|3B:10-6. Acts of administrator before notice of will|
Lawful acts performed in good faith by an administrator before notice of a will and purchases or transfers made by him in good faith before notice shall remain valid and shall not be impeached or altered by an executor upon probate of the will.Nothing in this section shall be construed to relieve the administrator of any liability to the executor under the will for property unadministered or maladministered.
3B:10-7. Ancillary administration on estate of nonresident intestate Where a nonresident dies intestate seized of real property or possessed of personal property in this State, or where the evidence of his personal property shall be in the hands of any resident of this State, the surrogate's court of the county wherein any of the real or personal property or evidence thereof, is situate, or the Superior Court, shall, in an action upon satisfactory proof of intestacy, issue letters of administration upon the estate of the nonresident to the administrator of his estate or, on notice to the administrator as the court shall require, to any person who would be entitled to administration if the intestate had been a resident at his death.
3B:10-8. Administration by creditor of nonresident decedent If a personal representative of a nonresident decedent fails to apply in this State for letters testamentary or of administration within 60 days next after the death of the decedent and there is real or personal property of the decedent within this State, or the evidence thereof in the hands of a resident of this State, the surrogate's court of a county wherein the real property, or personal property or evidence, is situate, or the Superior Court, may, in an action by any person resident or nonresident, alleging himself to have a debt or legal claim against the decedent which by the law of this State survives against his representatives, issue letters of administration, with the will annexed or otherwise as the case may require, to some fit person to be designated by the court.
Prior to an appointment pursuant to this section, notice shall be given the foreign personal representative as the court shall prescribe.
3B:10-9. Record of appointment of personal representative; evidentiary effect If any person shall desire to have the appointment of a personal representative appointed in another state recorded in this State for the purpose of manifesting the authority of the personal representative to release or discharge real estate in this State from any mortgage, judgment, other lien or encumbrance which was held by his decedent the surrogate of the county wherein the real estate is situate, or the clerk of the Superior Court, may, upon the presentation to him of an exemplified copy of the record of the appointment of the personal representative, record and file the exemplified copy in his office, and the record or certified copies thereof shall be received as evidence in all courts of this State.
3B:10-10. Executor de son tort Whereas it is sometimes practiced to the defrauding of creditors, that persons who are entitled to the administration of the estate of an intestate will not accept administration, but suffer or procure the administration to be granted to others of indigent circumstances, from whom they, or others, by their means, by deeds of gifts, or by letters of attorney, obtain the estate of the intestate into their hands, and are not subject to the payment of the debts of the intestate, and so the creditors cannot have or recover their just debts and demands; therefore, if any person shall obtain, receive and have, any property or debts of an intestate, or a release or other discharge of any debt or duty due the intestate, upon any fraud as herein provided, without valuable consideration as shall amount to the value of the property or debts, or near thereabouts except it be in or towards satisfaction of some just debt, of the value of the same property or debts, to him owing by the intestate at the time of his decease, the person shall be charged and chargeable as executor of his own wrong so far only, as all the property and debts coming to his hands, or whereof he is released or discharged by the administrator, will satisfy. However he shall not be charged for those just debts, contracted without fraud and upon a good consideration, which are owing to him by the intestate at the time of his decease, nor for payments made by him which lawful executors or administrators ought to pay.
3B:10-11. Administration ad prosequendum on death by wrongful act The surrogate's court of the county wherein an intestate resided at his death, or, if the intestate resided outside the State, the surrogate's court of the county wherein the accident resulting in death occurred, or the Superior Court, may grant letters of administration ad prosequendum to the person entitled by law to general administration. An administrator ad prosequendum shall not be required to give bond.
3B:10-12. Temporary administration The Superior Court may grant administration ad litem, temporary administration, administration pendente lite, or any form of limited administration.
3B:10-13. Duty to apply in this State for original letters of administration When an intestate is resident in any county of New Jersey at his death, it shall be the duty of the heir or any other person desiring original letters of administration upon his estate to make application therefor to the surrogate of that county or to the Superior Court of this State.
