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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.

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.

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. 

Appellate Division Upholds Shorter Statute of Limitations in Insurance Policy for UIM Claim

On January 10, 2018, plaintiff Amy Vanrell was driving a motor vehicle covered by an insurance policy with USAA and was in an accident.  She sued the other driver for her injuries but failed to make a claim against her insurance company, USAA, for underinsured motorist coverage until May 2, 2022.  The issue in Vanrell v. United Services Auto Assn., 2025 N.J. Super Unpub. LEXIS 1479 (App. Div. Aug. 6, 2025) was whether plaintiff failed to timely file an underinsured motorist claim under the terms of her insurance policy.

The other driver (the tortfeasor) involved in the accident had limited liability coverage of $50,000 per person/$100,000 per accident.  Plaintiff’s insurance policy with USAA provided underinsured motorist coverage (“UIM”) for bodily injuries of up to $300,000 per person/$500,000 per accident.

The day after the accident, on January 11, 2018, plaintiff notified USAA of her claim for property damages and personal injury protection benefits.  While she filed suit against the other driver on December 23, 2019 for her injuries, she failed to notify USAA of her suit at the time it was filed.

The first communication she had with USAA concerning an underinsured motorist claim was on May 2, 2022, when she sent USAA a letter seeking permission to settle her claims against the other driver for $43,000 (a “Longworth” letter).  In that letter, she identified the tortfeasor (the other driver) as an underinsured motorist and provided the name and docket number of plaintiff’s suit against the tortfeasor.

In her Longworth letter, she requested permission to settle her claims against the tortfeasor and asked whether USAA wished to waive subrogation of its claims against the tortfeasor.  USAA responded on May 4, 2022, approving the request to settle and waiving a potential subrogation claim but did not guarantee that the UIM coverage had been triggered by that loss.

On the day after, plaintiff’s counsel wrote to USAA demanding its $300,000 policy “to amicably resolve this matter.”  Thereafter, there were a number of correspondences back and forth in which USAA was asking for medical records to evaluate plaintiff’s settlement demand.  On February 24, 2023, USAA did offer to settle plaintiff’s UIM claim for $85,000.  However, plaintiff rejected that demand.  Eventually, USAA increased its offer to $100,000 to settle.

On May 17, 2023, plaintiff filed a lawsuit against USAA seeking UIM coverage.  USAA filed an Answer, which asserted as an affirmative defense that the complaint was barred by the statute of limitations and plaintiff failed to comply with the terms of the policy.  Discovery was thereafter exchanged.  Before the close of discovery, USAA moved to dismiss the complaint as untimely under the terms of the policy.  It argued that the policy required plaintiff to file her UIM claim within four years after the accident or one year of when she was aware or should have been aware of her UIM claim, whichever was later. 

Plaintiff opposed this motion, arguing that the six-year statute of limitations for breach of contract claims applied.

The trial court found that plaintiff did not timely file the complaint but did not specify which of the policy limitation periods applied, either the four year or one year, in reaching its decision.  It also did not address plaintiff’s conformity-to-law and equitable estoppel arguments.

This appeal ensued.  The plaintiff made the arguments that the six-year statute of limitations applied, that USAA was equitably estopped from raising the timeliness of plaintiff’s complaint, that it waived its timeliness argument by not raising it in its Answer and that the four year period in the policy, if applicable, was tolled until USAA denied UIM coverage.

The Appellate Division noted that the primary issue before the court was which of the two limitations period applied to plaintiff’s UIM claim – the six-year statute of limitations that applies to contract claims or the four-year statute of limitations in the policy.

The Court noted that New Jersey law holds that the six-year statute of limitations would ordinarily apply to insurance actions.  However, under New Jersey case law, the courts have found that period may be shortened by the terms of an insurance contract. 

The Appellate Division found that the USAA policy contained an unequivocal provision shortening the time period in which plaintiff must file her UIM claims to four years from the date of accident or one year from the date she was aware or should have been aware that she had a UIM claim, whichever was later.

