New Jersey’s verbal threshold explained

New Jersey lets drivers give up part of their right to sue in exchange for a lower premium. The trade is called the “limitation on lawsuit option.” Lawyers often call it the verbal threshold, because the statute lists in words the injuries that get past it.¹

If the limitation applies to you, you can still sue the driver who caused the crash. But you can recover money for pain and suffering only if your injury fits one of six categories. This guide explains how the rule works and where injured people most often get tripped up.

Two choices on a standard policy

A New Jersey standard auto policy offers two tort options. Under the limitation on lawsuit option in N.J.S.A. 39:6A-8(a), the at-fault driver is exempt from paying you for “noneconomic loss” (pain, suffering and similar harms) unless your injury falls into a listed category.¹ Under the no limitation option in N.J.S.A. 39:6A-8(b), you can seek noneconomic damages for any injury caused by someone else’s negligence.¹

You choose in writing on a coverage selection form that you sign, and the form must show the price difference between the two options.² If you never made a written choice, the law deems you to have chosen the limitation on lawsuit option.² Your choice carries over at each renewal until you sign a new form.²

Two lower-cost policies come with the limitation built in. Everyone covered by a New Jersey basic policy is subject to it,³ and so is everyone covered by the Special Automobile Insurance Policy available to eligible Medicaid enrollees.⁴

Whose policy decides your right to sue

The tort option a named insured elects applies to that person and to “immediate family members” living in the household.² The statute defines that term as the named insured’s spouse and any child of the named insured or spouse who lives in the household and is not a named insured on another auto policy.²

When more than one policy could apply, the statute generally looks to the injured person’s own household policy. If you are a named insured on your own policy, your election controls. If you are an immediate family member without your own policy and the accident involves a car covered by a household member’s policy, that household member’s election controls.²

If you have no auto policy and no one in your household has one, the analysis is different and depends on the facts. That situation is worth reviewing with a lawyer.

The six categories that open the door

Under the limitation on lawsuit option, you can recover for pain and suffering only if you sustained a bodily injury that results in one of the categories below, in the statute’s own words.¹

A fracture that is not displaced does not fit the fracture category, but it can still qualify if it meets the definition of a permanent injury. Once one injury meets a category, the jury may consider all of your accident injuries when deciding pain and suffering damages, including injuries that would not qualify on their own.⁸

At trial, the jury decides whether an injury caused by the accident fits a category. If none does, the verdict must be for the defendant.¹⁰

What counts as a permanent injury

The statute gives a precise definition. “An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment.”¹

That definition is about function, not only pain. A physician has to be able to say, within a reasonable degree of medical probability, that the injured body part will not return to normal even with more treatment.

Objective clinical evidence

Permanency has to rest on objective proof. New Jersey’s model jury charge explains that the injury “must be verified by physical examination or medical testing and cannot be based solely upon the plaintiff’s subjective complaints.”¹⁰ Testing used to support the doctor’s certification may not be experimental or “dependent entirely upon subjective patient response.”¹

In practice this often means imaging, diagnostic testing, and findings your doctors document on examination. How you describe your pain still matters at trial, but it will not by itself carry a permanent injury claim past the threshold.⁷

The doctor’s certification and its deadline

If you sue under the limitation on lawsuit option, you must give the defendant a physician certification within 60 days after the defendant files an answer to your complaint.¹ The certification must come from your licensed treating physician, or from a board-certified licensed physician your treating doctor referred you to.¹

The doctor states, under penalty of perjury, that you sustained an injury in one of the six categories. The certification must be based on and refer to objective clinical evidence.¹ A court may grant one more period of up to 60 days for good cause.¹ Knowingly filing a false certification is a crime of the fourth degree, and a professional license can be forfeited.¹

No separate test for impact on your life

For a time, some New Jersey courts required injured people to prove both a qualifying injury and a “serious impact” on their lives. In DiProspero v. Penn, the Supreme Court of New Jersey rejected that extra requirement. The Court held that the Legislature did not intend to make a plaintiff with a permanent injury also prove a “serious or substantial impact” on his or her life.⁵

The Court decided Serrano v. Serrano the same day and applied the same rule.⁶ As the Court later summarized, to get past the verbal threshold an accident victim “need only prove an injury as defined in the statute.”⁷

How much your daily life changed still matters when a jury decides what your claim is worth. It is just not a separate hurdle for getting past the threshold.

Pre-existing conditions and aggravation

Many people hurt in crashes already had some neck, back or joint problems. That alone does not end a claim. In Davidson v. Slater, the Supreme Court of New Jersey held that a plaintiff who does not claim aggravation of a pre-existing injury is not required to produce a comparative medical analysis (a side-by-side comparison of the old and new conditions) to meet the threshold.⁷

The rule changes when you claim the crash made an existing condition worse. In that situation, the Court explained, “comparative medical evidence is necessary” as part of your proof.⁷ Whether that comparison is needed turns on ordinary rules about causation and who carries the burden of proof.⁷

Your doctors should know your full medical history. Prior records, earlier imaging and an honest account of past problems help a physician separate what the accident caused from what came before.

Out-of-state drivers and the deemer statute

The verbal threshold can reach people who do not live in New Jersey. Under N.J.S.A. 17:28-1.4, often called the deemer statute, an insurer authorized to sell auto insurance in New Jersey (or affiliated with one that is) must provide New Jersey PIP and liability coverage whenever a car it insures is used or operated in New Jersey.¹¹ The named insured and immediate family members under that policy are then subject to the limitation on lawsuit option.¹¹

So a New York driver hurt in New Jersey may find that the verbal threshold applies, even without ever seeing a New Jersey coverage form. Our guide to cross-border accidents explains how the two states’ rules interact.

What the threshold does not limit

The limitation on lawsuit option exempts the at-fault driver only from liability for noneconomic loss.¹ It does not bar a claim for economic losses that PIP does not pay. Lost wages above your PIP income benefits are a common example.

There are limits on the economic side too. Amounts paid or collectible under PIP, including deductibles and copayments, are generally inadmissible in your lawsuit against the other driver, so they are generally not recoverable there.¹² Medical bills above your PIP limit are different. After the Supreme Court of New Jersey’s 2019 decision in Haines v. Taft, the Legislature amended the statute so that you can claim from the at-fault driver the unreimbursed medical expenses your PIP limit does not cover, figured under the auto medical fee schedules, even if you elected a PIP medical limit below $250,000.¹³ Our New Jersey PIP guide explains those coverage choices.

Every threshold case turns on the medical record and the policy in effect on the day of the crash. If you are unsure which option applies to you or whether your injury qualifies, talk to a lawyer about your specific facts.