Defense Digest

Conflicting Decisions In New Jersey As To Whether A Comparative Analysis Is Necessary When A Plaintiff Does Not Claim An Aggravation Of Pre-Existing Injuries

Just when you thought it was safe to buy car insurance in the state of New Jersey, the Appellate Division has recently reached two opposing conclusions with respect to the applicability of the holding in Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993), which required a comparative analysis of injuries being alleged by a plaintiff whenever that plaintiff had a previous injury to that same body part. A 2004 Appellate Division decision went so far as to require a comparative analysis under Polk, regardless of whether aggravation of a prior injury is being alleged or not. See, Bennett v. Lugo, 368 N.J. Super. 466 (App. Div.), certif. denied, 180 N.J. 457 (2004). Although an Appellate Division panel in Ostasz v. Howard, 357 N.J. Super. 65, 67 (App. Div. 2003), previously found that Polk remains viable after the passage of the 1998 Automobile Insurance Cost Reduction Act (hereafter "AICRA"), N.J.S.A. 39:6A-1.1 to -35, a developing controversy surrounding this finding has begun in the wake of the Supreme Court's recent elimination of the serious impact test, the second prong requirement of Oswin v. Shaw, 129 N.J. 290, 318. See, DiProspero v. Penn, 183 N.J. 477, 506 (2005); see also, Serrano v. Serrano, 183 N.J. 508, 517-18 (2005).  As a result, the fight has begun as to whether the elimination of Oswin's second prong undercuts most, if not all, of Polk's justification to connect causally a plaintiff's complaints of serious impact to the subject accident rather than to prior accidents or conditions. Polk, supra, 268 N.J. Super. at 575-76.

Neither DiProspero nor Serrano mentioned Polk, or the impact their decisions to eliminate the serious impact test from the verbal threshold requirement would have on the comparative analysis requirement. However, on October 20, 2005, an Appellate Division panel consisting of three judges disagreed with the Ostasz conclusion "that the comparative analysis requirement [of] Polk . . . survived AICRA." Davidson v. Slater, 381 N.J. Super. 22 (App. Div. 2005). The panel acknowledged that when "aggravation of preexisting conditions" is alleged, "some comparative analysis would be necessary to prove the aggravation, at the least at the time of a jury trial." But, to the extent that other recent cases have found that a Polk analysis is required, regardless of "whether aggravation of prior injury is alleged or not," the Davidson Court clearly disagreed. The Davidson Court concluded that, in the wake of the Supreme Court's decisions in DiProspero and Serrano, "it is doubtful whether Polk and its progeny continue to be viable in the context of a verbal threshold summary judgment motion. In essence, the Davidson Court found that the requirements of Polk are an element of causation which "engrafts an additional element upon this causation aspect of the verbal threshold standard." Therefore, since the Supreme Court held that the "serious impact" test did not carry over following the creation of AICRA, since it was specifically excluded from the statute itself, Davidson found that the Polk comparative analysis, which is not defined by or incorporated into any provision of AICRA, is also no longer tenable, unless a plaintiff specifically claims an aggravation of a previous injury through her pleadings or discovery.

In making its decision, the Davidson panel specifically disagreed with the holding of Lucky v. Holland, 380 N.J. Super. 566 (App. Div. 2005), a case decided just eight days prior to Davidson. In Lucky, a separate three judge Appellate Division panel reversed a dismissal of a plaintiff's complaint after finding that she had met the comparative analysis requirements outlined in Polk. As such, Lucky, another post-AICRA case, impliedly recognizes the Polk analysis and its "continued viability in the context of verbal threshold summary judgment motions."

Most recently, a third Appellate Division panel failed to fully agree or disagree with the holding in Davidson. In Hardison v. King, 381 N.J. Super. 129, 134 (App. Div. 2005), decided on November 2, 2005, the court had to determine whether a plaintiff's claim that the permanent injuries she suffered were a result of her last automobile accident, due to the fact that she alleged her prior injuries were completely healed and asymptomatic before that most recent accident occurred. Therefore, the court was not dealing with the plaintiff's claims of aggravation of a previous injury or condition. Regardless, the Hardison Court did not agree with the proposition proffered by the Davidson Court that, after AICRA, DiProspero and Serrano, comparative evidence would never be required in a non-aggravation case. Instead, the Hardison Court found that the need for the plaintiff to oppose summary judgment with comparative evidence when aggravation is not being claimed should not depend on any automatic application of Polk. Rather, this panel determined that "the necessity for comparative evidence should depend upon whether the factual construct presented by the moving papers calls into question whether any reasonable jury could find that plaintiff incurred a permanent injury resulting from the subject automobile accident."

Clearly, the recent Appellate Division decisions in Davidson, Lucky, and Hardison have increased uncertainty in the practice of automobile liability defense. Although there is no case pending before the Supreme Court at the time this article was written, it seems clear that the high court will have no choice but to resolve this issue in the near future.

*Chris is an associate in our Roseland, NJ office. He can be reached at (973) 618-4110 or cgonnella@mdwcg.com.