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Defense Digest

In a Clash Between Public Policy and Statutory Interpretation, the Appellate Division Rules the Negligence Claim of an Allegedly Intoxicated Motorist Is Not Barred

Defense Digest, Vol. 29, No. 3, September 2023

September 1, 2023

by Brian T. Byrne

Key Points: 

  • In assessing the applicability of a defense to a negligence claim on the grounds that the plaintiff was intoxicated, the dispositive issue is whether the plaintiff was adjudicated guilty of DWI. 
  • A recent New Jersey Appellate Division decision creates a bright-line test and avoids the need for courts to resolve competing contentions as to whether a plaintiff was legally intoxicated. 
  • In a case where there is an indication that the plaintiff may have been driving under the influence, a search of the municipal court records should be conducted to reveal whether the plaintiff was adjudicated guilty of DWI. 

There is clearly a strong public policy against driving while intoxicated (DWI) in New Jersey. Despite this, a recent Appellate Division decision brought to the forefront the issue of whether a motorist who was allegedly intoxicated at the time of the accident could be precluded from bringing a negligence claim despite not being adjudicated guilty of DWI. 

N.J.S.A. 39:6A-4.5(b) states: “[a]ny person who is convicted of, or pleads guilty to, operating a motor vehicle in violation of [N.J.S.A.] 39:4-50, [N.J.S.A. 39:4-50.4a],[1] or a similar statute from any other jurisdiction, 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.”

In the recently published case of Castano v. Augustine, 291 A.3d 295 (N.J. Super. App. Div. 2023), the plaintiff was operating his motorcycle after having been drinking at three different bars. The plaintiff alleged that the defendants’ tractor trailer exited a convenience store onto the roadway, causing him to strike the truck’s bumper and sustain injuries. At times during his deposition testimony, the plaintiff admitted to being “drunk” at the time of the accident. At other times, he equivocated that he only had alcohol in his system. He did admit to having been drinking approximately 20 minutes before the crash. The police responded to the scene of the accident, but no summonses were issued to the plaintiff for any motor vehicle offenses, including DWI. Blood was drawn from the plaintiff at the hospital, and the defendants’ expert extrapolated that the plaintiff had a blood alcohol concentration (BAC) that was well in excess of the legal limit of .08 at the time of the accident. 

The defendants moved for summary judgment, arguing that the plaintiff’s negligence claim was barred because he was legally intoxicated at the time of the accident. The plaintiff contended that there was a genuine issue of material fact as to whether he was legally intoxicated at the time of the accident. Moreover, the plaintiff claimed that, since he had not been adjudicated guilty of DWI, his claim was not barred. The Law Division judge denied the motion for summary judgment and found that the plaintiff’s intoxication was a material issue of fact. 

The Appellate Division granted the defendants’ leave to appeal the order denying the motion for summary judgment. On appeal, the defendants argued that the trial court had misapplied the law, mistakenly concluding that there was a dispute as to plaintiff’s BAC level. The Appellate Division affirmed the motion judge’s ruling, finding that the statutory language was plain and unambiguous and required a conviction or guilty plea to DWI to bar a negligence claim. While the Appellate Division accepted the premise that New Jersey had a strong public policy against drunk driving, it held that the legislature chose to limit the “draconian measure” of barring a claim for personal injury only to those litigants who had actually been adjudicated guilty of DWI. 

The Appellate Division also noted that, while the parties had competing contentions as to whether the plaintiff’s BAC was in excess of the legal limit, by denying a cause of action only to those who had been adjudicated guilty of DWI, the legislature avoided the need for courts to resolve disputed facts as to whether a plaintiff was actually legally intoxicated. The court reasoned that applying the plain language of the statute would permit the early dismissal of motor vehicle accident claims that the legislature had found to have no cause of action. 

The Appellate Division’s decision creates a bright-line rule for whether a plaintiff’s negligence claim will be barred for driving while under the influence at the time of the alleged accident. By requiring that the plaintiff be adjudicated guilty of DWI in order for the negligence claim to be precluded, the court’s decision narrows a potential defense for an auto liability case. This decision also simplifies the issue and eliminates the need for courts to resolve competing arguments as to whether a plaintiff was actually under the influence at the time of the accident. A simple review of the municipal court records will reveal whether the plaintiff was adjudicated guilty and whether the statutory bar to a negligence claim can be asserted by the defendant. 

