Commercial Driver Can Be Charged Simultaneously with General and CDL DWI

May 11, 2011

The New Jersey Appellate Division has ruled in State v. Nunnally that a commercial driver suspected of drunk driving may be charged under both the law addressing DWI for personal automobiles and the law dealing DWI and commercial drivers. In this case, a group of school children flagged down a Glen Rock police officer and reported that a DPW plow truck had hit two traffic signs and driven away. The police officer followed the truck to the DPW yard and observed the defendant emerge the truck. The defendant allegedly had bloodshot eyes, slurred speech, smelled of alcohol and could not walk or stand without assistance. He was arrested for suspicion of operating a commercial vehicle with a BAC in excess of .04% (NJSA 39:3-10.13). The defendant than repeatedly failed to blow properly into the Alcotest machine. He was then read the warnings pertaining to CDL refusal and was cited for refusal to take a breath test under the general refusal statute (NJSA 39:4-50(a)), not the CDL refusal statute.

The Municipal court (and eventually the Law Division) found that the defendant could not be charged with general refusal. Additionally, the court found that the State could not amend the general refusal charge to a CDL refusal as the 90 days statute of limitations had expired.

The Appellate Division found that the lower court’s decision was correct. Specifically, the Appellate Division found that “a driver of a commercial vehicle who is arrested and charged only with CDL DUI, and who thereafter refuses a breath test, may only be charged under the cognate CDL refusal statute, and may not be prosecuted under the general refusal statute.” However, the Appellate Division did find that the laws governing general DWI and commercial DWI are separate and distinct. Accordingly, the Court held that if a driver violates general and CDL DWI statutes, he can be arrested and charged under both sets of statutes. The Court further noted that a CDL refusal is not a lesser included offense of general refusal and an individual can be found guilty of violating each separate statute.

Finally, the Court found that the statute address commercial DUI does not allow prosecutions based only on observations.

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.


Reardon Anderson Successful in having client dismissed from lawsuit seeking over $350,000 in damages

April 27, 2011

Reardon Anderson was successful in having its insurance company client and their third-party administrator dismissed from a subrogation action in which the plaintiff was seeking monetary damages in excess of $350,000.  In this matter, Reardon Anderson’s client had issued a Non-trucking Liability policy to a trucking company.  In the underlying case, a driver operating a tractor and trailer owned by the trucking company struck a personal automobile.  As a result of the accident, the occupant in the personal automobile claimed neck and back injuries resulting in a fusion.  The insurer of the personal automobile paid $250,000 in PIP benefits to their insured and $100,000 for uninsured motorist coverage.  Upon the conclusion of the underlying personal injury claim by its insured, the insurer of the personal automobile filed suit against our insurance company (and third-party administrator) client that issued the NTL policy and the insurance company which had issued a commercial auto policy to the trucking company, seeking reimbursement for those funds it had expended.

During this case, it was argued that at the time of the accident, the driver of the truck was under dispatch.  Accordingly, under the NTL policy, no coverage was available.  Interestingly, the principal for the trucking company claimed that the driver of the truck was not authorized to use his trucks as he had never heard of the driver before this accident.  Ultimately, the court granted Reardon Anderson’s summary judgment motion filed on behalf of the insurance company which issued the NTL policy and that company’s third-party administrator.

— Erik Anderson, Esq.

Reardon Anderson is a Tinton Falls, New Jersey based law firm which represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.


US and Mexico Agree to Trucking Deal

March 4, 2011

The United States and Mexican governments have announced an agreement in principal to end a 20 year ban on Mexican trucks entering the United States.  Under the North American Free Trade Agreement, which went into effect in 1994, Mexican truckers were suppose to be permitted to transport goods into the United States.  However, since the enactment of NAFTA, Congress passed a series of laws to deny Mexican truckers the ability to drive into the United States.  As a result of these laws, NAFTA ruled that Mexico could impose punitive tariffs.  Despite NAFTA making this ruling in the late 1990s, the tariffs were not instituted until 2009.

Under the tentative deal reached by both countries, Mexican trucks will have to meet requirements equal to (and in some cases tougher than) those imposed on American truckers.  One of the more stringent requirements is that Mexican trucks must carry electronic recorders to ensure they only drive between the United States and Mexico and not domestically.  Additionally, the electronic records must track compliance with the United States’ hour of service laws.  Mexican truckers most also speak English and pass drug and safety tests.