Any person having knowledge of the grant in a foreign jurisdiction of original letters of administration upon the estate of a person dying resident in any county of New Jersey, shall give information thereof to the Superior Court.
The court may direct the clerk of the court to issue and have served subpoenas or an order to show cause requiring the appearance before it, at a specified time, of any persons having any interest in the estate, and commanding them to abide the order of the court. The matter of the grant of letters of administration shall be wholly within the jurisdiction of the court.
3B:10-14. Appointment of debtor as executor; debt not discharged The appointment of a debtor as executor shall not, unless otherwise expressed in the will, be construed to discharge the executor from payment of the debt, but the debt shall be considered an asset in the hands of the executor and shall be accounted for in the same manner as any other part of the decedent's estate.
3B:10-15. Appointment of substituted administrators When a sole or sole surviving or remaining executor or administrator, with or without the will annexed, dies or is removed or discharged by the court after qualifying and entering upon the duties of his office but before the completion thereof, the vacancy so created shall, except as hereinafter provided, be filled by the appointment of a fit person to exercise the vacated office. The person so appointed shall be nominated substituted administrator with the will annexed or substituted administrator, as the case may be.
3B:10-16. Decedent's will to be observed Where administration is granted with the will annexed, the will of the decedent therein expressed shall be observed and performed.
3B:10-17. Manner in which appointment shall be made The appointment shall be made by the issuance of letters of substitutionary administration, with or without the will annexed as the case may be, by the surrogate's court or the Superior Court in the manner and upon the conditions prescribed for granting letters of administration to the first administrators in other cases.
3B:10-18. When appointment unnecessary The appointment of a substituted administrator shall not be required if the unadministered assets of the intestate or testator consist of money on deposit in a bank, trust company or savings and loan association not exceeding $1,000.00, in which event it shall be lawful for the Superior Court, in an action brought by any party in interest, to authorize the bank, trust company or savings and loan association to distribute to the persons entitled by law to receive the assets. Payments made pursuant to the authority of this section shall release the bank, trust company or savings and loan association from any claim of, or liability to, any person interested in the estate.
3B:10-19. Commencement of duties and powers of a personal representative The duties and powers of a personal representative commence upon his appointment. The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter.
3B:10-20. Ratification of prior acts A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative.
3B:10-21. Carrying out decedent's written funeral instructions Prior to appointment, a person named executor in a will may carry out written instructions of the decedent relating to his body, funeral and burial arrangements.
3B:10-22. Priority among letters A person to whom general letters of appointment are issued first has exclusive authority under the letters until his appointment is terminated or modified. If, through error, general letters of appointment are afterwards issued to another, the first appointed personal representative may recover any property of the estate in the hands of the personal representative subsequently appointed, but the acts of the latter done in good faith before notice of the first letters are not void for want of validity of appointment.
3B:10-23. Duty of personal representative to settle and distribute estate A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and applicable law, and as expeditiously and efficiently as is consistent with the best interests of the estate. He shall use the authority conferred upon him by law, the terms of the will, if any, and any order in proceedings to which he is a party for the best interests of successors to the estate.
3B:10-24. Liability for acts of administration or distribution A personal representative shall not be surcharged for acts of administration or distribution if the conduct in question was authorized at the time. Subject to other obligations of administration, a probated will is authority to administer and distribute the estate according to its terms. An order of appointment of a personal representative is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of a pending proceeding to probate a will or to determine heirs, a proceeding to vacate an order entered in an earlier proceeding to probate a will, a formal proceeding questioning his appointment or fitness to continue. Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of claimants and others interested in the estate.
3B:10-25. Standing to sue and be sued Except as to proceedings which do not survive the death of the decedent, a personal representative of a decedent domiciled in this State at his death has the same standing to sue and be sued in the courts of this State and the courts of any other jurisdiction as his decedent had immediately prior to death.
3B:10-26. Standards of care to be observed Except as otherwise provided by the terms of a decedent's will, the personal representative shall observe the standards in dealing with the estate assets that would be observed by a prudent man dealing with the property of another, and if the personal representative has special skills or is named personal representative on the basis of representations of special skills or expertise, he is under a duty to use those skills.
