The State of New Jersey adopted a comprehensive system of automobile insurance statutes in 1972 to provide that “persons injured in motor vehicle accidents are compensated promptly” and to insure that there are “financially responsible” persons available to meet those claims. Craig & Pomeroy, New Jersey Auto Insurance Law, Gann. The triple pillars of the system are the Compulsory Insurance Law (which requires liability insurance), the No Fault Act (which requires personal injury protection benefits), and the Uninsured Motorist Act (which requires uninsured and underinsured motorist coverage).

Every year since 1992, I have written an Automobile Injury Supplement for the New Jersey Law Journal entitled “A Look at No Fault.” The primary purpose of this supplement is to review every case, rule, regulation and statute dealing with the verbal threshold, PIP benefits and UM/UIM coverage. In addition, I review other cases that deal with “automobile injuries.”

Since 1988, there have been over 120 published cases that deal with some aspect of the verbal threshold. These cases are listed in chronological order by subject matter in the Verbal Threshold Citator included in this supplement.

This year, there were no new cases dealing with the verbal threshold. There were two cases dealing with UM/UIM benefits, Krzykalski (apportionment of fault) and Ferrante (notice to UIM carrier), and one case dealing with PIP benefits, State Farm/Hereford (in-person arbitration).

In addition, I have reviewed three cases that are relevant to “automobile injuries”: Rice (pedestrian crossings), Auttika Taing (deployment of airbags) and Abdurraheem (correlation between property damage and personal injuries).

Finally, I have prepared a separate article dealing with Evidence Rule 703: “The Admissibility of the Reports of Non-Testifying Experts.”

Underinsured Motorist Coverage:  Notice to UIM Carrier

The New Jersey insurance statutes require insurance carriers to offer motor vehicle policies that include, at the option of the insured, underinsured motorist coverage (UIM) up to the liability limits of the policy but not to exceed $250/500,000 split limits or $500,000 single limit. A motor vehicle is “underinsured” when the liability limits of the defendant (the person against whom the claim is made) are less than the UIM limits of the plaintiff (the person who brings the claim).

While the obligation to provide UIM coverage is statutory, the relationship between the UIM carrier and the policyholder is contractual. The standard policy requires the policyholder to notify the UIM carrier promptly if any “legal papers” are filed against the tortfeasor, and to notify the UIM carrier in writing of any “tentative settlement” with the tortfeasor. The purpose of these notices is to preserve the subrogation rights of the UIM carrier against the tortfeasor (which would be extinguished if the claimant executed a general release to the tortfeasor).

The courts have long labored to protect the rights of both the injured policyholder and the UIM carrier against the insurance coverage and personal assets of the tortfeasor. First, in Longworth v. Van Houten, 223 N.J. Super. 174 (App. Div. 1988), the court noted that an insured has an initial obligation to pursue a liability claim against the tortfeasor before proceeding with a UIM claim against his own carrier. Once a UIM claim is made, the UIM carrier has the right to pursue a subrogation action against any personal assets of the tortfeasor.

In order to protect the subrogation rights of the UIM carrier, the claimant has an obligation to advise the UIM carrier of “an acceptable settlement offer” and to request the carrier's consent to settle. The UIM carrier has two options: (1) Waive its subrogation rights and consent to the settlement, or (2) pay the amount of the settlement offer to the claimant in exchange for an assignment of the claimant's right of subrogation against the tortfeasor.

Next, in Rutgers Casualty v. Vassas, 139 N.J. 183 (1995), the court identified three situations when the insured must notify the UIM carrier: (1) when the insured determines that the liability coverage of the tortfeasor is insufficient; (2) when the insured takes legal action against the tortfeasor; and (3) when the insured receives a settlement offer. The court “explicitly ratified” Longworth and held that, after receiving notice of a settlement offer, the  UIM carrier could either consent to the settlement (thereby waiving its rights to subrogation) or pay the award (in exchange for the subrogation for the insured's rights against the tortfeasor).

Finally, in Zirger v. General Accident, 144 N.J. 327 (1996), the court emphasized the duty of insureds to notify their UIM carrier whenever they institute suit against the tortfeasor. The court stated that “there is no flexibility in an insured's obligation to communicate the lawsuit to the carrier.” Once the UIM carrier has been placed on notice of the lawsuit, they have a right to intervene and will be bound by the result, whether they intervene or not. (The trial court will determine the extent that the UIM carrier will participate in the trial).