It found that four years from the date of the January 10, 2018 accident would have been January 10, 2022.  While plaintiff did not identify the date on which she became aware or should have become aware that she had a UIM claim, she presumably became aware of the extent of her injuries and the limits of the tortfeasor’s insurance coverage while her lawsuit against the tortfeasor was pending in the Law Division.  At the very latest, she was aware of her UIM claim on May 2, 2022, when she requested USAA’s consent to settle her claims against a tortfeasor for less than what plaintiff alleged her damages from the accident.

Plaintiff did not file a lawsuit against USAA for the UIM claim until May 17, 2023, which was more than a year and four months after the January 10, 2022 date and fifteen days after May 2, 2023.  Therefore, the Appellate Division found that under either prong of the contractual limitations, (either the four-year period or the one-year period), plaintiff’s complaint was untimely.

The Court found that legal precedent has permitted parties to an insurance contract to agree to a shorter limitations period than is provided by the statute.  Further, the Court’s review of the record did not reveal any basis on which to apply equitable estoppel to bar USAA from raising the timeliness of plaintiff’s complaint. 

The Appellate Division also rejected Plaintiff’s other arguments.  Hence, the Court affirmed the trial court’s decision, barring the plaintiff’s uninsured motorist claim due to the failure to comply with the policy’s statute of limitations. 

Plaintiff Unable to Collect Judgment Over Insurance Coverage Amount for Bankrupt Defendant

Plaintiff Keith Hacker was in a motor vehicle accident with defendant Carlos Jaime-Valdez on January 27, 2018.  Defendant Jaime-Valdez had $100,000 of insurance coverage each with both State Farm and Geico.  After answering the complaint, Jaime-Valdez filed for bankruptcy. The issue in Hacker v. Jaime-Valdez, 2025 N.J. Super. LEXIS 44 (App. Div. June 13, 2025) was whether the plaintiff could collect on a judgment against the bankrupt defendant in excess of the amount of available insurance coverage.

Plaintiff Hacker filed a lawsuit against Michele Donato, the owner of the vehicle, and Jaime-Valdez, who was operating the vehicle that collided with his vehicle.  Jaime-Valdez answered the complaint and participated in discovery until he filed a bankruptcy petition under Chapter 7.  This lawsuit was listed in his schedule and plaintiff was listed as a creditor.  The bankruptcy was filed on May 14, 2021.

On July 7, 2021, defendant filed a motion with the trial court for an order staying plaintiff’s lawsuit.  His defense counsel represented that defendant had recently filed for bankruptcy and, hence, sought a stay of this Law Division matter pending the outcome of the bankruptcy proceeding.

Plaintiff opposed that motion and represented to the trial court that he would be immediately filing a motion to lift the automatic stay.  Plaintiff’s counsel provided a certification that State Farm and Geico each had $100,000 in liability coverage and excess liability coverage respectively, regarding this accident.  Plaintiff’s counsel opposed the stay motion because he represented that plaintiff was seeking $200,000 to resolve this claim and nothing above the liability and excess coverage afforded to defendant.  Therefore, he argued that the resolution of this civil matter would not involve the property of the bankruptcy case.

After opposing the motion, plaintiff did move in the bankruptcy court for relief from the automatic stay.  He sought an order modifying the automatic stay, expressly to permit him to pursue the defendant’s $200,000 in insurance coverage.

The bankruptcy court conducted a hearing and granted relief from the automatic stay and permitted him to pursue his prosecution of the Law Division action to the limits of the defendant’s available liability insurance coverage.  The plaintiff’s counsel submitted that order to the Law Division judge and, hence, the trial court subsequently denied the defendant’s motion for a stay of this civil claim.

The case thereafter proceeded to trial and, on January 19, 2023, the jury awarded $1.6 million dollars to plaintiff. Previously, the plaintiff had represented to both the bankruptcy court and the Law Division judge that he was only seeking to pursue the limits of defendant’s insurance coverage.  However, he now advised the defendant that he would hold defendant directly responsible for the excess verdict and also seek a bad faith claim against defendant’s respective insurance carriers.