3B:10-27. Right to possession of property transferred in fraud of creditors The right to possession of property transferred in fraud of creditors recovered for the benefit of creditors is exclusively in the personal representative.
3B:10-28. Expeditious settlement and distribution A personal representative shall proceed expeditiously with the settlement and distribution of a decedent's estate and do so without adjudication, order, or direction of a court, but he may invoke the jurisdiction of a court, in proceedings authorized by law to resolve questions concerning the estate or its administration.
3B:10-29. Possession and control of estate Except as otherwise provided by a decedent's will, every personal representative has a right to, and shall take possession or control of, the decedent's property, except that any tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property by him will be necessary for purposes of administration. The request by a personal representative for delivery of any property possessed by an heir or devisee is conclusive evidence, in any action against the heir or devisee for possession thereof, that the possession of the property by the personal representative is necessary for purposes of administration. The personal representative shall pay taxes on, and take all steps reasonably necessary for the management, protection and preservation of, the estate in his possession. He may maintain an action to recover possession of property or to determine the title thereto.
3B:10-30. Power over title to property Until termination of his appointment a personal representative has the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate. This power may be exercised without notice, hearing, or order of court.
3B:10-31. Powers and duties of successor representative A successor personal representative has the same power and duty as the original personal representative to complete the administration and distribution of the estate, as expeditiously as possible, but he shall not exercise any power expressly made personal to the executor named in the will.
3B:10-32. Powers of surviving co-personal representative Unless the terms of the will otherwise provide, every power exercisable by co-personal representatives may be exercised by the one or more remaining after the appointment of one or more is terminated, and if one of two or more nominated as co-personal representatives is not appointed, those appointed may exercise all the powers incident to the office.
3B:11-1. Creator's reserved interest in trust alienable subject to creditors' claims The right of any creator of a trust to receive either the income or the principal of the trust or any part of either thereof, presently or in the future, shall be freely alienable and shall be subject to the claims of his creditors, notwithstanding any provision to the contrary in the terms of the trust.
3B:11-2. Letters of trusteeship under a will A testamentary trustee or substituted testamentary trustee, before exercising the authority vested in him by virtue of any will admitted to probate by the Superior Court, or any surrogate's court of this State, shall obtain letters of trusteeship from that court.
3B:11-3. Trustees construed to be joint tenants All estates heretofore or hereafter granted or devised to trustees shall be construed to have vested and to vest an estate of joint tenancy in the trustees.
When a trustee is removed a conveyance or devise from the removed trustee to the old and new trustees or to the new trustees shall vest in the old and new trustees or the new trustees an estate in joint tenancy, notwithstanding any want of unity.
When a trustee dies or resigns or his office becomes vacant for any cause, and a new trustee is appointed, the surviving trustees, if any there be, and the new trustees shall hold the trust estate as joint tenants, and a conveyance of a right and interest in the trust estate from the surviving trustees, to the new trustee shall vest in all the trustees an estate in joint tenancy, notwithstanding any want of unity.
When a new, additional or substituted trustee is appointed by a court of competent jurisdiction or becomes such by operation of the terms of a will or other instrument or by operation of law, title to the trust assets shall forthwith vest in all the trustees in office including the new, additional or substituted trustee as joint tenants.
3B:11-4. Effect to be given consent by holders of general powers of appointment upon beneficiaries For the purpose of granting consent or approval with regard to the acts or accounts of a fiduciary or trustee, including relief from liability or penalty for failure to post bond, or to perform other duties, and for purposes of consenting to modification or termination of a trust or to deviation from its terms, the sole holder or all coholders of a presently exercisable general power of appointment, including one in the form of a power of amendment or revocation, are deemed to act for beneficiaries to the extent that the interests of the beneficiaries as objects, takers in default, or otherwise are subject to the power. As used in this section, a presently exercisable general power of appointment is one which enables the power holder to presently draw absolute ownership to himself.