*Brian is an associate in our Roseland, New Jersey, office. He can be reached at 973.618.4142 or BTByrne@mdwcg.com.

 

 

Defense Digest, Vol. 29, No. 3, September 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

Ohio Supreme Court Holds That a Binding Appraisal Award May Not Be Set Aside Absent Specific Evidence of Manifest Mistake or Fraud

On July 23, 2026, the Ohio Supreme Court issued a rare opinion on the binding effect of an appraisal award in a property insurance policy.  The Court in One Church held: A binding appraisal award will not be set aside unless an error is so palpably wrong that it undermines the intent of the agreement, such as corruption or gross mistake, not a mere error of judgment—To plead a claim of mistake with particularity as required by Civ.R. 9(B), facts alleged in a complaint must constitute the elements of mistake—Allegation that additional, hidden damage was discovered after appraisal award failed to state a claim of mistake that could justify setting aside binding appraisal.  The case arose out of a claim brought by One Church against its insurer, Brotherhood Mutual Insurance Company for roof damage from a storm. Pursuant to the terms of the insurance policy, the parties agreed to submit the matter to appraisal. The two appraisers inspected the building, and both appraisers agreed that the damages were $313,271.98. The insurer paid the agreed appraised amount.  Thereafter, the insured submitted a claim for an additional $206,663.09 in damages. The insured argued that these additional damages were not discovered until after the repairs began, and that they should be permitted to submit an additional claim, even though there had already been a binding appraisal of damages. The insurer refused to pay the additional damages, and the insured sued for breach of contract and bad faith.  In the trial court, the insurer moved to dismiss for failure to state a claim, arguing that the binding appraisal award barred any further claims. The insured took the position that additional hidden damages could not be discovered until after the repairs began, and therefore there was a mutual mistake. The trial court dismissed the case on the insurer’s motion, because there was no “evidence of fraud, misfeasance, or mistake”. The Court of Appeals agreed that appraisal awards are generally binding, but noted that an appraisal award can be set aside for fraud or manifest mistake. The Court of Appeals reversed and remanded the case to the trial court, finding that the insured had pled mistake with sufficient particularity. The insurer appealed to the Ohio Supreme Court. On appeal, the Ohio Supreme Court reversed the Court of Appeals, and reinstated the trial court decision dismissing the case for failure to state a claim upon which relief can be granted. The Supreme Court found that since the insured had already demanded appraisal, and the appraisal award was binding, “something more than error of judgement, such as corruption in the arbitrator, or gross mistake” must be pled with particularity, and proven for the insured to override the appraisal award. Since the complaint did not allege fraud or manifest mistake with sufficient particularity, something more than a mere error of judgment, the complaint was insufficient to state a claim.  The complaint in this case did not challenge the appraisal award. It pled that additional damages were discovered that were not apparent when the appraisal was done. It did not specify “who discovered the damages, how they were discovered, where they were found, why they were previously hidden, or why they rise to the level of a manifest mistake that the “appraiser would have corrected...had it been called to his attention”. Id at ¶22 citing Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970). Cases deciding the effect of appraisal awards are unusual. The Ohio Supreme Court’s decision in One Church relies primarily on 19th century case law for its conclusion. This emphasizes the fact that there is minimal case law deciding the effect of binding appraisal clauses in property insurance policies, and makes this case all the more significant. A lengthy dissent was written by Justice Fisher, who would have affirmed the Court of Appeals decision reversing and remanding the case for a decision on the merits. Of course, the decision works both ways, and an insurer dissatisfied with a binding appraisal award will likewise be without further recourse absent evidence of corruption, fraud, misfeasance, or manifest mistake, which must be pled with particularity. To constitute manifest mistake, “the mistake must be of such character that the arbitrator or appraiser would have corrected it had it been called to his attention.”  Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970).  The majority opinion does not specifically identify what would have been sufficient to plead mistake with particularity, or if the insured could have amended the complaint to overcome the deficiencies. The dissent argues that this was not really a case alleging mistake, but rather a question of contract interpretation. The insured did not challenge the appraisal, but argued that the hidden damage was not part of the appraisal, and the appraisal only covered the known damages.  However, this argument did not carry the day with the majority.  *Thomas F. Glassman, a shareholder in Marshall Dennehey’s Cincinnati office, filed a brief in the Ohio Supreme Court on behalf of the Ohio Association of Civil Trial Attorneys, in support of the insurer’s position.