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On March 26, the Supreme Court of New Jersey, in a 3-2 decision, reversed an Appellate Division decision which had held that a plaintiff's medical expenses, over and above those paid by his PIP option, were boardable and recoverable against a tortfeasor. 450 N.J. Super. 295 (App. Div. 2017). The Appellate Division decision made sense, right? Of course. Which is why this author, in a March 19, 2018, New Jersey Law Journal commentary, applauded the Appellate Division decision. So, does the Supreme Court majority decision reversing the well-reasoned Appellate Division make sense? Of course not. And the thorough, well-reasoned dissent of Justice Barry Albin, in support of the Appellate Division decision, makes perfect sense, correct? Of course. Haines v.Taft, ___  N.J. ___ (2019).

Joshua Haines, like many budget-minded consumers, had purchased the $15,000 PIP option. Because, as the result of an auto accident, his medical bills amounted to $43,000, he sought to recover the outstanding balance ($28,000) from the tortfeasor.

The statute at issue (N.J.S.A. 39:6A-12), which required plaintiff's PIP insurance company to pay the medical bills up to the amount of the option chosen by the injured plaintiff ($15,000, $50,000, $75,000, $150,000, or $250,000) makes the bills inadmissible (not boardable) and therefore could neither be considered by the jury nor awardable against the tortfeasor. However, the statute provided an exception; it did not preclude a recovery against a tortfeasor for an “uncompensated economic loss,” which is defined as ”including, but not limited to medical expenses.” N.J.S.A. 39: 6A-2(k).

Relying upon these statutes, the Appellate Division, not surprisingly, held that Haines'  $28,000 unpaid medical expenses constituted an “uncompensated economic loss” and therefore were boardable and recoverable from the tortfeasor. Incredibly, by a razor-thin majority, the Supreme Court held that the statute does not “allow fault-based suits consisting solely of economic damages for medical expenses in excess of an elected lesser amount ($15,000) of available PIP coverage.” Thus the majority concluded that the innocent victim, rather than the wrongdoer, should  be responsible for the unpaid medical bills incurred for the medical treatment of injuries caused by the wrongdoer.

Does this make sense? Of course not. And Justice Albin, in his dissent, said so. Specifically, Justice Albin properly pointed out that “from the beginning, our automobile tort system did not envision that a victim would be left with uncompensated medical costs while the wrongdoer walked away scot-free … of the financial carnage left behind … that will bankrupt some (victims) and financially crush others.”

After discussing the history of the no fault and PIP statutes, Justice Albin explained that “none of the No Fault amendments suggested that the trade-off for low-income residents purchasing policies with PIP coverage less than $250,000—the only policies they presumably could afford—was that they must sacrifice their common law right to sue for uncompensated medical expenses.” Make sense? Of course.

Let us consider the drastic effects the majority decision could have on a hypothetical scenario. Assume an accident occurs in which a drunk driver (with the minimum $15,000 liability insurance coverage) ran a red light, collided with a car operated by a young single mother, resulting in catastrophic injuries and medical expenses amounting to $245,000. Assume further that the defendant's insurance company paid plaintiff the defendant's $15,000 policy limits. Because this plaintiff could only afford the $15,000 PIP option, after her insurance company paid the first $15,000 of medical bills, according to the majority opinion, she, rather than the drunk driver, will be responsible for the remaining $230,000. Does this make sense? Again, of course not.

Although the majority and the dissent categorically disagreed substantively on the interpretation of the statute involved, they did agree on a solution; they both invited the legislature to get involved. Specifically, Justice Albin, without mincing his words, offered the following invitation: “[T]he majority's erroneous interpretation of the statute is not without a remedy. The Legislature can make clear that today's decision is not what it meant or ever envisioned.”

Similarly, the majority felt that “the interpretation given to Section 12 ( N.J.S.A. 39A: 6A-12) by the (Appellate) panel must, in our view, abide a time when the Legislature has more clearly indicated its intention.”

Unfortunately, in this author's view, the majority did not stay its questionable decision, i.e., abide its draconian effect, while awaiting the legislature's action.

It is hoped, by this author, that the legislature does not hesitate to accept these invitations of the court, consider examples, such as the above hypothetical scenario, of what can happen if the majority's misguided opinion is not rejected, and acts swiftly to adopt Justice Albin's dissent. In doing so, the law will properly place the responsibility for unpaid medical expenses where it belongs—on the wrongdoer and not on the innocent victim. Doesn't that make sense? Of course!

Louis Locascio, a Monmouth County Superior Court judge from 1992 until 2009, is now of counsel with the Red Bank office of Gold, Albanese, Barletti & Locascio, where he heads up their civil and family mediation/arbitration department. He is a certified civil and criminal trial lawyer.