·5 min read
The Insurance Box You Checked Decides Whether You Can Sue
New Jersey's limitation on lawsuit option limits what you can recover after a car accident. Here is how the verbal threshold works and what gets you past it.
Rudolph Novak, Esq.
New Jersey injury attorney
Somewhere in your auto policy there is a choice you probably made in about four seconds. It is called the limitation on lawsuit option, and most people in New Jersey pick it because it costs less. Almost nobody understands what they gave up.
Here is what it does. If you selected the limitation on lawsuit option, you cannot sue the other driver for pain and suffering unless your injury falls into one of six categories set by statute. Your medical bills and lost wages are handled separately. This limit applies only to the human cost, the part of the claim that covers what the injury actually did to your life.
Lawyers call it the verbal threshold. The statute is N.J.S.A. 39:6A-8(a).
The six categories
You can pursue a claim for pain and suffering if your injury is:
- Death
- Dismemberment
- Significant disfigurement or significant scarring
- A displaced fracture
- Loss of a fetus
- A permanent injury
The first five are usually obvious. The sixth is where almost every case is won or lost.
What "permanent" actually means
The statute defines it narrowly. A body part or organ has sustained a permanent injury when it has not healed to function normally and will not heal to function normally, even with further treatment.
Read that again, because two things in it matter.
It does not say you have to be disabled. It does not say you have to be in pain forever. It says the body part will not go back to working the way it did. A shoulder that will never rotate the way it used to qualifies. A back that hurts when it rains, with nothing objective behind it, usually does not.
And it says the injury must be established by objective clinical evidence. Your word that it still hurts is not enough. Neither is a doctor writing down that you reported pain. There has to be something a machine or an examination can find.
The certification nobody tells you about
If you file suit under the verbal threshold, you have to serve a physician certification within 60 days after the defense files its answer. A licensed treating physician or a board certified physician has to certify, under penalty of perjury, that you sustained a qualifying injury, and it has to be based on objective clinical evidence. A court can grant one more 60 day extension for good cause.
Miss it and the case can go away.
Why this matters in the first week, not the last
The evidence that gets you past the threshold is created early. It comes from imaging, from a physical examination that documents range of motion, from a treating physician who writes down findings instead of complaints. If you wait six weeks to see anyone, then stop treating after four visits because you are busy, the record simply will not support the claim later. Not because you were not hurt. Because nobody wrote it down.
Check your declarations page
Pull out your policy and look for the words "limitation on lawsuit" or "no limitation on lawsuit." If you chose no limitation on lawsuit, the threshold does not apply to you at all. You pay more for that. Many people would pay it if anyone had explained the trade.
If you have already been in an accident, that choice is locked in. But you should know which one you made, because it changes what your case is.
If you were hurt in a crash in New Jersey and you are not sure where you stand, I am happy to look at it with you. Consultations are by phone or appointment.
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