By Eric G. Kahn, Esq. and Jeffrey A. Rizika, Esq

For trial attorneys handling automobile accident cases the date August 1, 2019 is extremely important.

That is the cutoff date to determine what rules apply to your case because of two laws that were enacted to correct the New Jersey Supreme Court’s decision in Haines v. Taft.

For all automobile accidents that occurred before August 1, 2019, an automobile practitioner must look to Public Law 2019, Chapter 244 that was signed by Governor Murphy on August 15, 2019.

For  all automobile accidents that occurred on or after August 1, 2019, we must look for the amendments contained within Public Law 2019, Chapter 245, because there are significant differences in how the unreimbursed medical bills are to be treated.

On March 26, 2019, the New Jersey Supreme Court decided Haines vs. Taft 237 N.J. 271 (2019). To say that the holding in Haines disrupted our motor vehicle practices is an understatement. The issue in Haines was whether a plaintiff who chose $15,000 in PIP coverages, instead of the default amount of $250,000, could recover medical bills in excess of $15,000 from a negligent tortfeasor.

               In Haines, neither plaintiff sustained  injuries that would satisfy the limitation on lawsuit threshold, so the only claims each was pursuing was for outstanding medical bills in excess of their elected $15,000 in PIP coverage. The plaintiffs maintained that their medical bills exceeding their elected PIP coverage constituted "economic loss" as that term was defined in N.J.S.A. 39:6a-2(k). The Supreme Court held that there was no clear intention on the part of the Legislature to allow fault-based lawsuits consisting solely of economic damage claims for medical expenses in excess of an elected lesser amount of PIP coverage. The Supreme Court ruled that interpreting N.J.S.A. 39:6a-2(k) to allow the admission of evidence of medical expenses that fall in between the insured's PIP policy limits and the presumptive PIP amount of $250,000.00 was contrary to the design of the No Fault Law to reduce court congestion and lower the costs of automobile insurance.

             In dissent, Justice Barry T. Albin said that N.J.S.A. 39:6a-12 was intended to prevent a double recovery of damages, but not to deny an automobile accident victim a just recovery of damages. He expressed concern that the Supreme Court’s ruling would have a catastrophic impact on low­income automobile accident victims seeking to recover their medical costs from the wrongdoers who caused their injuries.

             Following the Supreme Court's decision in Haines, NJAJ  swiftly mobilized in support of two bills primarily sponsored by Senator Nicholas P. Scutari. The first bill, S-2432, which is now Public Law 2019, Chapter 244, permitted a plaintiff injured in an automobile accident to recover, as part of the recovery of uncompensated economic loss, any unpaid medical expenses above the personal injury protection limits applicable to the injured party and $250,000. The bill made it clear that economic loss includes economic loss for uncompensated medical expenses, notwithstanding any prior interpretation of that definition in the Statute to the contrary. The bill amended N.J.S.A. 39:6A-12, and the changes apply to all cases where the accident occurred before August 1, 2019.

             The second  bill introduced  by Senator Scutari was S- 3963, which  amended N.J.S.A. 6A-12 and 6A-4.6 and took effect on August 1, 2019. It applies to all automobile accidents occurring on or after that date.

             The revision to the Statute permits a plaintiff injured in an automobile accident to recover, as part of the recovery of uncompensated economic loss, all unreimbursed medical expenses not covered by the personal injury protection limits applicable to the injured party and sustained by the injured party. Significantly, this amendment subjects all unreimbursed medical expenses in excess of the elected PIP limits to the automobile medical fee schedules. It also prohibits balance billing of any medical expenses claimed as damages and paid pursuant to the medical fee schedule. This amendment entirely supplanted the provisions of S-2432 for all automobile accidents occurring on or after August 1, 2019.

           Public Law 2019, Chapter 245, dramatically changed longstanding law by allowing the recovery of  any applicable deductibles and co-payments, nullifying the New Jersey Supreme Court's holding in Roig vs. Kelsey, 135 N.J. 500 (1994). In  addition, the law  allows  for  the  recovery of medical liens asserted by a  health insurance  company related  to the  treatment of injuries  sustained in the accident. Lastly, in any case in which the  recovery is for medical expenses only a prevailing claimant is entitled to  reasonable and necessary attorneys' fees incurred by the prevailing claimant in the collection of such medical expenses.

             Eric G. Kahn, Esq., is    the Managing Shareholder of Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins and a past president of the New Jersey Association for Justice. He can be reached at ekahn@lawjw.com or at 973-379-4200. Jeffrey A. Rizika, Esq. is , a partner in firm and t Co-Chair of the NJAJ Auto Committee. He can be reached at jrizika@lawjw.com or at 973-379-4200.