injuries to his brain, neck, back, and knee due to the accident. Acosta’s attorney filed an answer, denied liability and included the affirmative defense of accord and satisfaction and release based upon the oral agreement between the parties as a complete defense to the lawsuit.

Defendant Acosta thereafter filed a motion for summary judgment, asking the court to enforce the oral settlement made at the scene of the accident. She used certifications from the officer and witnesses, deposition testimony from the officer, as well as his body camera video footage to support her motion.

The trial court judge granted the motion, dismissing the lawsuit. He found that the body worn camera footage and the officer’s testimony supported that the plaintiff was lucid, aware of the implications of his conduct, controlled the negotiations, and that there was clear evidence of an offer and acceptance.

This appeal ensued. Plaintiff argued that there was no meeting of the minds, that a hearing should have been held concerning its viability as a contract and plaintiff’s waiver of his personal injury claims were unenforceable because the settlement agreement occurred within 30 days of the accident in violation of N.J.S.A. 17:29B-15.

The Appellate Division noted that settlement agreements “are encouraged as a matter of public policy because they promote the amicable resolutions of disputes and lighten the increasing load of litigation faced by … courts.” These types of agreements are governed by principles of contract law. They are freely enforceable unless there is fraud or other compelling circumstances that should bar their enforcement.

To be valid, a settlement requires an offer and acceptance. And, the terms of the agreement “must be sufficiently definite [so] that the performance to be rendered by each party can be ascertained by each party with reasonable certainty.” The Court further noted that once the parties agree on essential terms and show an intent to be bound by those terms, then they have created an enforceable contract.

Here, plaintiff argued that he never accepted defendant’s offer to settle and that he did not have the requisite capacity to enter into an agreement. He also argued that the body worn camera footage was ambiguous.

The Appellate Division disagreed with plaintiff’s position. The Court found that the officer’s body worn camera footage showed that the parties voluntarily entered into a settlement agreement. That footage showed that a valid agreement was reached. Further, the footage showed that the plaintiff was not pressured into this settlement. To the contrary, it showed that Hinton repeatedly stated that “he just wanted his money” and “wanted to go home.”

The Court also rejected the argument that N.J.S.A. 17:29B-15 applied to these circumstances. Under this statute, no insurance release or waiver of rights by a claimant to compensation for personal injury or wrongful death, arising from an accident, executed within 30 days is enforceable without a written disclosure informing the claimant that he may seek legal representation.

The Appellate Division found that this statute only applied to a waiver or release with an insurance company and that it did not apply to private party settlements – which is what happened in this case. Hence, the Court found this statute to be inapplicable.

Thus, the Appellate Division upheld the trial court’s decision to dismiss this lawsuit based on the oral agreement reached between Hinton and Acosta at the scene of the accident.

A Plaintiff’s Complaints of Pain Without an Objectively Permanent Injury Fails to Meet the Verbal Threshold

In January, 2019, Plaintiff Martchela Popova-Mladenov was injured in a motor vehicle accident when Defendant Jason Coigne swerved into her lane on I-295 in Mount Laurel, causing her to hit him. She complained of neck pain, but she chose not to go to the ER. A month later, complaining of lower back pain, a doctor took an X-ray, which showed “mild degenerative disc disease.” She had a lumbar MRI a few months later, which showed a pre-existing, degenerative condition to her lower back. In 2021, Popova-Mladenov filed a lawsuit against Coigne, alleging she sustained permanent injuries to her lower back. The issue in Popova-Mladenov v. Coigne, 2026 N.J. Super. Unpub. LEXIS 258 (App. Div. Feb. 12, 2026) was whether Popova-Mladenov met the “verbal threshold” and could prove she had sustained a permanent injury through objective clinical evidence, rather than only exhibiting subjective complaints of pain.