The defendant then moved to mold the verdict to the $200,000 coverage limit, or, in the alternative, he moved for a remittitur or a new trial.  He relied upon the bankruptcy court’s order for the motion to mold the verdict to the coverage limit.  The trial court denied that motion, ruling that the defendant needed to seek relief from the bankruptcy court.  The trial court issued an order, awarding plaintiff $1.6 million plus pre-judgment  interest and counsel fees based upon defendant’s non-acceptance of plaintiff’s offer of judgment. 

However, the trial court stayed the judgment to give defendant an opportunity to apply to the bankruptcy court.  Defendant then moved in the bankruptcy court to reopen the discharged Chapter 7 case and for an order that the judgment obtained by plaintiff was not enforceable beyond the $200,000 policy limits of his automobile insurance.  The bankruptcy court did grant defendant’s motion and found that the concept of judicial estoppel applied.

Under the doctrine of judicial estoppel, a party would be precluded from assuming an inconsistent position with one court after he’s been successful with it in another.  Following the entry of the bankruptcy court’s orders, defendant again moved in the Law Division for an order molding the judgment to $200,000.  While acknowledging the bankruptcy court’s order, the trial court nevertheless denied defendant’s motion.  This appeal ensued. 

The Appellate Division did find that judicial estoppel applied.  It noted that under this doctrine, “if a court has based a final decision, even in part, on a party’s assertion, that same party is thereafter precluded from asserting a contrary position.”  Here, the Court noted that the plaintiff had made representations in his opposition to defendant’s Law Division stay motion and in his motion in the bankruptcy court for relief from the automatic stay that he was pursuing only $200,000, which were the funds provided by defendant’s insurance coverage.  The bankruptcy court granted plaintiff’s motion based upon this representation to lift the automatic stay.

The Court further found that Plaintiff thereafter submitted this order to the Law Division in support of his opposition to defendant’s stay of the Law Division action.  Based upon those orders, plaintiff was able to proceed to trial.  It was only after the jury had rendered its verdict that plaintiff changed his position and was now asserting that he was pursuing not only the insurance proceeds but the full amount of the verdict.

The Appellate Division found that “having represented to both courts, he was pursuing a judgment limited to the amount of the insurance coverage and having received relief based on that representation, plaintiff was judicially estopped from changing his position.”  Thus, the Court concluded that the trial court made a mistake in denying defendant’s motion to mold the verdict to the $200,000 coverage limit.  It reversed the trial court decision and remanded the case back for an entry of an order, molding the verdict to the $200,000 insurance coverage limit.

Plaintiff’s Bodily Injury Claim Dismissed Due to Her Failure to Provide a Comparative Analysis With Her Pre-Existing Condition

Plaintiff Debbie Williams-Siraj claims to have been injured in an automobile accident on September 28, 2017, when the vehicle driven by defendant Lynne Schwartz collided with her.  Although plaintiff claimed to have suffered significant injuries to her lower back including spinal disc herniations and fractures, she had been previously diagnosed with chronic and progressive lumbar disc disorder with radiculopathy.  The issue in Williams-Siraj v. Schwartz, 2025 N.J. Super. Unpub. LEXIS 427 (App. Div. Mar. 19, 2025) was whether plaintiff’s bodily injury claim was subject to dismissal due to her failure to provide an expert report which included a comparative analysis of the plaintiff’s residuals prior to the accident with the injuries suffered in the automobile accident at issue.

Plaintiff alleged that she was injured when the defendant Schwartz operated her car in a reckless and negligent manner in changing lanes into the path of plaintiff’s vehicle, purportedly causing plaintiff to swerve onto the curb.  Although the cars never actually collided, plaintiff claimed that the incident caused significant injuries to her lower back including spinal disc herniations and fractures. 

However, two days before this incident, plaintiff’s pain management doctor told her that she was a likely candidate for spinal surgery because of her chronic and progressive lumbar disc disorder with radiculopathy. 