It i s hoped that the Department of Transportation will have the proposed agreement available for public notice and comment by April.  Upon completing the comment period, the agreement would be formalized between the nations.  Under the agreement in principal, once the formal agreement is signed, half of the tariffs imposed on the United States will be suspended.  The remainder of the tariffs will be lifted when the first Mexican carrier complies with certification requirements.  It is estimated that $2.4 billion of United States goods would be subjected to the Mexican tariffs annually.

— Erik Anderson, Esq.

Reardon Anderson is a Tinton Falls, New Jersey based law firm which represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.


Gov. Christie Signs Law Giving Injured Persons Priority Over PIP Carriers

February 2, 2011

Governor Chris Christie has signed S-191 which amends the Personal Injury Protection statute (N.J.S.A. 39:6A-9.1(b)) to provide that a injured party must be made whole prior to a PIP carrier seeking recovery from an at fault party’s insurer.  As previously reported in our blog, the proposed law passed both houses of the legislature without opposition.  The newly amended law provides that “any recovery by an insurer, health maintenance organization or governmental agency…shall be subject to any claim against the insured tortfeasor’s insurer by the injured party and shall be paid on after satisfaction of that claim, up to the limits of the insured tortfeasor’s motor vehicle or other liability policy.

The amended law nullifies the Supreme Court’s decision in Fernandez v. Nationwide which held that it was proper to give priority to a carrier seeking to be reimbursed for PIP benefits it had paid out even if it reduced the amount of money which could be recovered by an injured party.

— Erik Anderson, Esq.

Reardon Anderson is a Tinton Falls, New Jersey based law firm which represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.


Court Holds that Two Year Statute of Limitations for PIP Reimbursement Claim Begins to Run Upon the Filing of a PIP Claim Form

January 28, 2011

In an unreported Appellate Division decision, the court held that the two-year Statute of Limitations for a PIP reimbursement claim is triggered upon the submission of the PIP claim form.

N.J.S.A. 39:6A-9.1 states “an insurer… paying [PIP] benefits… or medical expense benefits … as a result of an accident occurring within this State, shall, within two years of the filing of the claim, have the right to recover the amount of payments from any tortfeasor who was not, at the time of the accident, required to maintain [PIP] protection or medical expense coverage at the time of the accident.”

On December 1, 2006, Garrison Lange was injured in an automobile accident when his vehicle was struck by a vehicle owned by Holger Trucking Company.  That day, Lange contacted his automobile insurer, New Jersey Manufacturers Insurance Group (NJM) advising of the accident and claiming he had sustained neck and back injuries.  That day, NJM created a PIP file and assigned a file number.

On December 4, 2006, the NJM adjuster mailed Lange a PIP application.  That day, Lange treated with Dr. Palluzzi.  On December 6, 2006, Dr. Palluzzi submitted bills to NJM for treatment.  On December 8, 2006, NJM received the bills.  Also on December 8, 2006, Dr. Palluzzi sent NJM a letter of medical necessity and requesting approval for a one-month treatment plan.  NJM authorized the treatment plan on December 11, 2006.

On December 20, 2006, Lange sent NJM a completed PIP application which NJM received on December 26, 2006.  It was not until December 24, 2008, that NJM filed its complaint against Holger and ARI seeking reimbursement of approximately $53,000 in PIP benefits NJM paid on Lange’s behalf.

Holger and ARI moved for Summary Judgment alleging that NJM’s suit was filed more than two years after Lange first advised NJM of the accident and more than two years after NJM opened its PIP  file.   NJM argued that the suit was timely filed because it did not receive Lange’s formal PIP application until December 26, 2006.  The trial court agreed with NJM and denied defendant’s motion.  On appeal, the Appellate Division noted that the statute does not define what is meant by “the claim.”  The court focused on the Legislatures’ use of the definite article in reference to the submission of “the claim” as the event triggering the running of the statute of limitations.  Accordingly, the court found that the Legislature likely intended to mean a single, definitive event and not any of a series of events in defining “the claim.”  The court also noted the very nature of the undertaking, (i.e., the fixing of the moment upon which the limitations period begins to run) suggests a need to provide the parties with a clear and unambiguous understanding of which of any number of occurrences is the triggering event for the statute of limitations.  The court placed significant emphasis on the fact that the Legislature described that event as the filing of “the claim” and not “a claim.”

