Superior Court of New Jersey, Law Division, Atlantic
Decided: July 12, 2018
Lafferty, for plaintiff (Cooper Levenson, attorneys).
Christine Mercado-Spies, for defendant (Styliades &
issue addressed in this matter is whether it is appropriate
in a personal injury action, stemming from an automobile
accident, for plaintiff's counsel to question his client
as to whether his vehicle was "totaled" as a result
of the accident with defendant's vehicle. The question
was asked to demonstrate to the jury the significance of the
impact. While this issue often arises in the context of
automobile negligence actions, it does not appear that it has
been heretofore addressed by the courts in New Jersey.
plaintiff in this matter alleged that he sustained permanent
injuries in a motor vehicle accident caused by the defendant.
During the direct examination of plaintiff at trial,
plaintiff's counsel inquired as to whether
plaintiff's vehicle was totaled as a result of the
subject accident. Defense counsel objected arguing the
question was improper. Defendant argued that whether or not
the vehicle was totaled (or a total loss) without more
information could mislead the jury regarding the extent of
the actual damage to the vehicle. Plaintiff, in turn,
asserted that whether the vehicle was totaled is relevant
with respect to the extent of the collision and its
corresponding impact on plaintiff's injuries, which can
be considered by the jury pursuant to Brenman v.
Demello, 191 N.J. 18 (2006). The court ultimately
sustained the objection on the basis of
issue the court must decide is whether it is relevant to the
jury's consideration of plaintiff's alleged injuries
whether plaintiff's vehicle was totaled in the accident
at issue. It is well established that any evidence presented
at trial must be relevant. "[R]elevant evidence means
evidence having a tendency in reason to prove or disprove any
fact of consequence to the determination of the action."
N.J.R.E. 401. In determining whether evidence is relevant,
the inquiry focuses upon "the logical connection between
the proffered evidence and a fact in issue." State
v. Hutchins, 241 N.J.Super. 353, 358 (App. Div. 1990).
That is, relevance has to do with whether the evidence
proffered "renders the desired inference more probable
than it would be without the evidence." State v.
Davis, 96 N.J. 611, 619 (1984) (quoting State v.
Deatore, 70 N.J. 100, 116 (1976)). To say that
"evidence is irrelevant in the sense that it lacks
probative value" means that it "does not justify
any reasonable inference as to the fact in question."
State v. Allison, 208 N.J.Super. 9 (App. Div. 1985)
(quoting McCormick on Evidence, § 185 at 544
(3rd ed. 1984)). Conversely, if evidence does support the
existence of a specific fact, even obliquely, it is relevant
and admissible. Verdicchio v. Ricca, 179 N.J. 1,
circumstances either party can enter photographs of the
vehicles involved in an accident into evidence pursuant to
Brenman, 191 N.J. at 35-36. Brenman is
often cited by parties in their attempt to present testimony
that a vehicle was (or was not) totaled in an accident.
Ibid. In Brenman our Supreme Court
permitted the utilization of photographs of the damaged
vehicles in a personal injury case. Ibid. The Court
determined the jury could consider the photographs in
evaluating the seriousness of the accident and its impact on
plaintiff's injuries. Ibid. A jury charge is
routinely given in auto negligence cases consistent with
Brenman. Specifically, jurors are instructed:
A number of photographs of one or more of the vehicles
involved in the accident have been introduced into evidence.
These photographs show the damage or depict the condition of
the vehicles after the impact. As judges of the facts, you
may attribute such weight to the photographs as you deem
appropriate taking into consideration all of the other
evidence in this case. In some accidents resulting in
extensive vehicle damage, the occupants may suffer minor
injuries or no injuries at all. In other accidents where
there is no or little apparent vehicle damage, the occupants
may suffer serious injuries. In reaching your decision in
this matter, you are to give the photographs whatever weight
you deem appropriate. They are but one factor to be
considered, along with all other evidence, in determining
whether the plaintiff sustained injuries as a result of the
[Model Jury Charges (Civil), 5.34,
"Photographic Evidence in Motor Vehicle Accidents"
(approved Oct. 2009.]
court's view, the use of photographs from an accident is
distinguishable from advising the jury that a vehicle was
totaled. Testimony regarding whether a vehicle was totaled
does not provide a jury with the same type of information as
photographs or testimony regarding the extent of the damage.
In fact, it can be very misleading as discussed below.
threshold matter, the term "totaled" has two very
different meanings. When someone is told that a vehicle has
been totaled it may conjure up images of a vehicle that has
been completely demolished in a serious accident.
Notwithstanding the connotations of the term, it also has an
objective meaning within the insurance industry that means
something entirely different from its colloquial use. In
determining whether a vehicle is totaled or a total loss,
insurance companies have to consider a variety of factors
including: the cost of repairing the vehicle, the projected
diminished resale value, projected rental costs, a comparison
to the actual cash value of the vehicle, along with the
projected proceeds of selling the vehicle for salvage. In
insurance parlance, "[t]ypically, cars are considered to
be 'totaled' when the cost to repair the vehicle is
higher than the actual cash value of the vehicle. Practically
speaking, however, it is not always practical to repair a
vehicle even if the cost of repair is less than its actual
cash value." Gary Wickert, Esq., When is a Vehicle
Considered a Total Loss?,
Claims Journal (Dec. 5, 2013),
"The criteria for deciding when a car is a total loss
and when it can be repaired vary from insurance company to
insurance company and might even be dictated and controlled
by state statute or regulation." Ibid. Given
the different meanings of totaled it is improper, in the
court's view, to allow either party to raise this issue.
Simply because a vehicle may have been totaled, without more
information, does not render the desired inference (i.e. that
plaintiff was injured because of the severity of the
accident) more probable than it would be without the
counsel properly introduced photographs into evidence that
depicted the damage of the vehicle. However, plaintiff's
attempt to ask a witness whether his vehicle was totaled is
irrelevant in the court's view. The court is mindful this
issue is also routinely raised by defense counsel when the
vehicle at issue is not declared a total loss. This is
equally misleading and irrelevant. The court recognizes that
the extent of the impact is relevant in automobile negligence
actions. However, whether a car was totaled does not provide
the jury with meaningful information with respect to the