New Jersey’s Automobile Insurance Cost Reduction Act (AICRA) allows drivers seeking New Jersey automobile insurance to choose between one of two tort options: “limitation on lawsuit” and “no limitation on lawsuit.” Those who choose the “limitation on lawsuit” option, otherwise known as the “verbal threshold,” can only succeed in a lawsuit for non-economic “pain and suffering”-type damages if their injuries meet the “verbal threshold.” They can do so by proving they have one of several listed injuries, including, among others, a “permanent injury within a reasonable degree of medical certainty.” They also must prove their permanent injury through accepted diagnostic tests, and not entirely upon their subjective responses or complaints of pain.

Prior to trial, both parties obtained experts to offer opinions on Plaintiff’s claims of injuries to her lower back. Plaintiff’s expert, Dr. Joshua Landa, arrived at the conclusion that the accident caused damage to Popova-Mladenov’s lumbar spine, including a permanent aggravation of pre-existing degenerative changes. Defendant Coigne’s expert, Dr. Seven Carl Hausmann concluded that the objective clinical evidence from the MRIs of her lumbar spine showed her condition was “consistent with degenerative spondylosis, which is age-related” and was not due to, and pre-dated, the accident. Plaintiff produced a second report from Dr. Landa to rebut Dr. Hausmann’s conclusions, confirming that the condition of her lower back pre-dated the accident, but that condition made them “susceptible to injury,” and the pain she experienced after the accident had not resolved and was “likely a permanent injury.” The emphasis on “likely,” included in the opinion, is important.

At trial, Dr. Landa testified on Popova-Mladenov’s behalf, stating that though the objective condition of Plaintiff’s spine pre-dated the accident, he confirmed that his opinion that she had a permanent injury was based on her continued, subjective complaints of pain. After Plaintiff had introduced all of her evidence, Coigne asked the court to dismiss Plaintiff’s complaint. He argued that Plaintiff failed to meet the verbal threshold because Dr. Landa could not prove she had a permanent injury based on objective medical evidence, only Plaintiff’s ongoing, subjective pain. The trial court agreed and dismissed Plaintiff’s complaint, and she appealed.

In reviewing the trial court’s opinion, the Appellate Division focused on Dr. Landa’s opinion that Plaintiff “likely” had a permanent injury, and that, after he admitted the MRI established the condition of her lumber spine was degenerative and pre-dated the accident (and could not show objective evidence of an injury caused by this accident), Dr. Landa based his conclusions as to Plaintiff’s permanency for the purposes of the verbal threshold on her complaints of pain alone. The Appellate Division referred to New Jersey Supreme Court precedent, which stated that subjective complaints of pain, “standing alone, are insufficient to satisfy the verbal threshold,” and a plaintiff must present objective clinical evidence from diagnostic tests, like an MRI, establishing a permanent injury.

Here, the Appellate Division concluded that Dr. Landa could not identify anything in Plaintiff’s lumbar MRI that showed objective medical evidence of an injury caused by the accident. As a result, because his conclusion that she sustained a permanent injury to her lower back was based solely on Plaintiff’s own complaints of pain, and no objective diagnostic test, she could not meet the verbal threshold, and the trial court properly dismissed her complaint.

Court Bars Admission of Prior Conviction at Trial

At the federal court personal injury trial in Erodici v. Boardwalk Regency LLC, 2026 U.S. Dist. LEXIS 72542 (D.N.J. Apr. 2, 2026), one of the pre-trial issues raised was whether the prior criminal conviction of Plaintiff Marcus Erodici was admissible. Evidence of prior criminal convictions can be used to attack the credibility of a witness. The Plaintiff filed a pre-trial motion, called an in limine motion, to exclude evidence of Erodici’s prior criminal conviction for racketeering. Defendant Boardwalk Regency argued that it should be permitted as impeachment testimony.

The applicable court rule of evidence governing the admissibility of criminal convictions under both federal and New Jersey state rules of evidence is Rule 609. Pursuant to this rule of evidence, convictions may be used as evidence of truthfulness for impeachment purposes.

