On appeal from Superior Court, Law Division, Ocean County.
Approved for Publication June 9, 1995.
Before Judges King, D'Annunzio and Eichen. The opinion of the court was delivered by Eichen, J.s.c. (temporarily assigned)
The opinion of the court was delivered by: Eichen
EICHEN, J.S.C. (temporarily assigned)
In this verbal threshold personal injury negligence action, plaintiff appeals from an adverse judgment entered on a jury verdict determining that her injuries had not satisfied the verbal threshold statute, N.J.S.A. 39:6A-8a. After defendant admitted liability for the accident, the case was submitted to the jury. Plaintiff had to persuade the jury that she was entitled to damages for non-economic loss. Under the statute, a negligent defendant is exempted from tort liability for non-economic loss to a person who is subject to the verbal threshold, unless that person has sustained a personal injury falling within one of nine defined injury types. N.J.S.A. 39:6A-8a. Here, the case was submitted to the jury on injury types seven and eight. As such, the jury was asked to consider whether plaintiff had met her burden of proving by objective medical evidence that she had sustained a "significant limitation of use of a body function or system" or a "permanent consequential limitation of use of a body organ or member" and, if so, whether those injuries have had a serious impact on plaintiff's life. Ibid.
This is a typical soft-tissue injury case. The record reflects that plaintiff's evidence at trial presented a close case as to whether the verbal threshold requirements were satisfied. The jury returned a verdict of no cause of action under the verbal threshold statute. Plaintiff moved for a new trial on the ground that the Judge erred in refusing to grant her motion for a mistrial based on defense counsel's inflammatory comments during summation concerning the automobile insurance crisis. The Judge denied the motion. On appeal, as below, plaintiff claims the comments prejudiced the jury's proper consideration of the issues and relevant evidence in the case, which was responsible for the adverse verdict. We agree and reverse.
Defense counsel went beyond the proper scope of permissible argument. During summation, defense counsel stated:
Let me start off by saying that if there's anyone who thinks that they don't pay enough money for car insurance or if there's anyone who thinks that the legal system deals with these soft tissue type cases in a perfect way and the legal system should not be changed or reformed regarding the way that these soft tissue cases are dealt with, then please ignore everything I have to say.
However, if you folks think that maybe you do pay too much for car insurance and you'd like to see the rates go down and you'd like a chance to --
Plaintiff objected and moved for a mistrial which was denied. The Judge then gave the following precautionary instruction:
Ladies and gentlemen, sometimes an attorney, in some . . . part of a case, approaches a matter in what the Court feels is not an issue in the case. Let me say this: In a good percentage of cases involving automobiles, insurance is involved. I think that's a fact of life, you all know that. And this is -- normally, it's not mentioned at all in a case, but in this case it is discussed because of that verbal threshold that we were talking about in the beginning of the case.
But, if the consideration is that if you want to see your insurance go down you approach the case one way and if you don't care if it goes up, you approach the case another way, is inappropriate. . . . If a person is entitled to be compensated for their injuries, because of someone's fault, they're entitled to be compensated for their injuries. If they're not, they're not.
Now, normally, they're not compensated for their injuries, perhaps, because the accident may have been their fault. But, this new wrinkle in the law is that they're not entitled to be compensated if they purchase a certain type of policy which sets up this verbal threshold and they haven't met it because they have chosen this policy rather than one that doesn't have the verbal threshold. So, they made the choice. By making that choice, they are then subject to that threshold.
So, I caution you to listen to the law as to what standards have to be met by the plaintiff in proving their case. But, as to its effect on insurance, that really is absolutely no part of the case because, as I say, I'm saying once more, if the test is met, then a person is entitled to ...