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UM Coverage: Apportionment of Fault

The Joint Tortfeasors Contribution Law provides for the right of contribution between “joint tortfeasors”—two or more persons who are “jointly or severally” liable for the same injury to a person. The law states that any one of the joint tortfeasors who pays a judgment to the injured party shall be entitled to recover contribution from the other joint tortfeasors “for the excess so paid over his pro rata share.” N.J.S.A. 2A:53A.

The allocation of damages among joint tortfeasors is determined by the Comparative Negligence Act. N.J.S.A. 2A:15-5. The act provides that the trier of fact shall determine “each party’s negligence” so that the total negligence of “all of the parties to the suit” (including the plaintiff and all of the defendants) shall be 100 percent.

Ordinarily, a plaintiff will recover only the percentage of damages allocated to each defendant; however, the plaintiff can recover the full amount of damages from any defendant who is found to be 60 percent or more at fault. If so, that defendant may seek “contribution” from the other joint tortfeasors “for the excess so paid over his pro rata share.”

In Krzykalski v. Tindall, 232 N.J. 525 (2018), the Supreme Court considered whether a jury should apportion fault between a named party defendant and a “known but unidentified defendant” (the fictitious person, John Doe). The plaintiff, Mark Krzykalski, was driving northbound on Route 130 in Florence Township when he slowed for an emergency vehicle. A vehicle driven by a “known but unidentified” driver (the fictitious John Doe) passed him on the right and crossed in front of him to make a left turn. Krzykalski stopped his car but was struck in the rear by a vehicle operated by David Tindall.

Krzykalski filed suit against Tindall and John Doe alleging that they were joint tortfeasors. Tindall’s insurance company filed an answer to the complaint; however, no one filed an answer for John Doe (a known but unidentified defendant).

The plaintiff filed a motion to prevent the jury from allocating negligence between Tindall and John Doe because an unidentified person who is not represented by counsel is not a “true party.” The trial court denied the motion and the jury allocated the negligence at 3 percent to Tindall and 97 percent to John Doe. The jury awarded damages of $107,890 and the court entered judgment against Tindall for $3,236, only 3 percent of the verdict.

The plaintiff appealed. He argued that the trial judge “erred in allowing the jury to apportion liability between defendant (Tindall) and the fictitiously named John Doe.” The Appellate Division affirmed. The court held that “a fictitious party” is a “party” under the Comparative Negligence Act. Accordingly, the jury should be permitted to allocate fault between a known and identified defendant (Tindall) and a known but unidentified defendant (John Doe).

The Supreme Court affirmed. The court noted that, although John Doe was pleaded as a “fictitious party,” both Kryzkalski and Tindall acknowledged that he was the driver of the other car. Thus, his existence was “known” even though his identity was “unknown.”

In addition, in his answer, Tindall demanded an allocation of fault. Thus, plaintiff had “fair and timely” notice that Tindall would assert that the accident was caused by John Doe. The Supreme Court concluded that “the jury properly apportioned fault between the named party defendant Tindall and the John Doe defendant.”

Commentary: The Supreme Court reviewed the law relating to fictitious parties. A plaintiff may sue a person or entity as “John Doe” if the plaintiff knows that a cause of action exists but does not know the identity of the defendant. The plaintiff must describe the defendant with appropriate information for identification and must amend the complaint to state the defendant’s true name prior to judgment. A final judgment cannot be entered against a fictitious person; however, the statute of limitations is suspended until the actual identity of the defendant is discovered.

The court noted that, in some cases, the identity of the defendant will never be known, such as a hit-and-run or phantom driver. In those cases, an injured party may make a claim for uninsured motorist coverage under a personal auto policy, a policy covering the host vehicle or, in some cases, a family policy.

In this case, the plaintiff filed a UM claim under his personal automobile insurance policy. His carrier offered to settle the UM claim for the policy limits but the plaintiff rejected the offer.

I do not know why the plaintiff rejected the offer of the UM carrier to settle for the policy limits. The Appellate Division was concerned that a plaintiff could secure a “windfall” by obtaining the full amount of damages under the liability policy of the identified defendant and, later, seek recovery from his UM carrier. Perhaps, this was the strategy of the plaintiff’s lawyer in Kryzkalski.

The Appellate Division noted that the allocation of fault by the jury “prevents plaintiff from strategically waiting to proceed against UM insurance, allocates fault based on actual negligence of the various drivers, and avoids double recovery by plaintiffs.”