However, under the federal rules (Rule 609(b)), if more than 10 years has passed (as of the date of the trial) since the witness’s conviction or release from confinement, whichever is later, then “evidence of the conviction is admissible only if the court determines that its probative value outweighs its prejudicial effect, with the proponent of that evidence having the burden of proof.”

New Jersey has a similar rule of evidence, in determining admissibility under these circumstances, in which the court will consider:

  1. Whether there are intervening convictions for crimes or offenses and, if so, the number, the nature, and seriousness of those crimes or offenses;
  2. Whether the conviction involved a crime of dishonesty, lack of veracity or fraud;
  3. How remote the conviction is in time;
  4. The seriousness of the crime.

In Erodici, Plaintiff argued that evidence of his criminal conviction for racketeering should be precluded because he was released from incarceration 13 years ago and “the probative value of that conviction does not substantially outweigh its prejudicial effect.” Defendant argued that he was released from probation less than 10 years before the trial and, hence, the 10 year rule would not apply.

The Court found that the fact that Plaintiff was only released from probation within the 10 year period had no relevance to the application of this rule. The time period would run from when he was released from custody, not probation.

Under the federal case law, convictions more than 10 years old are presumptively excluded. Evidence of these types of convictions are admitted “very rarely and only in exceptional circumstances.”

Here, the Court found that the evidence of Plaintiff’s conviction must be excluded at trial. Defendant made no argument for why the probative value of his conviction would substantially outweigh the prejudicial effect. And, the District Court found that this was not one of the “exceptional circumstances” meriting the inclusion of such evidence. The Court noted that his racketeering conviction would have little probative value in this premises liability case.

Thus, the District Court granted Plaintiff’s motion to exclude evidence of his racketeering conviction at his personal injury trial.

Broken Glass on a School Playing Field Potentially a “Pollutant” for Insurance Claim

After discovering broken glass embedded in its grass athletic fields, Oak Knoll School made a claim to its insurer, Utica National, to pay for the clean up. In making its claim, Oak Knoll pointed to a specific pollution clean-up provision in its insurance policy in which Utica would pay expenses to extract “pollutants” from the insured’s land; “pollutants” was defined in the policy to include any solid irritant or contaminant, including waste. Utica denied the claim and Oak Knoll filed a declaratory judgment action in federal court asking the court to determine the issue. On Utica’s motion to dismiss arguing Oak Knoll failed to state any claim as to coverage, the question in Oak Knoll Sch. of the Holy Child. v. Utica Nat’l Ins. Grp., 2026 U.S. Dist. LEXIS 33875 (D.N.J. Feb. 19, 2026), was whether Oak Knoll’s policy’s language related to “pollutants,” included glass. 

The school’s position was that broken glass is a solid contaminant that made the field unsafe and unusable, arguing their claim fit squarely within the policy’s broad definition of “pollutants.” The insurer disagreed and took the position that broken glass is not a “pollutant” under New Jersey law and that pollution coverage in the policy applies only to traditional environmental hazards. 

After finding no New Jersey Supreme Court decision determined the issue of whether broken glass qualifies as a “pollutant,” the District Court had to predict how the state’s Supreme Court would rule. In doing so, they first reviewed New Jersey lower court decisions that rule solely on New Jersey law, then it looked at similar case law nationally, finally, they looked at how New Jersey and national case law handled analogous substances solid substances that materially alter land and limit its use (e.g., dirt, sediment, debris, scrap metal). Because the court found no New Jersey law or national law adjudicated whether glass was a pollutant under these circumstances, it relied on the third iteration of their analysis, analogous substances. In this analysis, the District Court found that most, but not all, of those cases involving similar solid substances held that those substances were considered “pollutants.” Due to the balance of the authorities tilting in favor of finding such solid substances to be pollutants, the District Court found this assessment supported coverage as their prediction as to how the New Jersey Supreme Court would rule. But they did not find this to be determinative.