3B:11-4.1. Limitations on powers of trustees; applicability; "interested party" defined 1. a. The following powers conferred by a governing instrument upon a trustee in his or her capacity as a trustee shall not be exercised by that trustee:
(1) The power to make discretionary distributions of either principal or income to or for the benefit of the trustee, the trustee's estate, or the creditors of either, unless either:
(a) limited by an ascertainable standard relating to the trustee's health, education, support or maintenance, within the meaning of 26 U.S.C. 2041 and 2514; or
(b) exercisable by the trustee only in conjunction with another person having a substantial interest in the property subject to the power which is adverse to the interest of the trustee within the meaning of 26 U.S.C. 2041(b) (1) (C) (ii);
If a trustee is prohibited by paragraph (1) of this subsection from exercising a power conferred upon the trustee, the trustee nevertheless may exercise that power but shall be limited to distributions for the trustee's health, education, support or maintenance to the extent otherwise permitted by the terms of the trust.
(2) The power to make discretionary distributions of either principal or income to satisfy any of the trustee's personal legal obligations for support or other purposes;
(3) The power to make discretionary allocations in the trustee's personal favor of receipts or expenses as between income and principal, unless such trustee has no power to enlarge or shift any beneficial interest except as an incidental consequence of the discharge of such trustee's fiduciary duties;
(4) The power to exercise any of the powers proscribed in this subsection with regard to an individual other than the trustee to the extent that such individual could exercise a similar prohibited power in connection with a trust that benefits the trustee.
b. Unless otherwise prohibited by the provisions of subsection a. of this section, a trustee may exercise a power described in that subsection in favor of someone other than the trustee, the trustee's estate, or the creditors of either.
c. If a governing instrument contains a power proscribed under subsection a. of this section the following shall apply:
(1) If the power is conferred on two or more trustees, it may be exercised by the trustee or trustees who are not so prohibited as if they were the only trustee or trustees; or
(2) If there is no trustee in office who can exercise such power upon application of any interested party, a court of competent jurisdiction shall appoint a trustee to exercise such power or, except as provided in subsection d. of this section, a successor trustee who would not be disqualified shall be appointed to exercise the power that the other trustees cannot exercise in accordance with the provisions of the trust instrument as if the office of trustee were vacant.
d. No beneficiary of a trust, in an individual, trustee or other capacity, may appoint, or remove and appoint, a trustee who is related or subordinate to the beneficiary within the meaning of 26 U.S.C. 672 (c) unless:
(1) the trustee's discretionary power to make distributions to or for such beneficiary is limited by an ascertainable standard relating to the beneficiary's health, education, support or maintenance as set forth in subsection a. of this section;
(2) the trustee's discretionary power may not be exercised to satisfy any of such beneficiary's legal obligations for support or other purposes; and
(3) the trustee's discretionary power may not be exercised to grant to such beneficiary a general power to appoint property of the trust to the beneficiary, the beneficiary's estate or the creditors thereof within the meaning of 26 U.S.C. 2041.
This subsection d. shall not apply if the appointment of the trustee by the beneficiary may be made only in conjunction with another person having a substantial interest in the property of the trust, subject to the power, which is adverse to the exercise of the power in favor of the beneficiary within the meaning of 26 U.S.C. 2041(b) (1) (C) (ii).
e. The provisions of this section shall not apply during the time that a trust remains revocable or amendable by the grantor.
f. This section applies to:
(1) Any trust created under a governing instrument executed 90 days or more after the effective date of this act, unless the governing instrument expressly provides that this act does not apply; and
(2) Any trust created under a governing instrument executed before 90 days after the effective date of this act, unless all interested parties affirmatively elect on or before three years after the effective date by a written declaration signed by or on behalf of each interested party and delivered to the trustee, not to be subject to the application of this act. In the case of a testamentary trust, such declarations shall be filed with the clerk of the court in which the will was admitted to probate.
g. In this section the term "interested party" means:
(1) Each trustee then serving; and
(2) Each person having an interest in income or principal whom it would be necessary to join as a party in a proceeding for the judicial settlement of a trustee's account or, if such a person has not attained majority or is otherwise incapacitated, the person's legal representative under applicable law or the person's agent under a durable power of attorney that is sufficient to grant such authority.