In Ferrante v. New Jersey Manufacturers, 232 N.J. 460 (2018), the court considered whether the plaintiff's failure to notify his UIM carrier that he had filed suit and litigated his liability claim against a tortfeasor would extinguish his UIM claim. The plaintiff, Robert Ferrante, was injured in an automobile accident. He filed a negligence lawsuit against the tortfeasor (who had a policy limit of $100,000); participated in mandatory arbitration (which set damages at $90,000); rejected the arbitration award and requested a trial de novo; rejected a $50,000 settlement offer; entered into a high-low agreement between $25 – $100,000; participated in a jury trial (which awarded damages of $200,000); and entered a judgment for $100,000 (the “high” of the high-low agreement and the tortfeasor's policy limit).

The plaintiff, Ferrante, was insured by the defendant, NJM, with UIM limits of $300,000. He never notified NJM of any of the elements of the liability claim against the tortfeasor. However, after the entry of judgment, he filed a UIM claim against NJM. During pretrial discovery, NJM learned for the first time of the plaintiff's “past dealings” with the tortfeasor.

NJM filed a motion to dismiss the complaint because the plaintiff failed to provide any notification of the underlying litigation against the tortfeasor. The trial court granted the motion; however, the Appellate Division reversed (with dissent) and remanded to determine if NJM sustained any prejudice.

The Supreme Court reversed the Appellate Division and reinstated the order of the trial court dismissing the complaint. The court found that Ferrante “violated” his duty to inform NJM that he had initiated a lawsuit, received an arbitration award, entered into a high-low agreement and participated in a full jury trial.

Thus, Ferrante “improperly extinguished” NJM's right of subrogation. If properly notified, NJM could have paid the settlement offer to the insured and then tried the case “as if in the insured's shoes.” At a minimum, NJM could have intervened in the underlying negligence action and participated in the trial “to whatever extent the trial court allows.” Accordingly, Ferrante's action “vitiated” his ability to receive UIM benefits from NJM.

Commentary: While the result in this case is based upon a contractual and common law duty to inform, the Supreme Court emphasized “the importance of candor by insureds and the obligation to act in a forthright, open, and honest manner with their carriers throughout the entire process of their claim.”

NJM suggested that the plaintiff “strategically opted” not to send the notice. Ferrante admitted that the Longworth notice was “defective” but claims that the failure was due to “negligence,” not the intent to “deceive.” The court held that Ferrante's “state of mind” was not relevant and simply concluded that “we seek to avoid rewarding insureds for omitting key details in a UIM claim.”

There are no statistics available to determine the number of UIM claims; however, from my own experience, about 30 percent of all automobile liability cases are accompanied by a UIM claim. That's a lot of cases. In addition, most UIM claims are for higher limits of coverage: $100,000 to $500,000. That's a lot of money.

There are no simple UIM cases. At the outset, the plaintiff's lawyer must determine the existence of all UIM policies that may be “available” to the plaintiff including the personal automobile and personal catastrophe umbrella covering the plaintiff, the host vehicle and in some cases, the plaintiff's resident relatives. Then, the plaintiff's lawyer must determine the existence of all liability policies including any personal automobile and personal catastrophe umbrellas that provide coverage to the defendant, the owner of the host vehicle and, in some cases, the defendant's resident relatives.

In some cases, the defendant's liability adjuster will advise the plaintiff's lawyer as to the amount of the policy limit. If not, the plaintiff cannot get the information until suit has been filed and the plaintiff serves a Demand for Insurance Information.

The lesson learned from Ferrante is that the plaintiff must notify the UIM carrier as soon as there is any indication that the tortfeasor may be underinsured, whether suit has been instituted or not. If suit has already been instituted, then the plaintiff must immediately send a copy of the complaint to the UIM carrier. If suit has not already been instituted, then the plaintiff must send a copy of the complaint to the UIM carrier as soon as it has been filed.

As the Supreme Court said in Ferrante, “there is no flexibility in an insured's obligation to communicate the lawsuit to the carrier.” The failure to do so will interfere with the UIM carrier's right of subrogation and will “vitiate” the insured's ability to seek UIM benefits.

There are some differences of opinion as to how to serve notice upon the UIM carrier. In Zirger, the court suggests that the plaintiff serve a Notice of Intervention. The UIM carrier can then elect to intervene in the underlying litigation or not. Some attorneys prefer to name the UIM carrier as a defendant in the same complaint that is filed against the tortfeasor. This procedure will force the UIM carrier to file an answer.

