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Meeting the Verbal Threshold Requirement for an Automobile Accident Injury through Scarring or a Permanent Injury

By on November 8, 2019 in Negligence with 0 Comments

The Verbal Threshold is a threshold requirement set by the New Jersey Legislature for an individual to be compensated for bodily injuries suffered in an auto accident. The Verbal Threshold, or the Limitation on Lawsuit option, was created in an effort to reduce the cost of car insurance by limiting a person’s ability to sue for noneconomic damages, or pain and suffering. N.J.S.A 39:6A-8. A person has an option to select a lower premium in exchange for a limited right to sue a person in a car accident. However, a person still has the option of selecting an unlimited right to sue in exchange for a higher premium.

The Verbal Threshold is not a complete bar on suing for pain and suffering caused by a car accident. An individual may still be able to sue for pain and suffering, even if they are subject to the Verbal Threshold, if they suffer an injury that falls under one of the following exceptions:

  1. Death
  2. Dismemberment
  3. Significant disfigurement or scarring
  4. Displaced fractures
  5. Loss of a fetus
  6. Permanent injury

If a person has suffered any of these injuries, then they are permitted to sue the party who caused the accident for pain and suffering. Death, dismemberment, displaced fractures and loss of fetus are more clear-cut exceptions than significant scarring or a permanent injury.

The Supreme Court of New Jersey has defined a “significant” scar or disfigurement as one that “an objectively reasonable person could find that the scar or disfigurement substantially impairs or injures the beauty, symmetry, or appearance of a person, rending the bearer unsightly, misshapen or imperfect, deforming the person in some manner.” Soto v. Scaringelli, 189 N.J. 558, 574 (2007). Other factors that courts are to consider are the “appearance, coloration, existence and size of the scar, as well as, shape, characteristics of the surrounding skin, remnants of the healing process, and any other cosmetically important matters.” Id.

In Soto, the court found a scar on a person’s shoulder was not “significant” enough to breach the threshold. The judge reviewed the scar in person and verbally described it for the record and noted that the surgeon had done a remarkable job. The judge described the scar as approximately 4 inches in length and that it was not noticeable absent a strong light. The judge dismissed the case without permitting a jury to decide whether the person should be awarded money.

A permanent injury is defined as one that has not healed and will not heal to function normally with further medical treatment. N.J.S.A. 39:6A-8(a). This injury must be proven with objective clinical evidence. A person’s subjective complaints alone will not overcome the threshold. A doctor must certify that a person has suffered a permanent injury that is based on objective clinical evidence in order for a person to even file a lawsuit. The doctor must state that their opinion is based on objective clinical evidence and not dependent solely on the person’s subjective complaints. This certification must be provided to a defendant during the early stages of litigation in order for the case to continue. A court will dismiss a case absent this certification.

The Supreme Court of New Jersey has found that an MRI showing a herniated disc as certified by a doctor is sufficient objective evidence to allow a case to proceed. Pungitore v. Brown, 379 N.J. Super. 165 (App. Div. 2005).  A jury will then decide whether the objective clinical evidence should be considered “permanent” in order to breach the threshold and whether the plaintiff should be awarded money for pain and suffering based on the “permanent” injury.             

The Verbal Threshold is a powerful tool that an insurance carrier has in New Jersey to defend auto accident cases. A person’s right to sue for pain and suffering under the Verbal Threshold is limited to one of the aforementioned exceptions. As such, a person’s right to sue for pain and suffering under the Verbal Threshold is limited, but it is not completed barred.

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Edward F. Kuhn, III, Esq.

About the Author

About the Author:

Mr. Kuhn focuses his practice in general defense litigation through the federal and state courts of New Jersey and Pennsylvania, with a concentration on tort defense, premises liability, products liability, Tort Claims Act defense, construction, estates, employment and professional malpractice. His clients include large and small business owners, municipalities and governmental entities, manufacturers, and their insurers. Prior to joining Capehart Scatchard, Edward served as a Law Clerk for Phelan, Hallinan, and Schmieg.

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