Category Archives: Civil Litigation

Lois LLC counts among its clients several general liability, premises liability and automobile liability insurance carriers and third party administrators. Our attorneys regularly represent these clients’ insureds in defense of personal injury matters filed in all counties in Metropolitan New York, all counties in New Jersey and in the federal courts. We also defend the rights of carriers and self-insureds in reimbursement claims under New York WCL § 29 and New Jersey’s Section 40 (N.J.S.A. 34:15-40).

As with all litigated matters, we take a proactive approach to the defense of claims of personal injury and, as a result, our clients enjoy a very high rate of success in settlement and at trial. Learn more here: https://loisllc.com/general-litigation/

Pre-Answer Motion Practice in New York: Civil Litigation Webinar

Join Us for This Live Webinar on Monday, August 10, 2020 at 3:00 PM EST

In this live webinar, “Pre-Answer Motion Practice in New York,” Christopher Major, Civil Practice Team Leader at Lois Law Firm, leads a presentation and discussion on the Join us for this live discussion and Q & A.

Major will discuss the following:

  • The value of Pre-Answer motions in reducing litigation in New York?
  • What risk professionals need to know about pre-suit preparation in New York.
  • How recent case decisions will impact the practice in 2020.

To register for our Civil Litigation Webinar Series, a monthly discussion of recent case law developments and best practices for handling civil claims and reimbursement actions, click the button below (or register here).

Continue reading Pre-Answer Motion Practice in New York: Civil Litigation Webinar

Video: New York’s “Serious Injury” Threshold

The “Major Monday’s” Webinar

In this video, “New York’s Serious Injury Threshold,” Christopher Major provides an overview of Article 51 of the Insurance Law which provides that a plaintiff in a personal injury action arising out of negligence in the use or operation of a motor vehicle must establish that he/she has incurred a basic economic loss exceeding $50,000 or must establish that he/she has suffered “serious injury.” This video is from a live presentation on July 13, 2020.

Major discusses the following:

  • What is the legal definition of “serious injury” in in New York?
  • What the “$50,000” carve out is and how it applies to reimbursement actions in New York.
  • What risk professionals need to know about motor vehicle recoveries in New York.
  • How recent case decisions will impact the practice in 2020.

To register for our Civil Litigation Webinar Series, a monthly discussion of recent case law developments and best practices for handling civil claims and reimbursement actions, click the button below (or register here).

Continue reading Video: New York’s “Serious Injury” Threshold

The Serious Injury Threshold in New York: Civil Litigation Webinar

Join Us for This Live Webinar on Monday, July 13, 2020 at 3:00 PM EST

In this live webinar, “The Serious Injury Threshold in New York,” Christopher Major, Civil Practice Team Leader at Lois Law Firm, leads a presentation and discussion on the basics of New York’s “Serious Injury Threshold.” Article 51 of the Insurance Law provides that a plaintiff in a personal injury action arising out of negligence in the use or operation of a motor vehicle must establish that he/she has incurred a basic economic loss exceeding $50,000 or must establish that he/she has suffered “serious injury.” Join us for this live discussion and Q & A.

Major will discuss the following:

  • What is the legal definition of “serious injury” in in New York?
  • What the “$50,000” carve out is and how it applies to reimbursement actions in New York.
  • What risk professionals need to know about motor vehicle recoveries in New York.
  • How recent case decisions will impact the practice in 2020.

To register for our Civil Litigation Webinar Series, a monthly discussion of recent case law developments and best practices for handling civil claims and reimbursement actions, click the button below (or register here).

Continue reading The Serious Injury Threshold in New York: Civil Litigation Webinar

Video: Basics of Civil Litigation in New Jersey

The “Major Monday’s” Webinar

In this video, “Basics of Civil Practice in New Jersey,” Christopher Major provides an overview of civil litigation in New Jersey’s Superior courts. This video is from a live presentation on June 8, 2020.

Major discusses the following:

  • What are the jurisdictional requirements to bring a supreme court action in New Jersey?
  • The “who, what, where, and when” of how lawsuits are filed.
  • What risk professionals need to know about civil practice in New Jersey.
  • How recent case decisions will impact the practice in 2020, including the recent decision in New Jersey Transit Corp v. Sanchez.

To register for our Civil Litigation Webinar Series, a monthly discussion of recent case law developments and best practices for handling civil claims and reimbursement actions, click the button below (or register here).

Continue reading Video: Basics of Civil Litigation in New Jersey

Basics of Civil Practice in New Jersey: Civil Litigation Webinar

Join Us for This Live Webinar on Monday, June 8, 2020 at 3:00 PM EST

In this live webinar, “Basics of Civil Practice in New Jersey,” Christopher Major, Civil Practice Team Leader at Lois Law Firm, provides an overview of civil litigation in New Jersey’s Superior courts. Join us for this live discussion and Q & A.

Major will discuss the following:

  • What are the jurisdictional requirements to bring a superior court action in New York?
  • The “who, what, where, and when” of how lawsuits are filed.
  • What risk professionals need to know about civil practice in New Jersey.
  • How recent case decisions will impact the practice in 2020.

To register for our Civil Litigation Webinar Series, a monthly discussion of recent case law developments and best practices for handling civil claims and reimbursement actions, click the button below (or register here).

Continue reading Basics of Civil Practice in New Jersey: Civil Litigation Webinar

Risk Transfer: New Jersey Supreme Court Affirms Carrier-Friendly Subrogation Decision

In a decision helpful to New Jersey’s workers’ compensation insurers, on May 12, 2020 the New Jersey Supreme Court found that a workers’ compensation carrier seeking risk transfer actually has greater rights as subrogee than the petitioner-subrogor possesses in motor-vehicle accident cases.