About one month after the automobile accident, plaintiff for the first time sought treatment at a hospital emergency room.  According to the records, plaintiff’s knee gave out, causing her to fall.  However, plaintiff reported a history of a herniated disc and lower back pain.  Although she was not admitted to the hospital, a few days later, she was admitted because her back condition had worsened.  Two days after that, she underwent a lumbar fusion surgery.

Almost two years later, plaintiff filed a lawsuit against the defendant, claiming that the accident aggravated her existing condition in her back.  Her automobile policy limited the coverage for which she could recover because she had elected the “verbal threshold” limitation.  Discovery ensued and, prior to the end of discovery, plaintiff still had not retained any expert witnesses nor served any expert reports to substantiate her injury. 

The defendant filed for summary judgment, arguing that plaintiff’s complaint should be dismissed because she alleged an aggravation of her pre-existing injury but had not provided expert testimony to compare plaintiff’s condition before the accident to the injuries suffered as a result of the accident.  Thus, the defendant asserted that she had not established that the accident caused an aggravation of her pre-existing condition.

In opposition, plaintiff now submitted two expert reports. Although she did not move to reopen discovery to permit the proper consideration of these reports, the trial court nevertheless considered the substance of each report.

In the first expert report, the doctor concluded that plaintiff had “significant pathology” in her lower back and suffered a “new neurologic injury with motor and sensory deficit[s]” that were “causally related to her motor vehicle accident.”  In the second expert report, that doctor noted that before the accident, plaintiff “had chronic back pain that was controlled with medications, [and] after the car accident she had  significant injuries that made her disabled [and required her to walk] with a walker . . .”  This expert also opined that her injuries were permanent and caused significant change in her life.

Nevertheless, the trial court granted summary judgment to defendant and concluded that plaintiff was obligated under the law to provide a Polk analysis of the medical records.  To satisfy the verbal threshold requirement, Polk (case of Polk v. Daconceicao) necessitates that a comparative analysis showing aggravation of the pre-existing injury must be provided by an expert.  Because plaintiff failed to do so, summary judgment was granted on behalf of the defendant.  This appeal ensued.

The Appellate Division noted that plaintiff had elected the verbal threshold option in her insurance policy.  Once that option is elected, the New Jersey law is triggered which provides that plaintiff may only recover for her pain and suffering if she suffers “a permanent injury with a reasonable degree of medical probability, other than scarring or disfigurement.”  Further, the statute finds an injury is 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.”  Plaintiff must also establish permanency with “objective clinical evidence.”

Because plaintiff was claiming an aggravation of a pre-existing condition, the Appellate Division noted that a diagnosis of aggravation of a pre-existing injury or condition “must be based upon a comparative analysis of the plaintiff’s residuals prior to the accident with the injuries suffered in the automobile accident at issue.”  This analysis “must encompass an evaluation of the medical records of the patient prior to the trauma with the objective medical evidence existent post-trauma.”  Further, the Court noted that without this comparative analysis, “the conclusion that the pre-accident condition has been aggravated must be deemed insufficient to overcome the threshold of N.J.S.A. 39:6(a)-8 (the verbal threshold).

The Appellate Division concluded that the trial court did correctly determine that plaintiff was required to provide this comparative analysis, i.e., a Polk analysis to defeat summary judgment.  She claimed that a pre-existing condition was aggravated by her injuries she purportedly suffered in this accident.  However, she did have a substantial prior history of issues concerning issues to her back which was so significant that two days before this accident, her doctor recommended that she have surgery to address it.  According to her MRI reports, plaintiff’s lower back was already compromised as early as 2013.  She did not seek any initial emergency treatment.  The only time she sought treatment following the accident was when she fell down one month later.

Additionally, the Appellate Division noted that plaintiff had failed to produce any expert reports before the close of discovery.  The court noted that the trial court’s inquiry could have ended there and arguably should have.

Nevertheless, the Court also considered those expert reports that were submitted outside of discovery.  In reviewing them, however, the Appellate Division agreed with the trial court that these reports did not meet the required Polk standard.  Specifically, one of the experts failed to do any kind of comparative analysis and the other expert only made vaguely conclusory statements about the ultimate impact of the purported injuries.

