Limiting Your Right to Sue

By: Nikhil Agharkar, Esq.

 

One of the ways to save money on car insurance is to select the “limitation on lawsuit” option. Many New Jerseyans choose this option without understanding the full impact of their selection. Often, that’s because when we look for car insurance, we’re most interested in saving money. Now, don’t get me wrong, I like to save money too, but it’s important to know what you are giving up when you save money on car insurance by selecting the limitation on lawsuit option.

To illustrate, let’s look at an example: you’re sitting at a red light. Out of nowhere a drunk driver rams the back of your car. As a result, you suffer three herniated discs in your back. But when you bought your car insurance, you selected the ‘limitation on lawsuit option.’ Therefore, incredible as it may sound, in order for you to sue that drunk driver you must do more than just show that he was at fault for drinking too much and driving in to the back of your car.

When you select the limitation on lawsuit option N.J.S.A. 39:6A-8 requires that you show that as a result of the other driver’s negligence you: a) died, b) were dismembered (aka lost a limb), c) had a miscarriage, d) were seriously scarred or disfigured, e) suffered a displaced fracture (hairline fractures are not good enough), or f) suffered a permanent injury.

Going back to our example from above, if we want to take that drunk driver to court, we have to show that those herniated discs in your back are a permanent injury. To do that though, we need objective medical evidence along with doctor’s opinions, and have those doctors come testify at trial as to the permanent nature of your herniated discs. However, the drunk driver’s car insurance is going to also hire doctors that will examine you and come to court and likely give opinions that are contrary to your doctors. Basically, this doctor hired by the drunk driver’s insurance company comes to court and will probably say that your discs were already herniated or that your pain is not that bad and that the injury is not permanent. All this fighting is over whether or not your pain, from herniated discs, is permanent or not. If a jury find that your herniated discs just aren’t that bad, then you get nothing.

It’s also important to note that everyone in your household , without their own car insurance, is subject to this limitation on lawsuit selection. So if that drunk driver came along while you were driving your kids home from practice, and injured them in a way that does not fall into one of the first five categories in N.J.S.A. 39:6A-8, then they also have to prove their injury is permanent.

But the reason we have to prove permanency is because your insurance policy has a limitation on lawsuit. That limitation, in our drunk driving example, allows that drunk driver’s insurance company to not pay, even though he was clearly at fault.

The take away here though, is that you have a choice. You can select the ‘no limitation on lawsuit option’ on your car insurance and not have any of these problems if the worst happens. While it may cost a little more money, I think we can all agree it’s worth the peace of mind knowing that if you are injured because of someone else’s negligence you can hold them accountable, no matter what.

Call us if you have any questions about your insurance policy or if you have been injured as the result of a motor vehicle incident. Take a look at our Personal Injury areas of practice.