UM Coverage:  Apportionment of Fault

The Joint Tortfeasors Contribution Law provides for the right of contribution between “joint tortfeasors”—two or more persons who are “jointly or severally” liable for the same injury to a person. The law states that any one of the joint tortfeasors who pays a judgment to the injured party shall be entitled to recover contribution from the other joint tortfeasors “for the excess so paid over his pro rata share.” N.J.S.A. 2A:53A.

The allocation of damages among joint tortfeasors is determined by the Comparative Negligence Act. N.J.S.A. 2A:15-5. The act provides that the trier of fact shall determine “each party's negligence” so that the total negligence of “all of the parties to the suit” (including the plaintiff and all of the defendants) shall be 100 percent.

Ordinarily, a plaintiff will recover only the percentage of damages allocated to each defendant; however, the plaintiff can recover the full amount of damages from any defendant who is found to be 60 percent or more at fault. If so, that defendant may seek “contribution” from the other joint tortfeasors “for the excess so paid over his pro rata share.”

In Krzykalski v. Tindall, 232 N.J. 525 (2018), the Supreme Court considered whether a jury should apportion fault between a named party defendant and a “known but unidentified defendant” (the fictitious person, John Doe). The plaintiff, Mark Krzykalski, was driving northbound on Route 130 in Florence Township when he slowed for an emergency vehicle. A vehicle driven by a “known but unidentified” driver (the fictitious John Doe) passed him on the right and crossed in front of him to make a left turn. Krzykalski stopped his car but was struck in the rear by a vehicle operated by David Tindall.

Krzykalski filed suit against Tindall and John Doe alleging that they were joint tortfeasors. Tindall's insurance company filed an answer to the complaint; however, no one filed an answer for John Doe (a known but unidentified defendant).

The plaintiff filed a motion to prevent the jury from allocating negligence between Tindall and John Doe because an unidentified person who is not represented by counsel is not a “true party.” The trial court denied the motion and the jury allocated the negligence at 3 percent to Tindall and 97 percent to John Doe. The jury awarded damages of $107,890 and the court entered judgment against Tindall for $3,236, only 3 percent of the verdict.

The plaintiff appealed. He argued that the trial judge “erred in allowing the jury to apportion liability between defendant (Tindall) and the fictitiously named John Doe.” The Appellate Division affirmed. The court held that “a fictitious party” is a “party” under the Comparative Negligence Act. Accordingly, the jury should be permitted to allocate fault between a known and identified defendant (Tindall) and a known but unidentified defendant (John Doe).

The Supreme Court affirmed. The court noted that, although John Doe was pleaded as a “fictitious party,” both Kryzkalski and Tindall acknowledged that he was the driver of the other car. Thus, his existence was “known” even though his identity was “unknown.”

In addition, in his answer, Tindall demanded an allocation of fault. Thus, plaintiff had “fair and timely” notice that Tindall would assert that the accident was caused by John Doe. The Supreme Court concluded that “the jury properly apportioned fault between the named party defendant Tindall and the John Doe defendant.”

Commentary: The Supreme Court reviewed the law relating to fictitious parties. A plaintiff may sue a person or entity as “John Doe” if the plaintiff knows that a cause of action exists but does not know the identity of the defendant. The plaintiff must describe the defendant with appropriate information for identification and must amend the complaint to state the defendant's true name prior to judgment. A final judgment cannot be entered against a fictitious person; however, the statute of limitations is suspended until the actual identity of the defendant is discovered.

The court noted that, in some cases, the identity of the defendant will never be known, such as a hit-and-run or phantom driver. In those cases, an injured party may make a claim for uninsured motorist coverage under a personal auto policy, a policy covering the host vehicle or, in some cases, a family policy.

In this case, the plaintiff filed a UM claim under his personal automobile insurance policy. His carrier offered to settle the UM claim for the policy limits but the plaintiff rejected the offer.

I do not know why the plaintiff rejected the offer of the UM carrier to settle for the policy limits. The Appellate Division was concerned that a plaintiff could secure a “windfall” by obtaining the full amount of damages under the liability policy of the identified defendant and, later, seek recovery from his UM carrier. Perhaps, this was the strategy of the plaintiff's lawyer in Kryzkalski.

