The main defense for liquor licensees against suits brought forth by drunk drivers was the 1997 anti-drunk driving amendment to N.J.S.A. 39:6A-4.5(b), which asserts that the driver of a motor vehicle who is convicted of or pleads guilty to driving while intoxicated in connection with an accident “shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of the accident.”  The enactment of N.J.S.A. 39:6A-4.5(b) led to the virtual immunity of liquor licensees from Dram Shop claims by drunk drivers; until now.

In the recent decision of Voss v. Tranquilino, et. al, A5431-08T1 (April 28, 2010), the New Jersey Appellate Division unanimously held that a drunk driving conviction under N.J.S.A 39:4-50(a) does not bar the intoxicated driver from filing a Dram Shop suit against the liquor establishment which served him the liquor.  This decision has the effect of making  liquor licensees liable to an entire new class of Plaintiffs, whom they believed were  previously precluded from bringing suit against them.

In Voss, the Plaintiff sustained bodily injury after the motorcycle he was riding collided with another vehicle.  Prior to operating the motorcycle, Plaintiff had been drinking alcohol at a local bar/restaurant in Toms River, New Jersey.  After the accident, the police administered a breath test on the Plaintiff.  It was determined that Plaintiff had a .19% breath alcohol concentration (BrAC); nearly two and one half times above the .08% legal limit.  Plaintiff was arrested and subsequently plead guilty to driving while intoxicated.

In his suit, Plaintiff argued that the bar/restaurant  negligently continued to serve him alcohol, despite his being visibly intoxicated.  Plaintiff claimed that the reason for his accident and subsequent injuries was his apparent state of intoxication, which was negligently caused by the bar/restaurant.  Plaintiff asserted that the bar/restaurant was not immune from liability under the Dram Shop Act; thus, his suit should not be barred.

In a lengthy opinion, the Court concurred with Plaintiff’s position.  The Court noted that, although a literal reading of the statute would suggest that all claims by an intoxicated driver are barred, they reached a contrary conclusion.  The Court found that N.J.S.A. 39:6A-4.5(b) does not bar a Dram Shop claim by the injured intoxicated driver, because (1) the purpose of the N.J.S.A. 39:6A-4.5(b) is to reduce automobile premiums and its scope should be limited to losses subject to coverage under Title 39; (2) barring a Dram Shop claim would unjustifiably constitute a repeal by implication of a portion of the Dram Shop Act; and (3) immunizing liquor licensees from liability in such circumstances would be inimical to New Jersey’s public policy of curbing drunk driving.

The Court noted that the original version of N.J.S.A. 39:6A-4.5(b) did initially contain a provision barring intoxicated drivers from asserting Dram Shop claims.  However, then Governor Tom Kean vetoed that provision and the statute passed without it.  The Court concluded that the legislature’s decision to strike this provision from the final version of the statute, as passed, clearly demonstrated that it did not intend to implicitly repeal Dram Shop claims by drunk drivers.

Overall, the Court concluded that Dram Shop claims by drunk drivers are not only encompassed by the plain terms of the Dram Shop Act, but that such claims were deliberately incorporated into the Dram Shop Act as part of the interrelated provisions to achieve fairness.  The Court felt that, while drivers who endanger highway safety by driving drunk should be penalized by losing their right to sue, the liquor licensees have the expertise and statutory obligation to avoid serving intoxicated patrons and setting them loose on New Jersey Highways.

While the Voss decision is the first by the Appellate Division to explicitly deprive a liquor licensee of immunity from a claim by an intoxicated driver, liquor licensees are not the first class of Defendants to see Plaintiffs overcome the general bar on claims by drunk drivers arising from their accidents.  In Camp v. Lummino, 352 N.J. Super. 414 (App. Div. 2002), the Court found that immunity did not apply in a host-liability case.  There, the Appellate Division permitted a common law claim by an underage drunk driver against the owner of a home where he had been drinking.

The Court’s decisions in Voss has effectively created an entire new class of Plaintiffs that can assert claims against liquor licensees.  The Court has essentially taken a clear and unambiguous statute and muddied it by injecting ambiguous legislative intent in its analysis.  It is likely that this matter will be appealed to the New Jersey Supreme Court.  In the meantime, as a consequence, insurers can expect a potential onslaught of new suits from Plaintiffs who previously did not have a viable cause of action against a liquor licensee.