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Bicyclists Covered by Auto Insurance with Limited Tort Must Establish a Permanent Injury to Sue for Pain and Suffering

On June 5, 2022, Plaintiff James Basilone (Basilone) was riding a bicycle when he was struck by the car driven by Defendant Krzysztof Kopec and then struck by a second vehicle driven by Defendant Alexander Sanchez. Basilone sued both defendants for his personal injuries seeking non-economic damages (i.e. pain and suffering). At the time of the accident, Basilone was insured with a New Jersey automobile insurance policy in which he had chosen the Limitation on Lawsuit option (a/k/a “limited tort”). The issue in Basilone v. Kopec, 2026 N.J. Super. Unpub. LEXIS 616 (Mar. 26, 2026) was whether limited tort applied to a bicyclist.

Under New Jersey’s Automobile Insurance Cost Reduction Act (AICRA), all New Jersey drivers must choose between two tort options, full tort and limited tort, and must maintain personal injury protection (PIP) insurance. By selecting the limited tort option, an insured gives up his right to sue for pain and suffering damages caused by an automobile unless he can prove that he sustained one in a list of various injuries; one of which is “a permanent injury.” To prove he had a permanent injury, he must provide the defendant with a physician’s certification showing his injury was permanent by credible, objective medical evidence, such as an MRI. He has, at the latest, 120 days from the day the defendant answers his complaint to provide this certification. Further, the AICRA defines a “pedestrian” as any person who is not occupying, entering into, or alighting from a vehicle propelled by anything other than muscular power.

In the course of discovery, Basilone produced the certification of a physician. However, that certification did not state the accident caused a permanent injury nor did it include credible, medical evidence showing such an injury. Based on this certification, the Defendants filed motions for summary judgment, both arguing that Basilone did not establish he sustained a permanent injury from the accident and, as a result, could not meet AICRA’s limited tort threshold. Basilone’s response was, simply, the limited tort threshold did not apply to him at the time of the accident, because he was riding a bicycle. The trial court granted both motions; Basilone appealed.

Before the Appellate Division, Basilone’s argument expanded. Though conceding he chose the limited tort option, he claimed the inclusion of bicyclists in the AICRA “does not make sense” because bicyclists: do no participate in the auto insurance system; face a greater risk of serious injury than drivers and passengers of vehicles; are the more vulnerable party in a collision with a vehicle; and would be discouraged from bicycling and thereby frustrating New Jersey’s policy for eco-friendly transportation. However, the Court focused on the AICRA statute in a direct, step-by-step analysis. It looked at the statute’s definition of a pedestrian and determined there was no question that a cyclist was a pedestrian for insurance purposes, meaning he was subject to his selection of the limited tort threshold. It follows that, by choosing limited tort, Basilone had to show, by objective medical evidence in a physician’s certification, that he sustained a permanent injury. In agreement with the Trial Court, the Appellate Division found that the certification, which lacked any opinion that Basilone had sustained a permanent injury caused by the accident and had no reference to any objective medical evidence to support such an injury, did not “vault” the limited tort threshold to succeed in a lawsuit for pain and suffering. The Appellate Court affirmed the Trial Court’s dismissal of Basilone’s complaint.

One key takeaway is that a New Jersey auto policy follows a New Jersey insured in all circumstances when the tortfeasor is driving a vehicle and will follow them whether they are walking, running, skateboarding, or riding a bicycle rather than driving or a passenger in a car when the accident occurred. Also, a limited tort plaintiff must provide a sufficient physician’s certification within 120 days. If he does not, or if the certification lacks permanency or the required credible, objective medical evidence, the tortfeasor-defendant should be entitled to summary judgment as a matter of law.  

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.

Court Finds That Lawsuit Filed Against Insurance Company Was Timely Filed

Plaintiffs Marlene Romhen and Ibrahim Mirkhan filed a lawsuit against the defendant insurance company Franklin Mutual Insurance Inc. based upon a theft loss that occurred at their insured residence.  The claim was denied by Franklin Mutual by letter dated September 17, 2021.  According to the denial letter, the insured needed to file suit against them within twelve (12) months of the date of the letter.  The issue in Romhen v. Franklin Mutual Insurance, Inc., 2024 N.J. Super. Unpub. LEXIS 708 (App. Div. Apr. 25, 2024) was whether the lawsuit was timely filed because it was filed on the Monday after the one year time period expired the prior Saturday.

The theft occurred at the insured residence on March 30, 2021.  Plaintiffs reported the loss to Franklin Mutual on April 1, 2021.  The insurance policy contained a provision that any lawsuit filed against Franklin Mutual must be filed within twelve (12) months of the date of the denial letter.  The denial letter was issued on September 17, 2021.

However, the plaintiffs did not file their complaint against Franklin Mutual until Monday, September 19, 2022.  Franklin Mutual argued before the trial court that the complaint needed to be filed on or before Saturday, September 17, 2022 to meet the 12 month shortened suit requirement, and, therefore, the complaint was filed two days late.

The trial court accepted that argument and dismissed the complaint.  This appeal ensued.

The Appellate Division noted the well settled law that “because insurance policies are contracts of adhesion, if any ambiguity exists, the ambiguity must be construed so as to effect the ‘reasonable expectations of the insured.’”  Further, the Court noted that if the policy language supported two meanings, one that favored the insurer and the other one that favored the insured, the policy should be construed so as to sustain coverage in favor of the insured.

Under New Jersey court rules, in computing any period of time fixed by rule or court order, if the last day of the time period falls on a Saturday, Sunday, or legal holiday, the time period would not run until the end of the next day which is neither a Saturday, Sunday, nor legal holiday.  The trial court, however, found that this court rule did not apply because it was applying the terms of the insurance policy, which is a contract between the parties.  The Appellate Division agreed with that rationale. 

However, the Court noted that it was not disputed that the parties agree to an abbreviated deadline, commonly referred to as a “shortened suit clause,” which shortens the time period from the normal six (6) year statute of limitations that would generally apply to a breach of contract in a civil case.

But, the Appellate Division found that there was an ambiguity in the insurance contract.  It noted that if Franklin Mutual “wanted to ensure strict adherence to a one-year deadline with no exceptions or extensions for weekends, it could have said so explicitly in the endorsement it drafted.”  Further, when it sent out its denial of coverage letter, it could have specified the exact date when the deadline for filing a lawsuit would expire.  By specifying the exact date, that would have left no doubt as to its interpretation of the policy clause and would have provided clear notice of the last day in which a lawsuit could be filed.  However, the denial letter left it up for the policy holders to determine the one year deadline because the letter made no reference to the fact that, in this instance, the expiration of the one year time period fell on a Saturday.

The Appellate Division applied a liberal interpretation of the shortened suit clause in the insured’s favor, “coupled with the general preference to hear cases on their merits rather than dismiss them based on strict enforcement of procedure rules.”  Hence, the Court determined that the lawsuit challenging Franklin Mutual’s denial of coverage as to the lawsuit which was filed on Monday, September 19, 2022 was deemed timely under the shortened suit clause endorsement.  Thus, the Appellate Division reversed the trial court decision and remanded the case back to the trial court for further proceedings.

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