The Appellate Division noted that the allocation of fault by the jury “prevents plaintiff from strategically waiting to proceed against UM insurance, allocates fault based on actual negligence of the various drivers, and avoids double recovery by plaintiffs.”

I note that the Supreme Court has endorsed a procedure that permits a plaintiff to submit a Notice of Intervention to the UIM carrier. Once the UIM carrier has been placed on notice, the carrier will be bound by the jury verdict, whether it intervenes or not. Zirger v. General Accident, 144 N.J. 327 (1996). If the plaintiff had followed this procedure in this case, he would have recovered the full jury verdict, $3,236 from Tindall and the balance from the UM carrier (up to the UM policy limit).

Pedestrian Crossings

The New Jersey motor vehicle statutes provide two rules with respect to pedestrian crossings. First, if traffic is directed at an intersection by a police officer or traffic signal, then a pedestrian must cross the highway within a crosswalk. N.J.S.A. 39:4-33. On the other hand, if traffic is not controlled by a police officer or a traffic signal, then a pedestrian must cross the highway within a crosswalk or “in the absence of a crosswalk … at right angles to the roadway.”  N.J.S.A. 39:4-34. Thus, in pedestrian crossing accidents in which there are no police officers or traffic signals, the “critical determinant” is the presence of a crosswalk.

In Rice v. Miller, 455 N.J. Super. 90 (App. Div. 2018), the court considered whether there was a crosswalk “sufficiently close and accessible” to the spot where the plaintiff attempted to cross a state highway so as to require him to use it, rather than cross the highway at a right angle. The plaintiff, Brian Rice was struck by an automobile when he attempted to cross State Highway 70 in Cherry Hill from a pub on the westbound side to a gas station on the eastbound side.

The plaintiff testified that he walked toward Greentree Road, which crosses Route 70 at an intersection controlled by a traffic light and which has a pedestrian crosswalk. However, he felt that it was too dangerous to walk to Greentree Road because he would have had to cross two side streets that had no crosswalks. Instead, he decided to cross Route 70, an eight-lane state highway, at a right angle.

Rice indicated that he did not see any cars coming and that the car that struck him did not have any headlights on. The defendant testified that her headlights were on and that the plaintiff suddenly appeared in front of her car.

The trial judge charged the jury with respect to the duty of a pedestrian under both statutes—controlled and uncontrolled intersections. The jury found the plaintiff 75 percent at fault, and the court entered a final judgment for the defendant under the Comparative Negligence Act.

On appeal, the plaintiff contended that he was not required to use the crosswalk at Greentree Road and that he was lawfully crossing Route 70 at a right angle. Thus, the trial judge should have directed the jury that the crossing was legal under N.J.S.A. 39:4-34. Likewise, the trial judge should not have charged the jury with respect to a pedestrian's duty to use a crosswalk under N.J.S.A. 39:4-33.

The Appellate Division disagreed with the plaintiff and affirmed. The court noted that there were fact issues for the jury to decide with respect to the “closeness and accessibility” of the crosswalk: How far away was the crosswalk; would it have been more dangerous for the plaintiff to walk along Greentree Road to the intersection; was the crosswalk “readily accessible” under the lighting and traffic condition. Under the circumstances, the court held that the trial judge “wisely” charged the jury with both traffic statutes.

Commentary: While the legal issues discussed by the court deal with the location of the crosswalk, there are other facts in the case which might have impressed the jury more. The plaintiff testified that the headlights on the defendant's car were not on at the time of the accident. Nonetheless, the plaintiff never mentioned the headlights in answers to interrogatories or depositions. It seems to me that this “oversight” would be sufficient to negatively influence the jury's “credibility and factual assessments” of the plaintiff's testimony.

While I do not disagree with the determination of the Appellate Division that the trial court properly charged both statutes dealing with pedestrian crossings, I am disturbed by two evidentiary rulings that could have affected the outcome of the case. First, the trial court permitted a police officer, who did not witness the accident, to render a lay opinion, based upon a mathematical formula, that the defendant was driving less than the speed limit, even though the officer was not designated as an expert witness. The Appellate Division stated clearly that the allowance of the opinion testimony of the officer was “erroneous”; however, the court found that the testimony was “harmless” because defense counsel did not “mention, let alone emphasize,” the speed calculations in his summation.