3B:11-5. Trustee's death or failure to act; appointment of new trustee by court; powers When a trustee appointed by a will probated in the surrogate's court of any county or a trustee appointed under a trust inter vivos as to real or personal property situate in any county fails or refuses to act or dies before the execution or completion of the trust committed to him, or absconds or removes from this State, is adjudicated a mental incompetent or becomes in any manner legally incapable of executing the trust, the Superior Court may remove the trustee, if he be alive, and appoint a suitable person or persons to execute the trust, and the trustee or trustees so appointed shall be entitled to the trust estate as fully and in the same manner as the original trustee was and shall have all the power and discretion of the original trustee.
3B:11-6. Vacancy in trusteeship upon discharge or removal When a trustee is removed or discharged by the Superior Court before the completion of the trust, the court may appoint a fit person or persons to fill the vacated office.
3B:11-7. Powers of new, substituted or additional trustees A duly appointed new, substituted or additional trustee shall have the same power and discretion with respect to the investment, management, conversion, sale or other disposition of the trust estate, whether real or personal, as was given to or vested in the original trustee or trustees named in or appointed by the will or other instrument creating or continuing the trust, notwithstanding the power or discretion may be directed by the will or other instrument to be exercised at the discretion of the original trustee or trustees unless the power or discretion of the original trustee or trustees is expressly prohibited by the will or other instrument to any new, substituted or additional trustee.
Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee, GP and was a speaker at the ABA Annual Meeting. To schedule a confidential consultation, call us or New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm
Kenneth Vercammen & Associates, P.C,
2053 Woodbridge Avenue,
Edison, NJ 08817,
Friday, May 26, 2017
The most common example is a step father adopting his wife's child from a prior relationship. In these cases, a Complaint must be filed in the Superior Court by the person (plaintiff) who wishes to adopt the child.
The New Jersey Court Rules and Adoption Statute has specific requirements for adoptions. The Complaint should set forth the following:
1. The name, age, address of adoptive father. Adoptive father is a citizen of the United States and not related to the child.
2. The child's name, place of birth, date of birth, and age.
3. Name and ages of any children of the proposed adoptive parent and the child's parent.
4. Where and when the plaintiffs began to take care of the child to be adopted from the natural mother.
5. The date from which the child has been under the continuous care of the plaintiff.
6. The name and address of the natural father and natural mother, if known to the plaintiffs. The natural parents were not married.
7. Whether the child to be adopted has any property.
8. The name by which the child to be adopted shall be known.
9. Place and type of employment and that both plaintiff and mother are able to support the child to be adopted.
10. Attach a typed affidavit of the consent of the natural mother.
11. Plaintiffs demand a judgment of adoption as to the child and that his name be changed.
In addition, the consent of the available natural father should be obtained. The affidavit to be prepared by the attorney which will contain some of the following information:
Consent of Mother/Father - To be signed in front of a Notary
1. The name and age of natural parent, declaration that he/she is the natural parent, city and county of child's birth.
2. Signed consent of natural parent to adoption of child by plaintiffs, relinquishment of all right and claim to child, and agreement that, from the date of the decree of adoption of child, that the child will, to all legal intents and purposes, be the child of the persons adopting the child.
3. (Optional) Consent of natural parent to child being raised in a particular religion.
Hearing Order An order fixing the day for hearing and publication must be prepared by your attorney. It must be submitted to the Court and signed by the Court. The Court Orders will set forth that:
1. The child sought to be adopted is to be a ward of the court;
2. Date and place of the hearing; 3. The Complaint for Adoption, together with the Order for hearing, and
Notice in the form required by N.J.S.A. 9:3-45, shall be published in The Home News and Tribune or another newspaper of general circulation.
4. Who should be served notice by personal service or certified mail.
The adoptive father, natural mother and child should appear at the hearing. The Supreme Court Judge will conduct the questioning in the Judge's Chambers. Your attorney will help you prepare.