Thus, the Court agreed that the plaintiff was unable to establish that defendant proximally caused the permanent injuries for which she sought recovery.  Therefore, the Appellate Division did affirm the trial court’s decision to grant summary judgment and dismiss the lawsuit.

Appellate Division Upholds Summary Judgment Dismissal of Suit for Plaintiff’s Failure to Maintain New Jersey Automobile Insurance

Plaintiff Ramon Hernandez claimed to have suffered injuries when his car was struck in the rear on a New Jersey road by a car being driven by defendant Hannah Kurtz and owned by co-defendant Eric Kurtz. In Hernandez v. Kurtz, 2024 N.J. Super. Unpub. LEXIS 3049 (App. Div. Dec. 17, 2024), the issue was whether plaintiff Hernandez’s failure to obtain a New Jersey automobile insurance policy at the time of the accident barred him from recovering damages for his injuries. The trial court judge relied upon a New Jersey statute which disallowed a monetary recovery when a plaintiff lacked the required New Jersey auto insurance coverage.

In this case, the plaintiff was driving his car when he met with an accident with defendants’ vehicle in New Jersey.  However, at the time of the accident, plaintiff had a driver’s license issued by the state of Maryland, and his vehicle was insured and registered in Maryland. Plaintiff sued defendants for damages from injuries he suffered as a result of the accident. Thereafter, defendants filed for a summary judgment dismissal of the lawsuit on the ground that his claim was barred because his car was considered “principally garaged” in New Jersey at the time of the accident, yet it was not insured under a New Jersey auto policy.

The Court reflected upon the applicable statutes, noting that N.J.S.A. 39:6B-1(a) mandated that every owner or registered owner of a motor vehicle, “registered or principally garaged in this State shall maintain . . . motor vehicle liability insurance coverage.” The coverage must include, a $15,000 minimum level of coverage for PIP benefits. The Court observed that, the applicable statutes did not define “principally garaged,” but case law suggested that term signified the physical location where the vehicle was primarily kept most of the time.

Defendants claimed that plaintiff’s claim was barred under N.J.S.A. 36:6A-4.5(a), which provided that an individual who failed to maintain Personal Injury Protection (PIP) coverage at the time of the accident was barred from recovering economic or non-economic losses for injuries suffered in the accident

Further, the Court noted that although the insurance statute did not provide a time interval for when a vehicle would be deemed to be principally garaged in New Jersey, the state’s motor vehicle statutes required owners of motor vehicles to get the vehicle registered in 60 days after re-locating to New Jersey. The Court clarified that the 60-day grace period was triggered not when the vehicle was principally garaged in the state, but rather, when the vehicle owner becomes a resident of the state.

Following the analysis of the applicable law, the Appellate Division observed that, in support of the motion for summary judgment, defendants relied upon plaintiff’s deposition testimony which revealed that he had moved to Maryland in 2007-2008, lived there for a few years and then moved back to NJ in 2021. It was his testimony that, at the time of his deposition, he had been living in New Jersey for about two and a half years. However, at the time of the accident, he had been living in New Jersey for about three months and had owned the subject vehicle for either two or three years. It was undisputed that, as of the time of the accident, plaintiff had not registered his car in New Jersey, nor had he procured a New Jersey auto insurance policy.

Plaintiff’s Maryland policy provided him with basic PIP coverage, mandated under Maryland law, which was only $2,500. It was undisputed that this coverage was below the $15,000 minimum PIP coverage required under New Jersey law. Thus, this policy did not comply with the requirements of a New Jersey auto insurance policy.

The Court noted that the motion judge correctly focused on the sixty-day grace period for car registration, and plaintiff’s acknowledgment that at the time of the accident he had been living in New Jersey for a longer period of “about three months, more or less.” The Appellate Division stated that the “principally garaged” provision denoted that the car owner should act promptly within a reasonable time to acquire the mandatory minimum insurance coverages and that, in this case, plaintiff failed to do so. Further, the Court noted that plaintiff presented no evidence to show that he had been living in New Jersey for less than three months before the accident and that his vehicle was garaged elsewhere.