The fourth and final stage of the District Court’s analysis focused on New Jersey’s general legal principles in determining how and whether insurance policies should provide coverage. Those principles required a broad, liberal reading of insurance policies to allow coverage and reliance on the plain, ordinary meaning of terms the policy left undefined, resorting to a dictionary if necessary, which the District Court did. The Court noted Merriam-Webster defined “contaminant” as “something that contaminates,” and then “contaminates” as “to make unfit for use by the introduction of unwholesome or undesirable elements.” As a result, the District Court determined that the broken glass was an “undesirable element” in the grass sports field where it was discovered and rendered the field “unfit for use.”  

However, the District Court’s role in ruling on Utica’s motion to dismiss was not to determine the final issue of whether coverage was appropriate, but only if Oak Knoll could move forward on their claim for coverage, the Court noted that this did not get Oak Knoll “over the finish line” on their pursuit of coverage for the remediation of the “polluted” field.

Coverage for Auto Accident Denied Because Driver Was Not Permissive User

This matter concerned a coverage dispute as to an automobile accident between plaintiff Carrie and Ka-Sandra Allen and defendant Christian Kirch.  While driving his sister-in-law’s vehicle, defendant Kirch rear ended the Allens’ vehicle.  The vehicle operated by Kirch had been insured by New Jersey Manufacturer’s Insurance Company (NJM).  The issue in Allen v. Kirch, 2026 N.J. Super. Unpub. LEXIS 578 (App. Div. Mar. 24, 2026) was whether NJM properly denied coverage for the automobile accident because Kirch lacked actual or implied permission to use his sister-in-law’s vehicle when the accident occurred.

On the day of the accident, the owner of the vehicle, Kaitlynn Doheny, drove to her then-estranged husband Sebastian Kirch’s home so their children could visit with him.  She parked in the street and, upon entering the house, she placed her keys, her phone, and her purse on the counter because that is where “everyone put their keys when they came in the house.”  Shortly after she arrived, she laid down with her son to take a nap.

Sebastian later woke her up and advised her that Christian, Sebastian’s brother who was living with him at the time, was involved in a collision while driving Kaitlynn’s car.  According to Christian, he was driving her car to buy some “stuff”, which apparently included diapers for the children, when he struck the rear of the Allens’ car, which was stopped at a yield sign.  The accident resulted in the Allens being injured.

Before taking her car, Christian stated that he called Kaitlynn but she did not answer her phone.  Christian, who was originally from Peru, explained that “in my country, if you borrow a car from a relative it won’t be an issue but since I didn’t know so I just took her car because I needed to buy some stuff.”

Kaitlynn testified in a deposition that she was “friendly” with Christian but not close and she never resided with him.  Further, Christian never drove her car previously.  She had previously driven Christian to work probably less than five times. 

After the Allens filed their personal injury lawsuit against Christian and Kaitlynn, NJM sent a letter declining coverage under Kaitlynn’s policy for Christian’s operation of Kaitlynn’s vehicle.  It cited to the exclusion for liability coverage which stated as follows:

We do not provide liability coverage for any insured:. . . using a vehicle without a reasonable belief that such insured is entitled to do so.  This Exclusion. . . does not apply to a family member using your covered auto which is owned by you.

The policy defined the term family member as “a person related to you by blood, marriage, civil union under New Jersey law or adoption who is a resident of your household.” 

Following this declination, St. Paul Protective Insurance Company (“St. Paul”), the insurer of the Allens’ vehicle, filed a declaratory judgment action against NJM, seeking a declaration that NJM was required to insure Christian in the negligence action and included the Allens, Christian, and Kaitlynn as interested party defendants.

After discovery was exchanged, both the Allens and St. Paul filed for summary judgment, arguing that Christian was a permissive user under Kaitlynn’s insurance policy and, therefore, NJM was required to defend and insure him.  NJM cross-moved for summary judgment.  It argued that it was not required to defend Christian or cover any loss resulting from his driving, relying upon the policy’s permissive use exclusion.

After hearing the arguments of counsel, the trial court denied the Allens and St. Paul’s motions and granted NJM summary judgment.  It found that NJM was not required to defend or insure for the damages resulting from the accident because Christian was not a covered user of Kaitlynn’s vehicle and “Christian had no reasonable belief Kaitlynn permitted his use of her car” on the date of the accident.