I note that the Supreme Court has endorsed a procedure that permits a plaintiff to submit a Notice of Intervention to the UIM carrier. Once the UIM carrier has been placed on notice, the carrier will be bound by the jury verdict, whether it intervenes or not. Zirger v. General Accident, 144 N.J. 327 (1996). If the plaintiff had followed this procedure in this case, he would have recovered the full jury verdict, $3,236 from Tindall and the balance from the UM carrier (up to the UM policy limit).

Pedestrian Crossings

The New Jersey motor vehicle statutes provide two rules with respect to pedestrian crossings. First, if traffic is directed at an intersection by a police officer or traffic signal, then a pedestrian must cross the highway within a crosswalk. N.J.S.A. 39:4-33. On the other hand, if traffic is not controlled by a police officer or a traffic signal, then a pedestrian must cross the highway within a crosswalk or “in the absence of a crosswalk … at right angles to the roadway.” N.J.S.A. 39:4-34. Thus, in pedestrian crossing accidents in which there are no police officers or traffic signals, the “critical determinant” is the presence of a crosswalk.

In Rice v. Miller, 455 N.J. Super. 90 (App. Div. 2018), the court considered whether there was a crosswalk “sufficiently close and accessible” to the spot where the plaintiff attempted to cross a state highway so as to require him to use it, rather than cross the highway at a right angle. The plaintiff, Brian Rice was struck by an automobile when he attempted to cross State Highway 70 in Cherry Hill from a pub on the westbound side to a gas station on the eastbound side.

The plaintiff testified that he walked toward Greentree Road, which crosses Route 70 at an intersection controlled by a traffic light and which has a pedestrian crosswalk. However, he felt that it was too dangerous to walk to Greentree Road because he would have had to cross two side streets that had no crosswalks. Instead, he decided to cross Route 70, an eight-lane state highway, at a right angle.

Rice indicated that he did not see any cars coming and that the car that struck him did not have any headlights on. The defendant testified that her headlights were on and that the plaintiff suddenly appeared in front of her car.

The trial judge charged the jury with respect to the duty of a pedestrian under both statutes—controlled and uncontrolled intersections. The jury found the plaintiff 75 percent at fault, and the court entered a final judgment for the defendant under the Comparative Negligence Act.

On appeal, the plaintiff contended that he was not required to use the crosswalk at Greentree Road and that he was lawfully crossing Route 70 at a right angle. Thus, the trial judge should have directed the jury that the crossing was legal under N.J.S.A. 39:4-34. Likewise, the trial judge should not have charged the jury with respect to a pedestrian’s duty to use a crosswalk under N.J.S.A. 39:4-33.

The Appellate Division disagreed with the plaintiff and affirmed. The court noted that there were fact issues for the jury to decide with respect to the “closeness and accessibility” of the crosswalk: How far away was the crosswalk; would it have been more dangerous for the plaintiff to walk along Greentree Road to the intersection; was the crosswalk “readily accessible” under the lighting and traffic condition. Under the circumstances, the court held that the trial judge “wisely” charged the jury with both traffic statutes.

Commentary: While the legal issues discussed by the court deal with the location of the crosswalk, there are other facts in the case which might have impressed the jury more. The plaintiff testified that the headlights on the defendant’s car were not on at the time of the accident. Nonetheless, the plaintiff never mentioned the headlights in answers to interrogatories or depositions. It seems to me that this “oversight” would be sufficient to negatively influence the jury’s “credibility and factual assessments” of the plaintiff’s testimony.

While I do not disagree with the determination of the Appellate Division that the trial court properly charged both statutes dealing with pedestrian crossings, I am disturbed by two evidentiary rulings that could have affected the outcome of the case. First, the trial court permitted a police officer, who did not witness the accident, to render a lay opinion, based upon a mathematical formula, that the defendant was driving less than the speed limit, even though the officer was not designated as an expert witness. The Appellate Division stated clearly that the allowance of the opinion testimony of the officer was “erroneous”; however, the court found that the testimony was “harmless” because defense counsel did not “mention, let alone emphasize,” the speed calculations in his summation.

