Category Archives: Personal Injury

Auto carrier must compensate man who slippe don ice and struck head on jack

In Penn National v. Costa, decided April 29, 2008, the Appellate Division reversed the Law Division’s denial of the motion for summary judgment by the defendant/third-party plaintiff homeowner’s insurer and remanded for the entry of judgment for the homeowner’s insurer and against the plaintiff automobile insurer in a coverage action for injuries sustained by the third-party defendant when he slipped on ice and hit his head on the vertical post of the jack being used to replace a tire on his employer’s pickup truck in the employer’s driveway. Because the injuries arose out of the maintenance of an automobile, which fell under an exclusion in the homeowner’s insurance policy, the court held that the auto carrier was required to defend and indemnify the vehicle owner.
This is a published opinion and will constitute binding precedent going forward. It is noteworthy, insofar as the court uncharacteristically enforced a policy exclusion. However, this was most likely due to the fact that alternate coverage was in place.

No bootstrapping: MRI evidence must be introduced by qualifed doctor

In Agha v. Feiner, decided by the Appellate Division on December 18, 2007, a jury verdict following a trial on damages only in an automobile negligence action was reversed and remanded for the entry of a judgment for the defendants based on a violation of the principles set forth in Brun v. Cardoso . Neither of the plaintiff’s two expert witnesses (anesthesiologist and chiropractor) was qualified to read MRI films, but both testified about whether the plaintiff had a herniation; this was “a classic case of bootstrapping otherwise inadmissible MRI reports into evidence”; furthermore, this case “starkly presents the need for cross-examination of the doctor who read the MRI.” This case again highlights the importance of retaining a qualified physician to testify concerning objective testing results, and will apply equally to defendants who fail to retain a radiologist or similarly competent expert.