Second, the court permitted the police officer to testify as to statements from the defendant and a passenger that the headlights were on. The Appellate Division noted that the statements were hearsay and that it was improper for a police officer to be used as “a conduct of hearsay by other declarants.” Nonetheless, the Appellate Division held again that the error was “harmless” because the jurors were provided “with repetitive accounts of those declarants' factual narratives.”

The Appellate Division noted that the “obvious purpose” of the Rules of Evidence is “to promote fair advocacy.” In my opinion, the improper admission of the testimony from a police officer (a person of authority) that the defendant was driving within the speed limit and that a passenger said that the defendant's headlights were on, hold the clear potential to influence the jury—whether or not the testimony was mentioned by defense counsel in summation or was cumulative.

The Appellate Division suggested that “considering the trial record as a whole, the evidential error was not clearly capable of producing an unjust result.” In my opinion, the trial record was tainted by improper testimony and hearsay. The case should have been reversed and remanded for a new trial.

PIP Reimbursement: In-Person Arbitration

N.J.S.A. 39:6A-9.1 provides that any insurer who pays PIP benefits as a result of an accident occurring within this state shall have the right to recover the amount of payments from any tortfeasor who was not required to maintain PIP coverage (other than for pedestrians) or although required to maintain such coverage did not do so. In other words, a PIP carrier has a right of reimbursement against two types of tortfeasors who do not maintain PIP: (1) the owners and operators of non-automobiles (commonly referred to as commercial vehicles) who are not required to provide PIP benefits; or (2) the owners and operators of uninsured automobiles who have not purchased PIP coverage.

If the tortfeasor is insured, the PIP carrier's right of recovery shall be made against the insurer of the tortfeasor and shall be determined by arbitration. The insurer's right of recovery shall be subject to the claims of the injured party and shall be paid only after satisfaction of that claim up to the limits of the insured tortfeasor's policy limits.

New Jersey has a specific statute governing the arbitration of claims for PIP benefits. Under that statute, the Commissioner of Insurance has promulgated rules and regulations with respect to the conduct of dispute resolution proceedings. However, the Commissioner did not include PIP recovery within the scope of the regulation.

In State Farm v. Hereford, 454 N.J. Super. 1 (App. Div. 2018), the court considered the procedure for the arbitration of claims for PIP recovery under N.J.S.A. 39:6A-9.1. The plaintiff, State Farm, paid PIP benefits to its insureds who were injured in a motor vehicle accident. State Farm filed suit for reimbursement against Hereford, the insurer of the tortfeasor. State Farm filed a motion to compel arbitration with Arbitration Forums, an organization with which they had a contract to arbitrate PIP claims. The trial court granted the motion.

It was the practice of Arbitration Forums to conduct “telephonic hearings” instead of in-person arbitration. Although not a party to the arbitration contract, Hereford filed a motion to compel Arbitration Forums to conduct “an in-person arbitration hearing at a physical location.” The trial court denied the motion and reasoned that “the parties would not be deprived of their due process rights by appearing telephonically.”

The Appellate Division affirmed. At the outset, the court noted that disputes relating to PIP recovery were not regulated by the No Fault rules or regulations. Instead, these disputes are governed by the New Jersey Uniform Arbitration Act, N.J.S.A. 2A-23B.

The Arbitration Act states that the arbitrator may conduct a proceeding in any manner that is appropriate “for a fair and expeditious deposition of the proceeding.” The act does not require the arbitrator to hold a hearing “in person” or at a “physical location.”

The court found that a telephonic hearing will afford the parties “the opportunity to be heard, to present evidence, cross-examine witnesses, and make arguments.” Accordingly, the court held that telephonic hearings are permissible under the Arbitration Act.

Commentary: The opinion in State Farm deals only with the arbitration of disputes for PIP recovery under N.J.S.A. 39:6A-9.1. For all other PIP disputes, the Department of Banking and Insurance has adopted regulations “concerning the payment of medical expenses and other benefits provided by the personal injury protection coverage in policies of automobile insurance.” Those procedures include “in-person” hearings where the parties or their representatives appear “in-person or telephonically before the DRP to present their cases.” N.J.A.C. 11:3-5.2.

Evidence:  Expert Testimony About Deployment of Airbags

As a general proposition, jurors may use their “common knowledge” to determine whether the conduct of the parties was reasonable. However, expert testimony is required when a matter at issue is so “esoteric” that jurors with “common judgment and experience” cannot form a valid judgment.