Second, the court permitted the police officer to testify as to statements from the defendant and a passenger that the headlights were on. The Appellate Division noted that the statements were hearsay and that it was improper for a police officer to be used as “a conduct of hearsay by other declarants.” Nonetheless, the Appellate Division held again that the error was “harmless” because the jurors were provided “with repetitive accounts of those declarants’ factual narratives.”

The Appellate Division noted that the “obvious purpose” of the Rules of Evidence is “to promote fair advocacy.” In my opinion, the improper admission of the testimony from a police officer (a person of authority) that the defendant was driving within the speed limit and that a passenger said that the defendant’s headlights were on, hold the clear potential to influence the jury—whether or not the testimony was mentioned by defense counsel in summation or was cumulative.

The Appellate Division suggested that “considering the trial record as a whole, the evidential error was not clearly capable of producing an unjust result.” In my opinion, the trial record was tainted by improper testimony and hearsay. The case should have been reversed and remanded for a new trial.

PIP Reimbursement: In-Person Arbitration

N.J.S.A. 39:6A-9.1 provides that any insurer who pays PIP benefits as a result of an accident occurring within this state shall have the right to recover the amount of payments from any tortfeasor who was not required to maintain PIP coverage (other than for pedestrians) or although required to maintain such coverage did not do so. In other words, a PIP carrier has a right of reimbursement against two types of tortfeasors who do not maintain PIP: (1) the owners and operators of non-automobiles (commonly referred to as commercial vehicles) who are not required to provide PIP benefits; or (2) the owners and operators of uninsured automobiles who have not purchased PIP coverage.

If the tortfeasor is insured, the PIP carrier’s right of recovery shall be made against the insurer of the tortfeasor and shall be determined by arbitration. The insurer’s right of recovery shall be subject to the claims of the injured party and shall be paid only after satisfaction of that claim up to the limits of the insured tortfeasor’s policy limits.

New Jersey has a specific statute governing the arbitration of claims for PIP benefits. Under that statute, the Commissioner of Insurance has promulgated rules and regulations with respect to the conduct of dispute resolution proceedings. However, the Commissioner did not include PIP recovery within the scope of the regulation.

In State Farm v. Hereford, 454 N.J. Super. 1 (App. Div. 2018), the court considered the procedure for the arbitration of claims for PIP recovery under N.J.S.A. 39:6A-9.1. The plaintiff, State Farm, paid PIP benefits to its insureds who were injured in a motor vehicle accident. State Farm filed suit for reimbursement against Hereford, the insurer of the tortfeasor. State Farm filed a motion to compel arbitration with Arbitration Forums, an organization with which they had a contract to arbitrate PIP claims. The trial court granted the motion.

It was the practice of Arbitration Forums to conduct “telephonic hearings” instead of in-person arbitration. Although not a party to the arbitration contract, Hereford filed a motion to compel Arbitration Forums to conduct “an in-person arbitration hearing at a physical location.” The trial court denied the motion and reasoned that “the parties would not be deprived of their due process rights by appearing telephonically.”

The Appellate Division affirmed. At the outset, the court noted that disputes relating to PIP recovery were not regulated by the No Fault rules or regulations. Instead, these disputes are governed by the New Jersey Uniform Arbitration Act, N.J.S.A. 2A-23B.

The Arbitration Act states that the arbitrator may conduct a proceeding in any manner that is appropriate “for a fair and expeditious deposition of the proceeding.” The act does not require the arbitrator to hold a hearing “in person” or at a “physical location.”

The court found that a telephonic hearing will afford the parties “the opportunity to be heard, to present evidence, cross-examine witnesses, and make arguments.” Accordingly, the court held that telephonic hearings are permissible under the Arbitration Act.

Commentary: The opinion in State Farm deals only with the arbitration of disputes for PIP recovery under N.J.S.A. 39:6A-9.1. For all other PIP disputes, the Department of Banking and Insurance has adopted regulations “concerning the payment of medical expenses and other benefits provided by the personal injury protection coverage in policies of automobile insurance.” Those procedures include “in-person” hearings where the parties or their representatives appear “in-person or telephonically before the DRP to present their cases.” N.J.A.C. 11:3-5.2.

Evidence: Expert Testimony About Deployment of Airbags

As a general proposition, jurors may use their “common knowledge” to determine whether the conduct of the parties was reasonable. However, expert testimony is required when a matter at issue is so “esoteric” that jurors with “common judgment and experience” cannot form a valid judgment.