Facts from the Supreme Court Decision

A New Jersey Transit Corporation employee, David Mercogliano, sustained injuries in a motor vehicle accident while in the course of his employment. As a result, New Jersey Transit became obligated to pay workers’ compensation benefits. The petitioner was covered under standard automobile insurance policy, which included coverage for PIP benefits. Pursuant to the right of subrogation afforded to workers’ compensation carriers under NJSA 34:15-40 (“Section 40”), New Jersey Transit filed a complaint against the defendants seeking to recoup amounts paid in workers’ compensation benefits. The defendants raised the affirmative defense of the claim being barred pursuant to New Jersey’s Automobile Insurance Cost Reduction Act (“AICRA”).

The Defenses Raised

The affirmative defense invoked by the defendants arises from something called the “verbal threshold” in New Jersey. The verbal threshold is also known as the “limitation on lawsuit” option for automobile insurance policies. In an effort to reduce insurance premiums and to provide some docket relief for trivial motor vehicle accident cases, New Jersey adopted AICRA. Essentially, the plaintiff’s own automobile insurance policy affects the plaintiff’s right to sue the defendants in exchange for lower premiums. The defendants can invoke the verbal threshold affirmative defense based on what coverage the plaintiff possesses. The verbal threshold bars suits for noneconomic damages (i.e., pain and suffering) unless the plaintiff has one or more of six qualifying injuries/conditions:

  1. Death
  2. Dismemberment
  3. Significant disfigurement or scarring
  4. Displaced fractures
  5. Loss of a fetus
  6. Permanent injury other than scarring or disfigurement (this is the “catch-all” and the most litigated)

The permanent injury (#6 above) must be within a reasonable degree of medical probability. In the statute, it is defined as when a body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment. This is where most cases, particular those involving soft tissue injuries, are won and lost. The plaintiff must within 60 days of the defendant’s answer provide a certification from a physician under penalty of perjury based on, and referring to, objective clinical evidence. New Jersey Model Jury Charge 5.33 provides that there must be a preponderance of the evidence and a permanent injury via objective, credible medical evidence. The verbal threshold can be invoked by the defendants as an affirmative defense and can form the basis for a motion for summary judgment.

In New Jersey Transit Corp. a/s/o Mercogliano, the defendants made the argument that the petitioner’s suit was barred by the verbal threshold, and they prevailed on this argument at the trial level. However, the Appellate Division ultimately reversed the decision on the basis that New Jersey Transit’s pursuit of reimbursement was not for noneconomic loss, but rather for economic damages in the form of lost wages and medical expenses. New Jersey Tr. Corp. v Sanchez, 457 NJ Super 98, 197 A3d 1158 (App. Div. 2018). Citing to Lambert v. Travelers Indemnity Co. of America, 447 N.J. Super. 61 (App. Div. 2016), the Appellate Division held that the carrier’s right of subrogation arises under the Workers’ Compensation Law, which is separate and distinct from the policies of AICRA. Therefore, New Jersey Transit, as the employer, was permitted to pursue the claim even though the petitioner’s own suit would be barred, in theory. The carrier is evidently entitled to reimbursement from the tortfeasors even though the employee would not be able to recover medical expenses and wage loss from their own automobile insurer or noneconomic damages from tortfeasors. This would seem to be contrary to the concept of subrogation in that the carrier is being afforded a cause of action that the worker themselves could not bring. Unsurprisingly, appeal was taken to the New Jersey Supreme Court by the defendants and the Supreme Court granted certification.

The Supreme Court Ruling

In a decision reached on May 12, 2020, split 3-3 between the New Jersey Justices of the Supreme Court, the Appellate Division decision was affirmed. A copy of the decision can be found here.

The Supreme Court found no conflict between AICRA and the New Jersey Workers’ Compensation Law, noting that the pursuit of lost wages and medical benefits in a workers’ compensation claim arises under the Workers’ Compensation Law, not AICRA, as the primary source of recovery. The Supreme Court concluded that the petitioner had suffered economic damages in the form of lost wages and medical treatment, and that New Jersey Transit Corp., as the employer, was permitted to seek reimbursement via subrogation pursuant to Section 40, notwithstanding AICRA and the verbal threshold.

Why This Is Helpful to Workers’ Compensation Carriers

Practically, this decision represents an uncommon boon for workers’ compensation carriers. This is a rare instance where the carrier actually has greater rights as subrogee than the petitioner-subrogor possesses. Whereas the petitioner’s claim would have been barred by the verbal threshold based on his election for the limitation on lawsuit option in his automobile insurance policy, the employer’s action as subrogee survived summary judgment and, in the view of the New Jersey Supreme Court, should be allowed to continue. The practical implication of this ruling is that the carrier should liberally pursue reimbursement via subrogation pursuant to Section 40 in New Jersey motor vehicle accident cases. One of the most powerful defenses afforded to defendants in such actions does not hamper the carrier’s ability to prosecute the claim, even where the petitioner would have no cause of action. Therefore, there is little harm, and potentially substantial upside, in filing a subrogated civil complaint on behalf of the carrier in a New Jersey Superior Court in cases where liability of the defendants (and the adverse carrier thereby) seems clear. This should permit recovery via subrogation in cases where, previously, there was no opportunity for reimbursement because the petitioner’s own action would be barred by the verbal threshold based on their injuries.

Continue reading Risk Transfer: New Jersey Supreme Court Affirms Carrier-Friendly Subrogation Decision