Ken Vercammen's NJ Laws email newsletter January 26, 2003 #115 In this issue: 1. Car Insurance- Select "no limitation on lawsuit option"? 2. Injuries-Sidewalk Liability of Business Property Owner 3. No Medicaid Planning After Incompetent. 4. SUBPOENAS in a court case ________________________ 1. Car Insurance- If you don't review your car insurance declaration sheet and get stuck with limitation on lawsuit option and are injured in a car accident, you probably can be compensated for your injuries Q. What is the "limitation on lawsuit option"? A. The lawsuit limitation option (also known as the verbal threshold) limits your legal rights to make a claim for monetary damages or to file a lawsuit against a careless driver unless you sustain one of the following types of injury. Type 1 - Death Type 2 - Dismemberment Type 3 - Significant disfigurement or scarring Type 4 - Displaced fracture Type 5 - Loss of a fetus Type 6 - Permanent injury A permanent injury occurs when a body part has not and will not heal to function normally. WE RECOMMEND THAT YOU DO NOT ELECT THE "LIMITATION ON LAWSUIT OPTION." Car Insurance Q. What is the "no limitation on lawsuit option"? A. The no limitation option (also known as "no threshold") permits you to make a claim or to file a lawsuit against a careless driver for any and all personal injuries. WE RECOMMEND THAT YOU ELECT THE "NO LIMITATION ON LAWSUIT OPTION." Car Insurance Q. How can I protect myself and my family if we are sued from losing our home? A. A standard policy provides liability insurance with minimum limits of $15,000 per person/ $30,000 per accident if you or your family are sued; however you may purchase additional coverage to protect your assets. ____________________________ 2. Injuries-Sidewalk Liability of Business Property Owner Sidewalk Trip and Fall. Nielsen v. Lee et al. ___ NJ Super. ___ A-6850-OOT5 (App. Div. December 3, 2002). Where plaintiff was injured when he fell on a raised portion of the sidewalk, the result of the heaving of a concrete slab caused by the root of a shade tree, the existence of a municipal shade-tree commission did not automatically relieve the abutting commercial occupier of all responsibility, and summary judgment in favor of defendant is reversed; (although N.J.S.A. 59L4-10b provides that the existence of a shade tree commission does not provide immunity to a private person, the injury here occurred prior to December 5, 1996, the effective date of the statute and, therefore, the issue had to be decided on the basis of existing case law at the time). Source: 170 N.J.L.J. 898 __________________________ 3. No Medicaid Planning After Incompetent. In The Matter of Mildred Keri, a Mentally Incompetent Person ___ NJ Super. ___ A-5949-O1T5 (App. Div. December 19, 2002). Medicaid planning and asset transfer can be performed while someone is competent. The court recently ruled "When a mental incompetent has not, while competent, indicated a preference for "Medicaid Planning" (i.e., the transfer of assets to family members so as to become eligible for nursing home care at Medicaid's expense), a court, faced with such a request from the incompetent's guardian, should not permit such planning under the doctrine of "submitted judgment" for the benefit of the incompetent's self-sufficient adult children. Because of the inherent conflict in such cases between the incompetent parent and his or her children, absent extraordinary circumstances the trial court should appoint the public guardian to represent the incompetent under the Public Guardian. " Therefore, have your attorney do your Estate Planning while you are competent. ______________________ 4. SUBPOENAS in a court case There are two types of subpoena: 1. Subpoena for Records - Also called Subpoena Duces Tecum 2. Subpoena to Testify - called Subpoena Ad Testificandum For records- Our letter to entities we want records from will state the following: Please find Subpoena Duces Tecum and the requisite fee in the amount of $6.00 served upon you pursuant to Rule 1:9-2. A personal appearance by the custodian of records often is not necessary, provided that we receive the requested documents and a Certification to indicate the records are true and accurate. We will not schedule a court reporter on the date listed on the subpoena unless the custodian of records contacts us and requests a personal appearance. Failure to comply with the subpoena may be deemed a Contempt of Court, pursuant to Rule 1:9-5. Subpoenas for medical records should include a signed authorization. Subpoena To testify- Cases are sometimes adjourned by the court or testimony is not taken until the next day. Rather than inconvenience witnesses and require them to sit in court several days and wait, we sometimes permit a witness to be "on- call". This means that the witness agreed to provide a daytime phone number where they can be reached and agreed to appear on 24 hours notice. If the witness does not agree to be "on- call", then they must appear at the Courthouse at the date and time issued on the subpoena, sit around at the courthouse until trial itself begins and return to the Court every day until the trial is started and your testimony required. We wish to avoid inconvenience to the witnesses and often it is granted permission to be "on- call." Under the subpoena a witness is required to appear in court and testify. Failure to appear subjects a witness to numerous penalties. We would appreciate witnesses being "on call" to testify in our behalf when the case is reached. Please advise us as to the daytime telephone number where you can be contacted. If, for any reason, you will not be available, you must call my office upon receipt of this letter. Pursuant to New Jersey Court Rules, a plaintiff or defendant is permitted to reimburse a witness for their hourly rate and lost time in Court. However, we have been advised that we cannot pay witnesses a daily rate for "on-call." We can also provide to witnesses a copy of a map to the Court House. COURT RULE 1:9. provides more information regarding Subpoenas. Go to website www.njlaws.com and follow the link to the NJ Court Rules. Next issue: Recent Supreme Court cases regarding Search and Seizure and Drug cases _______ Thank you for reading our newsletter! God Bless America Kenneth Vercammen (Phone) 732-906-2180 (Fax) 732-906-2155 website: www.njlaws.com Editor's Note and Disclaimer: All materials Copyright 2002. 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