In Auttika Taing v. Braisted, 456 N.J. Super. 465 (Law Div. 2017), the court considered whether the defendant could question the plaintiff about the deployment of airbags. The defendant suggested that, since the air bags did not deploy, the impact between the vehicles was minor. The plaintiff argued the air bags were “complex instrumentalities” that are not within the common knowledge of an average juror and required expert testimony to understand their “mechanical intricacies.”

The plaintiff filed a motion in limine to bar the defendant from questioning the plaintiff “about whether or not the air bags deployed in his vehicle at any time during the course of the subject accident.” Judge Marczyk, in a written opinion supplementing a ruling at trial, noted that the activation of air bags is a “recurring issue” in automobile negligence cases. Sometimes, when air bags are deployed, the issue is raised by plaintiffs to demonstrate a serious impact. Sometimes, when air gabs are not deployed, it is used by defendants to suggest that the accident was relatively minor.

Nonetheless, the court noted that there are “too many variables” for a jury to understand why an air bag system did or did not activate. It is possible that an airbag may not deploy in a serious accident. Likewise, it is possible that an airbag might deploy in a minor accident.

Thus, the court concluded that an expert witness is needed to explain how an airbag system functions, the location of the sensors and the amount of force needed to trigger the airbag. Under the circumstances, the court held that, without expert testimony, the defendant cannot question the plaintiff with respect to the failure of the airbags to deploy.

Evidence: Correlation Between Property Damage and Severity of Injuries

It is typical in most automobile accident cases that the parties will look at the amount of property damage as evidence of the severity of the plaintiff’s injuries. For example, if the property damage is minor, the defendant will argue that the severity of injuries must be slight. On the other hand, if the property damage is heavy, the plaintiff will argue that the injuries must be significant.

In the seminal case of Brenman v. Demello, 191 N.J. 18 (2017), the defendant attempted to admit photographs that showed that the plaintiff’s vehicle sustained damages that were so minor that the plaintiff could not have sustained any serious or permanent personal injuries. In response, the plaintiff contended that the photographs should not be admitted unless the defendant provided an expert witness, a biomechanical engineer, who could testify about the relationship between property damage and personal injury.

The Supreme Court held that the testimony of a biomechanical expert is not required before photographs can be admitted to show a correlation between the property damage to a vehicle and the extent of injuries sustained by an occupant. Nonetheless, the court noted that “some bad accidents result in little injury, and some minor accidents result in serious injury.”

As a result of Brenman, the Supreme Court adopted Model Jury Charge (Civil) §5.34, Photographic Evidence in Motor Vehicle Accidents, which instructs the jury to weigh any photographs that show the condition of the vehicles after impact “as you deem appropriate taking into consideration all of the other evidence in the case.” The charge emphasizes that “in some accidents resulting in extensive vehicle damage, the occupants may suffer minor injuries or no injuries at all. In other accidents where there is no or little apparent vehicle damage, the occupants may suffer serious injuries.”

In Abdurraheem v. Koch, 456 N.J. Super. 496 (Law Div. 2018), the court confronted a different situation where the parties testified as to the amount of property damage; however, neither party produced any property damage photographs. The plaintiff testified that her vehicle did not sustain significant damage; however, the front bumper of defendant’s vehicle was hanging off after the accident. The defendant testified that the impact was minor (like riding a bumper car at an amusement park) and that the bumper was merely bent downward.

Thus, the defendant argued that the incident was “trivial” and not capable of causing permanent injury. Conversely, the plaintiff argued that the impact was not minor and was sufficient to cause a permanent injury. In a reversal of roles from Brenman, the defendant (not the plaintiff) suggested that the Model Jury Charge should not be charged to the jury in the absence of property damage photographs.

Judge Marczyk, in a written opinion supplementing a ruling during trial, noted that the oral testimony of a witness describing the property damage to the vehicle was similar to a photograph depicting the same damage. In either case, it is the function of the jury “to weigh and balance the evidence and to evaluate the credibility of the witnesses.” Thus, the jury must decide whether the property damage was “minor, moderate or significant” and to correlate “the damages to the vehicles and the cause or extent of plaintiff’s injuries.”

Under the circumstances, the court held that a Brenman charge should be given to the jury, even in the absence of photographs, with minor modification. The reference to “photographs” would be deleted from the Model Jury Charge and replaced with “testimony.”