Therefore, the Appellate Division upheld the decision of the trial court, ruling that plaintiff lacked the required New Jersey auto coverage at the time of the accident and, hence, was prohibited from recovering personal injury damages from defendants. Thus, the Court affirmed the summary judgment dismissal in favor of defendants.

Plaintiff Found to Be Eligible for PIP Benefits for Burns Suffered From Hot Tea Spilled on Her at Dunkin’ Donuts Drive-Through

Plaintiff, Shani Harrell, made a claim against her automobile insurance company, Progressive Garden State Insurance Company (“Progressive”), for personal injury protection (PIP) benefits when she suffered severe burns to her body after a restaurant employee spilled a hot beverage on her at a Dunkin’ Donuts drive-through.  She applied to Progressive for PIP benefits under her policy, which Progressive denied.  The issue in Harrell v. Mody Management, LLC d/b/a Dunkin’ Grand Group, Inc., 2024 N.J. Super. Unpub. LEXIS 2579 (App. Div. Oct. 23, 2024) was whether plaintiff was entitled to PIP benefits for her injuries.  (PIP benefits can include payment of medical bills, wage loss, and essential service benefits.)

At the trial court level, Progressive filed for summary judgment on the coverage issue.  The trial court granted summary judgment for Progressive, ruling that plaintiff was not operating her vehicle at the time she was injured and that there was no causal relationship between her use of the vehicle and her injuries. Hence, the judge found there was no coverage under her policy for PIP benefits.

This decision was appealed to the Appellate Division, which reversed. 

The Appellate Division noted that the facts showed that plaintiff was stopped in the drive-through while purchasing hot tea.  When the tea was passed to her through her window, the beverage cup and its top became dislodged, and the contents spilled into the driver’s compartment of the car onto plaintiff.  The hot tea flowed under her lap between her legs and onto the seat beneath her, burning her. 

She subsequently filed a claim for PIP benefits pursuant to her auto insurance policy.  According to her policy, PIP benefits would be paid “because of bodily injury caused by an accident and sustained by an injured person while occupying, entering into, alighting from, getting on, getting off of, loading, unloading, or using an automobile . . .”  Progressive had argued that there was no connection between the injuries claimed and her automobile.  Further, it argued that her injuries were not caused by the result of occupying, entering into, alighting from or using an automobile.

The trial court had agreed that there was no nexus between the use of the automobile and her injuries.  The Appellate Division, however, disagreed with that analysis.  It noted that the question required the court to consider whether a substantial nexus existed between the accident plaintiff suffered and the use of her car.

The Court noted that she was injured when hot tea was spilled and burned her as it was passed into her car.  She was obviously occupying her vehicle and sitting in the driver’s seat at the time she was injured.  She was clearly using her vehicle “to acquire her hot beverage from a business that expressly offers customers the option to pick up their food and drinks while remaining in their cars.”

Thus, the Court found that there was a substantial nexus between the burn incident and her vehicle use.  Therefore, the Appellate Division concluded that plaintiff was covered under her insurance policy’s PIP terms.  It reversed the order granting defendant summary judgment and remanded the matter back to the trial court.

Appellate Division Finds Coverage Under Loading and Unloading Doctrine for Donut Shop Sued in Serving Customer Hot Tea Through Drive Through Window

By: Victoria M. Adeleke, Law Clerk
Edited by: Betsy G. Ramos, Esq.

Plaintiffs Bridgewater Donuts, LLC and Tamar, Inc. filed a lawsuit against defendant Geico Indemnity Co. seeking coverage under an automobile liability policy issued to Susan Mendelsohn-Hall. Mendelsohn-Hall alleged she suffered injuries when hot tea spilled on her at the Dunkin’ Donuts drive-through, leading to a lawsuit against Plaintiffs. Plaintiffs then sought coverage under Mendelsohn-Hall’s auto policy issued by Geico, invoking the “loading and unloading” doctrine. However, Geico denied coverage, prompting this legal dispute. The issue in Bridgewater Donuts, LLC v. Geico Indemnity Co., 2024 N.J. Super. Unpub. LEXIS 1505 (App. Div.  July 9, 2024) was whether Plaintiffs qualified as additional insured under Mendelsohn-Hall’s auto policy under the loading and unloading doctrine.

