NJ Supreme Court Clears Way For Automobile Accident Survivors to Sue For Emotional Distress
In New Jersey, the spouse and close relatives of a seriously or fatally injured person can, under certain circumstances, seek damages for negligent infliction of emotional distress, based upon the New Jersey Supreme Court’s decision in Portee v. Jaffee, 84 N.J. 8 (1980). Commonly known as a “Portee claim”, this cause of action allows individuals who witness the death or serious injury of a spouse, child, or other individual with a close familial relationship to sue for emotional injuries so long as the individual had a sensory, contemporaneous perception of the death or injury.
In motor vehicle accidents, however, such claims could be subject to the defense that the verbal threshold provision in the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-1.1 to -35, bars a plaintiff from suing for negligent infliction of emotional distress if no permanent bodily injury can be demonstrated.
In the recent decision of Jablonowska v. Suther, decided on June 10, 2008, the New Jersey Supreme Court determined that claims for emotional distress brought by motorists or passengers who suffered emotional distress after witnessing a family member die or sustain serious bodily injuries in a motor vehicle accident are exempt from AICRA’s verbal threshold requirement.
The plaintiff, Halina Jablonowska, was driving with her mother on Route 21 in Newark when their vehicle was struck from the rear by another vehicle. The impact sent Jablonowska’s vehicle into a concrete railing. Ms. Jablonowska temporarily lost consciousness, but awoke to the sounds of her mother moaning and crying for help. When she turned toward the passenger seat, Ms. Jablonowska saw her mother’s head slumped forward. Ms. Jablonowska’s mother died within minutes of the accident.
Following her mother’s death, Ms. Jablonowska claims to have experienced frequent crying episodes, chest pain, vomiting, dizziness, nightmares, flashbacks, decreased appetite and impairment to her memory and concentration. After starting psychotherapy, Ms. Jablonowska was diagnosed with post-traumatic stress disorder and depression.
In the ensuing litigation, Ms. Jablonowska also asserted, in addition to wrongful death and survivorship claims, a claim for negligent infliction of emotional distress. She based the emotional distress claim upon the theory that the adverse driver’s negligent operation of his motor vehicle caused her to experience the psychological trauma of witnessing her mother’s injuries and death at the accident scene, resulting in severe emotional and psychological injuries. While a jury awarded Ms. Jablonowska more than half a million dollars for her wrongful death and survivorship claims, the trial court dismissed her claim for negligent infliction of emotional distress because she failed to demonstrate a permanent emotional or physical injury sufficient to meet AICRA’s verbal threshold.
After the Appellate Division affirmed the trial court’s dismissal of her emotional distress claim, Ms. Jablonowska petitioned the New Jersey Supreme Court to hear her appeal. The sole issue before the Supreme Court was whether a Portee claim is subject to AICRA’s verbal threshold.
In a split 4-3 decision, the Supreme Court ruled that Portee claims are not subject to AICRA’s verbal threshold. The Court based its decision on its analysis of the Portee claim, which the Court noted had never required proof of a permanent physical injury, as well as the Court’s finding that neither the verbal threshold’s plain language nor its legislative history demonstrated an intent to impose the verbal threshold’s permanent bodily injury requirement on Portee claims.
The Jablonowska decision may represent a significant departure from New Jersey’s efforts to lower insurance costs by limiting the ability of Plaintiffs to sue for non-physical injuries. The effect of the Jablonowska decision will likely have an impact on defense and indemnification costs as Plaintiffs may be enticed to gamble on the possibility of a substantial jury verdict. Although it is likely that the requirements of a close familial relationship and the necessity of witnessing serious injury or death needed to sustain a Portee claim could limit the number of such cases, automobile insurance carriers should appreciate the impact emotional damages could produce on the potential exposure.
If you are a claims professional, please do not hesitate to contact Golden, Rothschild, Spagnola, Lundell, Levitt & Boylan, P.C. We would be glad to further discuss this significant decision with you.
Daniel B. McMeen is an associate of GRSLL&B in the firm’s GENERAL LIABILITY GROUP. He practices in the areas of Personal Injury, Premises Liability, and Employment Discrimination Defense.
|