The court then examined whether “the claim” meant the first claim (the initial telephone call); the last claim (last request for payment from a health care provider) or “the claim that is different from all others, namely, the insured’s PIP application.”  In focusing on the Legislature’s intent to fix one particular, distinguishable event as the trigger for the limitations period, the court concluded that the submission of the PIP claim form triggers the two-year Statute of Limitations.

What is interesting about the decision is that the court noted, “We are concerned by the fact – as the parties recognize – that the policy in question and perhaps others like it, do not require that an insured ever submit a PIP claim form; nor do the no fault laws compel such a filing.  As a result, the event we assume to be the triggering event for the time within which a reimbursement suit must be commenced may be something that, in many cases, may never occur.” The court then noted that “we take comfort in knowing that the Legislature is fully capable of correcting the statute’s ambiguity if it believes we have erroneously interpreted the statute.”

— Tom Reardon, Esq.

Reardon Anderson is a Tinton Falls, New Jersey based law firm which represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.


Clean the Snow Off Your Car or Pay A Fine

December 28, 2010

In light of the recent blizzard, we thought it would be appropriate to remind everyone that New Jersey law requires that a driver must clear their car of snow and ice before driving. This law applies to both commercial and non-commercial drivers. Under the law, a police officer may pull over a vehicle which has snow and/or ice on any exposed surface (it does not matter if the snow and/or ice has fallen off the car while driving). If a driver is found guilty of driving with snow and/or ice their vehicle, they are subject to a fine of not less than $25 and not more than $75. If snow and/or ice falls of a vehicle and causes an injury or property damage, the driver is subject to a fine of not less than $200 and nor more than $1,000.

Make sure to clean off your car before driving.

— Erik Anderson, Esq.

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.


Plaintiffs to be Given Priority Over PIP Carriers Under Proposed Bill

December 21, 2010

On December 13, 2010, the NJ Assembly voted 75 to 0 to approve legislation granting plaintiffs priority over PIP carriers seeking reimbursement for PIP benefits against a tortfeasor’s insurance policy (the Senate passed its version of this bill 37 to 0 on October 18, 2010). This bill was proposed to reverse the New Jersey Supreme Court’s decision in Fernandez v. Nationwide Mutual First Insurance Company, 199 NJ 591 (2009), which found that an injured plaintiff does not have priority to the insurance proceeds of a tortfeasor when a carrier seeks to be reimbursed for PIP benefits it had paid out to that plaintiff.

The Fernandez matter involved a tractor trailer striking Mr. Fernandez and causing significant injuries. Fernandez received $250,000 in PIP benefits under his automobile policy issued by Nationwide. In April 2004, Fernandez sued the trucking company, which was insured by Proformance Insurance Company. In July 2004, Nationwide filed a subrogation claim through arbitration against Proformance seeking reimbursement of the $250,000 in PIP benefits paid to Fernandez. Subsequently, Fernandez settled with Proformance for his personal injuries for $1,000,000. However, Proformance paid Fernandez only $750,000 and deposited $250,000 in court pending the outcome of the PIP arbitration filed by Nationwide.

Fernandez objected to Proformance depositing the $250,000 into court and filed an action seeking the release of those funds to him in fulfillment of his settlement agreement. The trial court found that Fernandez had priority to the Proformance policy and Nationwide was only allowed to recover that amount still available under the Proformance policy (if any) after Fernandez’ recovery. The Appellate Division reversed the trial court and found that Nationwide should be reimbursed for those PIP benefits paid even if Fernandez did not receive his total settlement. Ultimately the Supreme Court upheld the Appellate Division’s decision and found that an injured individual did not have priority to a tortfeasor’s policy of insurance.

The bill passed by the Assembly and Senate amends the existing PIP statute regarding reimbursement to provide:

Any recovery by an insurer, health maintenance organization or governmental agency…shall be subject to any claim against the insured tortfeasor’s insurer by the injured party and shall be paid only after satisfaction of that claim, up to the limits of the insured tortfeasor’s motor vehicle or other liability policy.

The bill now goes to Governor Christie for his consideration.

— Erik Anderson, Esq.

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.