In Auttika Taing v. Braisted, 456 N.J. Super. 465 (Law Div. 2017), the court considered whether the defendant could question the plaintiff about the deployment of airbags. The defendant suggested that, since the air bags did not deploy, the impact between the vehicles was minor. The plaintiff argued the air bags were “complex instrumentalities” that are not within the common knowledge of an average juror and required expert testimony to understand their “mechanical intricacies.”

The plaintiff filed a motion in limine to bar the defendant from questioning the plaintiff “about whether or not the air bags deployed in his vehicle at any time during the course of the subject accident.” Judge Marczyk, in a written opinion supplementing a ruling at trial, noted that the activation of air bags is a “recurring issue” in automobile negligence cases. Sometimes, when air bags are deployed, the issue is raised by plaintiffs to demonstrate a serious impact. Sometimes, when air gabs are not deployed, it is used by defendants to suggest that the accident was relatively minor.

Nonetheless, the court noted that there are “too many variables” for a jury to understand why an air bag system did or did not activate. It is possible that an airbag may not deploy in a serious accident. Likewise, it is possible that an airbag might deploy in a minor accident.

Thus, the court concluded that an expert witness is needed to explain how an airbag system functions, the location of the sensors and the amount of force needed to trigger the airbag. Under the circumstances, the court held that, without expert testimony, the defendant cannot question the plaintiff with respect to the failure of the airbags to deploy.

Evidence: Correlation Between Property Damage and Severity of Injuries

It is typical in most automobile accident cases that the parties will look at the amount of property damage as evidence of the severity of the plaintiff's injuries. For example, if the property damage is minor, the defendant will argue that the severity of injuries must be slight. On the other hand, if the property damage is heavy, the plaintiff will argue that the injuries must be significant.

In the seminal case of Brenman v. Demello, 191 N.J. 18 (2017), the defendant attempted to admit photographs that showed that the plaintiff's vehicle sustained damages that were so minor that the plaintiff could not have sustained any serious or permanent personal injuries. In response, the plaintiff contended that the photographs should not be admitted unless the defendant provided an expert witness, a biomechanical engineer, who could testify about the relationship between property damage and personal injury.

The Supreme Court held that the testimony of a biomechanical expert is not required before photographs can be admitted to show a correlation between the property damage to a vehicle and the extent of injuries sustained by an occupant. Nonetheless, the court noted that “some bad accidents result in little injury, and some minor accidents result in serious injury.”

As a result of Brenman, the Supreme Court adopted Model Jury Charge (Civil) §5.34, Photographic Evidence in Motor Vehicle Accidents, which instructs the jury to weigh any photographs that show the condition of the vehicles after impact “as you deem appropriate taking into consideration all of the other evidence in the case.” The charge emphasizes that “in some accidents resulting in extensive vehicle damage, the occupants may suffer minor injuries or no injuries at all. In other accidents where there is no or little apparent vehicle damage, the occupants may suffer serious injuries.”

In Abdurraheem v. Koch, 456 N.J. Super. 496 (Law Div. 2018), the court confronted a different situation where the parties testified as to the amount of property damage; however, neither party produced any property damage photographs. The plaintiff testified that her vehicle did not sustain significant damage; however, the front bumper of defendant's vehicle was hanging off after the accident. The defendant testified that the impact was minor (like riding a bumper car at an amusement park) and that the bumper was merely bent downward.

Thus, the defendant argued that the incident was “trivial” and not capable of causing permanent injury. Conversely, the plaintiff argued that the impact was not minor and was sufficient to cause a permanent injury. In a reversal of roles from Brenman, the defendant (not the plaintiff) suggested that the Model Jury Charge should not be charged to the jury in the absence of property damage photographs.

Judge Marczyk, in a written opinion supplementing a ruling during trial, noted that the oral testimony of a witness describing the property damage to the vehicle was similar to a photograph depicting the same damage. In either case, it is the function of the jury “to weigh and balance the evidence and to evaluate the credibility of the witnesses.” Thus, the jury must decide whether the property damage was “minor, moderate or significant” and to correlate “the damages to the vehicles and the cause or extent of plaintiff's injuries.”

Under the circumstances, the court held that a Brenman charge should be given to the jury, even in the absence of photographs, with minor modification. The reference to “photographs” would be deleted from the Model Jury Charge and replaced with “testimony.”