A Capehart Scatchard Blog

Plaintiff’s Inability to Apportion Damages between Two Successive Accidents Does Not Bar His Claims

By on August 14, 2014 in Blog with 0 Comments

Plaintiff Philip Biazzo (“Biazzo”) had the misfortune to be rear ended twice in a single afternoon. He sued the drivers of both vehicles. As a result of both accidents, he claimed injury to his neck, back, and shoulders. He had suffered prior back and shoulder injuries but Biazzo claimed he had been asymptomatic for years. Plaintiff’s expert opined that Biazzo suffered a permanent injury to the neck, back, and shoulder. Plaintiff did not apportion the respective damage between the two collisions, nor did he apportion damage between the prior and new injuries. In Biazzo v. Parker, 2014 N.J. Super. Unpub. LEXIS 1721 (July 15, 2014 App. Div.), the plaintiff appealed the dismissal of his case after the drivers won on summary judgment due to his failure to apportion his damages.

Plaintiff had been on his way to a routine doctor’s visit when the first collision occurred at 1:25 pm. Plaintiff refused medical treatment and continued on to his doctor’s office. After leaving the doctor’s office, at 3:30 pm, he was rear ended again.

The defendants successfully obtained a dismissal because the trial judge accepted their argument that the plaintiff was required to prove what portion of his injuries was caused by the first accident and what portion was caused by the second accident. The plaintiff’s doctor had submitted a report that it was not possible to determine which injuries resulted from which accident. Further, although the plaintiff did not plead an aggravation of previous injuries, the trial court held that the plaintiff was required to differentiate between the prior injuries and the injuries caused by the new incidents.

On appeal, the Appellate Division disagreed. The Appellate Division concluded that (1) because the plaintiff did not plead aggravation, he was not required to offer a medical analysis comparing his past and current injuries and (2) defendants, as opposed to plaintiff, should have been assigned the burden to differentiate the causative effect of the respective collisions.

Because these claims involved successive accidents and the plaintiff was unable to present evidence to a jury as to apportionment, the appeals court ruled that the plaintiff’s claim should not have been barred. The Appellate Division held that the defendants may present evidence to enable the jury to allocate damages among them. If such evidence is unavailable, then the court will equally allocate damages.


About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 30 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020-2023, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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