In the case of Bolz v. Bolz, a published opinion relapsed in May 2008, the Appellate Division examined the combined effect of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3; the Joint Tortfeasors Contribution Law (JTCL), N.J.S.A. 2A:53A-1 to -5; and the Comparative Negligence Act (CNA), N.J.S.A. 2A:15-5.1 to -5.17, when there is a collision between a private automobile and an automobile that is owned by a public entity and driven by a public employee. It was held that despite the fact that a public entity is not liable to pay damages unless plaintiff sustained a permanent injury as defined in the TCA, both drivers are deemed “tortfeasors” if they are found to have been negligent and their negligence was a proximate cause of the accident.

Therefore, allocation or apportionment of each driver’s negligence or fault must be assessed, even if there is a possibility that the public entity may not be liable for damages. Put a different way, although no damages can be awarded against a public entity or employee for pain and suffering if the injuries caused by an accident do not meet the threshold set by the TCA, the public employee is, nonetheless, a tortfeasor pursuant to JTCL and the CNA and this affects the judgment against the private tortfeasor.

In a decision released June 10, 2008, the New Jersey Supreme Court held that a negligent infliction of emotional distress claim, fashioned on the liability set out in Portee v. Jaffee, is independent of the requirements imposed by the Automobile Insurance Cost Recovery Act’s verbal threshold. The Court in Jablonowska v. Suther, determined that the New Jersey Legislature provided no indication in drafting AICRA that it intended to superimpose the permanent injury requirement on Portee claims that happen to involve the use of a motor vehicle. Accordingly, when asserting a claim for negligent infliction of emotional distress in motor vehicle cases, plaintiffs will not have to submit objective medical evidence of a permanent psychological injury. Nor will they have to file a certification of permanency from a physician.

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.