Mendelsohn-Hall had a New Jersey Family Automobile Insurance policy that provided coverage for bodily injury sustained by a person arising out of the ownership, maintenance or use of the automobile. The policy defined the persons insured to include Mendelsohn-Hall and any other person using the auto with her permission.

On the day of the accident, Mendelsohn alleged she was scalded by hot tea as it was delivered to her at the drive thru window by plaintiffs’ employees and that her injuries were proximately caused by plaintiffs’ negligence.  

Plaintiffs filed a complaint against Defendant Geico, seeking a declaratory judgment that they were additional insureds under Mendelsohn-Hall’s policy. Defendant moved for summary judgment, arguing plaintiffs had not been using Mendelsohn-Hall’s vehicle when she sustained her injuries and, therefore, were not additionally insured as users of the automobile. The trial court granted Geico’s motion for summary judgment and dismissed Plaintiffs’ complaint. The trial court determined that Plaintiffs did not qualify as additional insureds under Mendelsohn-Hall’s auto policy because her injuries were not directly attributable to the loading of the tea by plaintiffs into her vehicle.

The Appellate Division reversed. The appellate court first explained that N.J.S.A. 39:6A-3 requires that automobile owners have auto insurance that covers loss arising out of the ownership, maintenance, operation and use of an automobile. The Court then explained that unloading and loading had always been a verified use of the vehicle under the statute, and implicit in this requirement is the obligation to provide omnibus liability coverage to all persons who use the named insured vehicle by participating in its loading or unloading.

The Appellate Division relied on the N.J. Supreme Court case of Penn Nat’l Ins. Co. v. Costa, where the Court found that to determine whether an injury arises out of the use of a motor vehicle thereby triggering coverage, that there must be a substantial nexus between the injury suffered and the asserted negligent use of the motor vehicle. Use of a motor vehicle has been interpreted broadly to include the acts of loading and unloading the automobile.

The Appellate Division found that in Bridgewater Donuts, LLC, the record supported a finding of the requisite substantial nexus. The Appellate Division pointed to the undisputed fact that plaintiffs’ drive-up window was available to customers to purchase and pick up their items and load the items into their car. Plaintiffs’ employee loading the hot tea she had purchased into her vehicle was integral to the completion of the transaction between Mendelsohn-Hall and plaintiffs. Therefore, the Court determined her injuries bore a substantial and not incidental nexus to Plaintiffs’ alleged negligent use during the loading process under her automobile policy.

Thus, the Court reversed the trial court’s order granting summary judgment to defendant Geico and denying Plaintiffs’ motion for summary judgment and remanded the case back to the trial court for further proceedings.

Insurance Carrier Not Estopped From Denying Coverage After Affording Defense of Its Insured From an Automobile Accident

This case involved an insurance coverage dispute from an automobile accident involving an employee of defendant Century Waste Services, LLC (“Century”).  The employee was driving a vehicle owned by a manager’s mother, which was a vehicle not covered under the insurance policy issued to Century by United Specialty Insurance Company (“USI”).  The trial court had ruled that USI was not required to indemnify Century for this accident.  In the case of United Specialty Insurance Co. v. Century Waste Services, LLC, 2023 N.J. Super. Unpub. LEXIS 2097 (App. Div. Nov. 20, 2023), the issue on appeal was whether USI was estopped from denying coverage because USI’s reservation of rights letter did not inform Century that it could accept or reject USI’s assigned counsel.

This accident happened when a manager employed by Century asked another employee to drive from Elizabeth, New Jersey to Bronx, New York to pick up a check from a Century customer.  The employee was given permission by the manager to drive a vehicle owned by the manager’s mother.  However, the employee was involved in a car accident on the way to pick up the check.

