This matter comes before the court on a motion for summary judgment by defendant, Charles Cappello, against plaintiffs, Rebecca and Walter Newman, pursuant to the verbal threshold statute, which is applicable because of the election made by plaintiffs. The issue presented is whether the verbal threshold applies where the defendant's intentional conduct is the alleged cause of plaintiffs' injuries.
On February 22, 1991, plaintiff, Rebecca Newman, was a passenger in a pickup truck driven by her husband, plaintiff, Walter J. Newman, Jr. The Newman vehicle was proceeding northbound
on Route 295 in Burlington Township, New Jersey. Defendant, Cappello, stated at his deposition that he was chasing the Newman vehicle up to the time of the impact. He claims he was attempting to stop the Newman vehicle for a perceived traffic infraction. It is alleged by defendant that plaintiff, Walter Newman, had cut defendant off while defendant was driving in the left lane of Route 295 North. The drivers of the two vehicles exchanged unpleasantries before pulling off to the side of the road. Defendant, Cappello, claims that while both vehicles were stopped on the side of the road, plaintiff, Walter Newman backed into his vehicle and then sped away on Route 295. It was after the vehicles reentered Route 295 that the accident occurred.
According to defendant, Cappello, his left arm was out the window and he brandished a whiffle ball bat as he attempted to get plaintiff, Walter Newman, to pull over again. He swung at the Newman vehicle with this bat as both cars proceeded down the highway but did not strike the vehicle. The Cappello vehicle was in the center lane and the Newman vehicle was in the left lane. The vehicles came in contact with each other causing a collision. Two independent witnesses came forward after witnessing the collision. They certified in separate statements that they saw the Cappello vehicle strike the Newman vehicle which sent it careening into the median.
Plaintiffs filed separate law suits against defendant, Cappello, alleging claims for negligence and intentional tort. Subsequently, the cases were consolidated. Defendant, Cappello, brings this motion for summary judgment against plaintiffs alleging that their individual injuries are not sufficient to cross the verbal threshold. Plaintiffs have opposed this motion on the basis that, although they elected the verbal threshold, it does not apply because defendant acted intentionally in causing their injuries.
The narrow issue which I am asked to decide on this motion is whether the verbal threshold applies to a plaintiff where an intentional act is the alleged cause of the injuries sustained. This issue appears to be one of first impression in the State of
New Jersey, the resolution of which turns on the statutory interpretation of the No Fault Act. The specific sections in question are N.J.S.A. 39:6A-8, 39:6A-4, 39:6A-7.
The initial paragraph of N.J.S.A. 39:6A-8a identifies those who may utilize the verbal threshold defense. That ...