Further, the court found the “initial permission rule” inapplicable because there was no evidence that Kaitlynn had ever in the past granted Christian authorization to drive her car or established a regular arrangement by which Christian could infer standing permission.  It explained that there was no evidence to suggest that Christian could have reasonably believed he had permission and rejected his claim that Christian’s prior experience in Peru would create that reasonable impression in these circumstances.  Further, Christian did not qualify as a covered family member because he resided at a different address and was Kaitlynn’s brother-in-law.

Following this decision, the Allens appealed the summary judgment in favor of NJM, arguing that they had demonstrated that Christian had implied permission to drive the vehicle, mandating coverage under Kaitlynn’s policy.  Or, at the minimum, they argued that there were material issues of fact existing regarding the reasonableness of his belief that he was permitted to borrow her vehicle, which should have resulted in the denial of the summary judgment motion.

The Appellate Division cited to the Supreme Court’s clarification of the statutory “use” clause which requires coverage for only permissive use of an automobile.  It quoted the Supreme Court language that “if a person is given permission to use a motor vehicle in the first instance, any subsequent use short of theft or the like while it remains in his possession, though not within the contemplation of the parties is a permissive use within the terms of a standard omnibus clause in an automobile liability insurance policy.” 

Thus, the threshold permissive use inquiry evaluates whether the initial use of the vehicle was with the “consent, express or implied, of the insured.”  Permissive use may arise from “a course of conduct or relationship between the parties in which there is mutual acquiescence or lack of objection signifying consent.”  It can also be shown by “a pattern of permitted use of the vehicle, which may give rise to an inference that the owner gave his consent to use on a subsequent occasion.”

In applying this law, the Appellate Division reviewed the record and agreed with the trial court that any damage caused by Christian’s use of the vehicle was not covered under Kaitlynn’s policy.  After reviewing the record, the Court noted that there was no suggestion of Christian’s prior use of Kaitlynn’s vehicle, authorized or otherwise.  The evidence showed only that she drove him to work less than five times.  Thus, the Appellate Division found that “any argument Christian drove the vehicle subsequent to some prior expressed authorization or in continuation of initially authorized use belies the record and fails from the outset.”

Further, the Court considered the events of that day.  It concluded “no confluence of events on the day of the accident suggests Christian had implied permission to use the car.”  The Appellate Division noted the evidence that Christian took Kaitlynn’s keys from the counter without authorization.  There was no evidence that she consented or asked Christian to take her car. To the contrary, Christian admitted that he attempted to call her to ask permission to use her car, did not reach her, yet he took the car anyway.  Thus, the Court was satisfied that no jury could find these actions constituted implied permission.

Further, the Appellate Division rejected the Allens’ claim that Christian held a reasonable belief to drive the car, or, in the alternative, that he was a family member covered by the policy.  The term “family member” did not apply because Christian was not a “resident” of Kaitlynn’s household.  There was no evidence that their lives were interdependent or comingled in any significant manner.  Christian did not reside in the same household with Kaitlynn.  To the contrary, he resided with his brother, from whom Kaitlynn was separated and living apart on the day of the accident.  Therefore, the Appellate Division found that the “family member” exception did not apply.

Additionally, the Court rejected the reasonable belief argument.  It found that the record did not support a viable claim that Christian possessed the “reasonable belief” that he was free to take and operate Kaitlynn’s car that day.  The Appellate Division agreed with the trial court that Christian’s claim that in Peru, members of families freely use each other’s vehicles and that he was using the car to purchase diapers for her children, did not constitute a “reasonable belief” that he had permission to use Kaitlynn’s car.  Thus, the Court found that NJM “fairly denied coverage” for damages resulting from Christian’s driving and that summary judgment was properly entered in favor of NJM.  Hence, the Appellate Division affirmed the trial court’s decision, granting summary judgment to NJM. 

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