The passengers in the other vehicle sued Century, the Century employee who drove the borrowed vehicle, and the owner of the borrowed vehicle to recover damages for injuries they suffered in the car accident.  Thereafter, USI’s claim administrator sent a letter to Century advising it had retained counsel to defend Century in the underlying action.  The letter also advised Century that, if Century chose to retain its own attorney, it would be at its expense. 

GEICO was the borrowed vehicle’s insurer and assigned counsel to defendant both the vehicle’s owner and the Century employee driving the vehicle at the time of the accident.

USI wrote to Century offering to continue defend it in the underlying lawsuit, subject to a reservation of rights.  The letter stated as follows:

“If we do not hear from you to the contrary, we will assume that you consent to the retention of Meaghan Lipton, Esq., for this matter.” 

Century did not object to USI’s continued representation in the underlying action.

Thereafter, USI filed a lawsuit seeking a declaratory judgment that USI did not owe Century a defense or indemnity in the underlying lawsuit.  USI filed a motion for summary judgment in the declaratory judgment action.  Century filed a cross-motion for summary judgment, seeking to require USI to provide a defense and indemnify Century in the underlying lawsuit.  The trial court heard both motions and denied them both.

Thereafter, USI filed a second motion for summary judgment, seeking a declaratory judgment that it did not owe Century a defense or indemnity in the underlying suit.  Again, Century cross-moved for summary judgment and opposed USI’s motion.  This time, the trial court entered an order granting USI’s summary judgment motion and denying Century’s cross motion. 

In making its ruling, the trial court reasoned that there was never any coverage for Century on the underlying action under the USI policy in the first place and that Century cannot be allowed to create that coverage through estoppel.  The court made a determination that the letter from USI reserving its rights was not insufficient simply because it did not include “certain magic words.”   Further, the court determined that Century had suffered no prejudice. 

Century appealed this ruling and contended that USI should be estopped from denying coverage because the reservation of rights letter did not contain the required language “to inform Century it could accept or reject the offer of a defense,” and also because Century incurred prejudice as a result of USI’s control of the legal defense. 

The Appellate Division explained that estoppel is a doctrine applied at law and in equity for the purpose of precluding a party “from asserting rights which might perhaps have otherwise existed . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worst.”  The Court also noted that the “predominant view” is that a loss which is not within the coverage of a policy cannot be bought within such coverage by invoking the principles of waiver or estoppel.

In this matter, Century did not dispute that the borrowed vehicle did not qualify as a “covered auto” under the USI policy.  Its argument rested on the principle of estoppel, which in turn hinged on whether Century was properly informed of its right to choose either to consent to legal representation by the lawyer provided by USI or to retain its own attorney at its own expense. 

The Appellate Division noted the well-settled law that “without the insured’s consent or circumstances that suggest the insured acquiesced in the insurer’s control of the defense, an insurer will be estopped from later disclaiming coverage.”  Further, the Court noted that reservation of rights letters have been regarded as “proper defense mechanisms for insurance companies.” 

In this situation, the Court found that it was dealing with a variation of acquiescence by silence.  It noted that there are no magic words that need to constitute a valid reservation of rights.  In this case, the Appellate Division was satisfied that “if we do not hear from you” language in the reservation of rights letter adequately communicated that Century had the option to reject the use of the attorney by USI.  The Court inferred that Century elected not to exercise its option to retain its own counsel when it chose not to advise USI that it did not want its interest represented by the attorney retained by USI.  Thus, the Appellate Division concluded that Century had consented to allow the attorney retained by USI to control the defense of the underlying lawsuit.

Under these circumstances, the Appellate Division found that Century failed to provide a basis upon which to apply the estoppel doctrine.  Further, the Court found that Century had not suffered any prejudice.  It was unable to show how the case would have been handled differently had it chosen to retain a different attorney at its own expense.  Thus, the Appellate Division affirmed the trial court’s ruling that USI was not estopped from denying coverage because of the lack of specific language in its reservation of rights letter.

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