Biomechanics experts testimony admissible

Following a series of unfavorable rulings in the Appellate Division over the past few years, New Jersey courts were generally of the view that biomechanical experts could not be called upon by defendants to opine that a minor automobile accident could not have possibly caused a serious medical condition. However, on March 6, 2008, the New Jersey Supreme Court announced its decision on Hisenaj v. Kuehner, ___ N.J. ____ (2008), reversing an appellate court that overstepped its bounds in throwing out the report of Harold Alexander, PhD., based upon the conclusion that it was not supported by reliable scientific methodology. Thus, the defendants were left with the prospect of facing exposure for significant medical treatment, including spinal surgery, for a motor vehicle collision occurring at less than ten miles per hour. However, the Supreme Court found that the studies Dr. Alexander relied upon, as opposed to those used for support in prior cases, included similar accidents and similar victims in terms of age, gender and physical composition. Thus, the opinions offered were sufficiently supported by scientific data for admissibility.

This was an important victory for insurance carriers in New Jersey, as juries will no longer be left to determine whether low impact collisions correlate to serious medical conditions, especially in the spine, which often times are pre-existing. However, it remains important for defense counsel to insist that their biomechanical experts rely upon the most recent and up-to-date empirical evidence.

TMWB maintains an extensive automobile liability defense practice, representing insureds on personal auto, as well as commercial policies.

TMWB continues leadership in insurance coverage litigation

In a decision rendered March 5, 2008, the Appellate Division agreed with the Firm that a CGL policy exclusion which seemingly denied coverage for any subcontractor’s employee sustaining injury on a construction site with the insured – whether or not the insured had retained that subcontractor – was invalid. In Pyramid Construction, LLC v. Essex Insurance Company, Docket No.: A-4290-06T3, the court found that the following language was inherently ambiguous and nullified the protections of the policy:

[T]here is no coverage under this policy for ‘bodily injury’ or ‘property damage’ sustained by any contractor, self-employed contractor, and/or subcontractor, or any employee, leased worker, temporary worker or volunteer help of same.

This particular language had never been passed upon by a New Jersey court. The court’s decision was based primarily on the fact that immediately above the quoted language, was a requirement that the insured’s subcontractors meet certain insurance requirements, or coverage would not apply. The obvious question then was why require subcontractors to carry certain insurance, when they were not covered in the first place? Under the facts of the particular case, the insured was itself a subcontractor on a construction site where a worker was killed. The worker was not an employee of any of the insured’s subcontractors, but the carrier denied coverage anyway, exposing the insured to a potential multi-million dollar verdict. With this ruling by the Appellate Division, TMWB, lead by partner Joe Cobuzio, ensured a defense and indemnification for the insured.

TMWB regularly handles declaratory judgment actions on behalf of both insurers and insureds in the State and Federal courts of New Jersey.

Passenger in stolen vehicle is 'covered'

Passengers in stolen cars who are unaware the vehicles are being driven without the owner’s permission may collect PIP and UIM insurance if they’re injured in an automobile accident, the Appellate Division has ruled. In Hardy v. Abdul-Martin, the appeals court reversed a grant of summary judgment to an insurance company that denied coverage in such a circumstance under an exclusion in the insurance contract. The court said, “A passenger cannot be expected to inquire upon entry into a vehicle, as to the status of the car and driver, unless existing facts place the passenger on notice that the use of the car is questionable.”

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.

D'uh! Explicit warnings shield manufacturer from liability when ATV operator ignores warnings

In Koruba v. American Honda Motor Co., Inc., an Appellate court affirmed dismissal on summary judgment the plaintiff’s product liability failure-to-warn lawsuit where, despite an ATV manufacturer’s warnings in the owner’s manual and oral warnings by the retailer seller at the time of sale, the plaintiff attempted an extreme jump and sustained serious injury. The court found that the plaintiff’s expert opinion on the need for on-product labeling was a net opinion on neither epidemiological data or empirical research linking such need to the magnitude of risk associated with jumping. The court also found no basis for the expert’s other opinion that Honda’s promotional marketing of its ATV sent a mixed message to consumers, resulting in their failure to heed warnings actually given.

New Jersey courts invalidate another CGL exclusion

In American Wrecking Corp. v. Burlington Ins. Co., et al., the fundamental issue was the impact of a “Cross Liability Exclusion” which was added, at the time of renewal, to the liability insurance policy purchased by plaintiff American Wrecking (AW), and provided by defendant Burlington. The question, decided November 29, 2007, was triggered by the filing of certain construction worksite personal injury claims, thus requiring the court to determine whether a fair interpretation of the Exclusion compelled indemnification or supports disclaiming. The court recites the history of the claims and the pertinent policy language and concludes that it would be against public policy and the law as the court understands it to uphold the Exclusion here. The construction contract between Roche, as owner, and plaintiff AW, as contractor, clearly provided that the owner was to be indemnified by AW, and AW’s plight, in turn, was to seek relevant insurance coverage. The original 2002 policy undisputedly provided liability coverage for AW and its additional insureds. In the more costly 2003 renewal policy, however, Burlington inserted the Exclusion, eliminating coverage for “any insured.” Thus, the Exclusion effectively eliminated liability coverage for AW and any entities listed as additional insureds under the policy. This result is fundamentally inconsistent with commercially reasonable standards. While the Exclusion is not ambiguous, clarity of meaning does not defeat the need to ensure that the policy language conforms to public expectations and commercially reasonable standards.

BUSINESS IMPACT:
This decision further demonstrates New Jersey courts’ willingness to overlook unambiguous policy language in favor of obtaining a result in the best interest of the insured. Carriers must be careful not to include exclusionary provisions, even if clearly drafted, which can be seen as effectively excluding the main operations for which the insurance is purchased.

Contributed by: Joseph K. Cobuzio and Jared DuVoisin

Defending Employers