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Well, it took almost eight years, and four attempts, but finally the issue is settled as to who is responsible for medical bills, incurred as a result of an automobile accident, which exceed the Personal Injury Protection (PIP) benefits coverage chosen by the injured party. The choices were: the tortfeasor who caused the accident or the innocent injured party. The answer see-sawed from plaintiff, to defendant, to plaintiff and eventually properly ended with the bills being the responsibility of the party causing the injury.

This significant legal issue arose following an Oct. 19, 2011, auto accident causing injuries to Joshua Haines that resulted in medical bills amounting to $43,000. Unfortunately, Haines had chosen the $15,000 PIP option. He therefore sought to recover the excess bills ($28,000) from the tortfeasor.

Round #1

The trial court held that N.J.S.A. 39: 6A-12, required the plaintiff's PIP insurer to pay the plaintiff's medical bills up to the amount of coverage selected by plaintiff ($15,000, $50,000, $75,000, $150,000 or 250,000). Therefore the court held that the plaintiff should be bound by his decision to chose the less costly policy ($15,000). Thus the trial court held that the plaintiff's excess medical bills could not be considered by the jury or assessed against the culpable party, leaving the innocent plaintiff responsible for excess bills incurred as a result of the tortfeasor's negligence.

Round #2

The Appellate Division rectified the obvious inequitable decision of the trial court. It held that the medical bills, in excess of plaintiff's PIP coverage, were boardable, which would permit a jury to require the tortfeasor to be responsible for these bills. The Appellate Division reasoned that because the statute barred the plaintiff from presenting to the jury the medical bills up to the amount of PIP coverage (to prevent a double recovery), those bills, not being paid by plaintiff's PIP carrier, should be the responsibility of the party who caused plaintiff to incur the bills.

Round #3

Incredibly, the Supreme Court, by a bare 3-2 majority, reversed the well-reasoned decision of the Appellate Division and required the innocent plaintiff to bear the cost of his excess medical bills. This, despite the fact that although N.J.S.A. 39:6A-12 made inadmissible medical bills, up to the amount of the PIP option chosen, N.J.S.A. 39:6A-2(k) provided an exception for "uncompensated economic loss … including, but not limited to medical expenses." Fortunately, Justice Albin, in a very strong, thorough and legally compelling dissent, noted that New Jersey's "tort system did not envision that a victim would be left with uncompensated medical costs while the wrongdoer walked away scot free."

Round #4

The New Jersey Legislature swiftly rectified the matter by amending N.J.S.A 39:6A-12 to specifically permit an injured party to recover uncompensated medical expenses (in excess of the PIP coverage) from the tortfeasor. The revised statute requires the Commissioner of Banking and Insurance to promulgate medical fee schedules for health care providers, who cannot seek payment in excess of the fee schedules. Under the revised statute, the medical expenses subject to the fee schedules will be "admissible as uncompensated economic loss pursuant to N.J.S.A. 39:6A-12."

N.J.S.A. 39:6A-12 was amended  to permit recovery of such uncompensated medical expenses, subject to the fee schedules, from a tortfeasor, including "deductibles and copayments incurred through a driver's secondary insurance coverage and medical liens asserted by a health insurance company related to the treatment of injuries sustained in the accident." Where an action is brought to recover only medical expenses, the prevailing party is also entitled to recover "reasonable and necessary attorney fees" ( for example, cases where a plaintiff, concededly, can not overcome the verbal threshold but incurs medical expenses in excess of his or her PIP option). These provisions apply to automobile accidents occurring after Aug. 1, 2019.

In an April 29, 2019 op-ed article, this author recommended that the legislature accept the invitation of the Supreme Court to quickly act to clarify this significant issue. This author suggested that the legislature could do this by  adopting Justice Albin's dissent (and, in effect, the Appellate Division decision) so as to permit the jury to put the responsibility for unpaid medical bills where it belongs, that is, with the wrongdoer and not the innocent injured party.

Kudos to the legislature  for doing so in such an expeditious fashion.

However, a review of these amendments raises two questions which this author anticipates will be the subject of future litigation (and perhaps the subject of future discussion in this column):

(1) Will the fee schedule apply to medical bills in excess of a plaintiff's PIP option, in cases in the pipeline (those pending from accidents occurring prior to Aug. 1,2019) ? This issue is ripe for interpretation because a prior version of the statute was to be effective "immediately and apply to causes of action pending or filed on or after that date" (i.e., those in the pipeline).

(2) Is Roig v. Kelsey, 135 N.J. 500 (1994), still alive? There the court held that PIP deductibles and copayments were not recoverable from a tortfeasor. The new statute makes these recoverable if made by a driver's secondary (health) insurer; it does not refer to plaintiff's PIP carrier.

Stay tuned.

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.