Final Judgment of Adoption
A Final Judgment of Adoption by the court will set forth some of the following information:
1. That by virtue of the Complaint that Plaintiff desires to adopt the minor child, and a preliminary hearing having been held, and it further appearing that the best interest of the child would be promoted by such adoption, and it further appearing through notice by Publication of these proceedings set forth in The Home News & Tribune that the natural father of the child, has not contested the proceedings;
2. It is ordered and adjudged:
A. The above named child be adopted by the plaintiff. B. The name of the child shall be changed to _____. C. Upon entry of this Judgment of Adoption, the relationship heretofore existing between the child and the natural father of the child, be in all respects at an end;
D. The entry of this Judgment shall not affect or terminate any rights, duties, privileges, and relationships existing between the child and his natural mother, nor his right of inheritance from or through her, nor the rights of inheritance under the intestate laws of this State through the natural father.
E. The entry of this Judgment shall establish the same relationship between the child and the adopting parent as if such child were born to such adopting parent in lawful wedlock, including the rights of inheritance.
Post Adoption Hearing Procedures
Your attorney should fill out paperwork to obtain a new birth certificate. An adoption is a final proceeding. Even a divorce does not revoke an adoption. For additional information on adoption, contact a New Jersey attorney.
Selected statutes dealing with Adoption:
9:3-42. Jurisdiction in Chancery, venue 6. An action for adoption shall be instituted in the Superior Court, Chancery Division, Family Part of the county in which the prospective parent resides, or in the county where the child resided immediately prior to placement for adoption, or if the child is less than three months of age, the county in which the child was born; except that whenever the child to be adopted has been received into the home of a prospective parent from an approved agency, the action may be instituted in the Superior Court, Chancery Division, Family Part of any county in which the approved agency has an office.
2C:2-6 Accomplice Liability
|A person is an accomplice of another person in the commission of a crime when, with the purpose of promoting or facilitating the commission of the crime, he does one of several things. He either solicits the other person to commit the crime, and/or aids, agrees or attempts to aid such other person in planning or committing the crime. State v JACKMON 305 N.J. Super. 274. (App. Div. 1997)|
Liability for conduct of another;
a. A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.?
b. A person is legally accountable for the conduct of another person when: (1) Acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct; (2) He is made accountable for the conduct of such other person by the code or by the law defining the offense; (3) He is an accomplice of such other person in the commission of an offense; or (4) He is engaged in a conspiracy with such other person.?
c. A person is an accomplice of another person in the commission of an offense if: (1) With the purpose of promoting or facilitating the commission of the offense; he (a) Solicits such other person to commit it; (b) Aids or agrees or attempts to aid such other person in planning or committing it; or (c) Having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or (2) His conduct is expressly declared by law to establish his complicity.
d. A person who is legally incapable of committing a particular offense himself may be guilty thereof if it is committed by another person for whose conduct he is legally accountable, unless such liability is inconsistent with the purpose of the provision establishing his incapacity.?
e. Unless otherwise provided by the code or by the law defining the offense, a person is not an accomplice in an offense committed by another person if: (1) He is a victim of that offense; (2) The offense is so defined that his conduct is inevitably incident to its commission; or (3) He terminates his complicity under circumstances manifesting a complete and voluntary renunciation as defined in section 2C:5-1 d. prior to the commission of the offense. Termination by renunciation is an affirmative defense which the defendant must prove by a preponderance of evidence.
f. An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted.
We sincerely hope that you and your family will enjoy safe motoring, free from accident. If however you do have an accident, to protect your legal rights, the following suggestions may be helpful:
At The Accident Scene -
1. Stop . . . do not leave the scene of the accident
(a) DIRECT OTHER TRAFFIC around the accident.
(b) HELP THE INJURED but don't move them unless absolutely necessary.
(c) CALL THE POLICE, tell them where the accident occurred and ask for medical help if needed.
2. Get names, addresses, and license numbers of all drivers involved.
3. Get description and registration number and insurance information of all cars involved.
License Plate Number
Make ___________ Year _________
Insurance Policy Number
4. Get names and addresses of all witnesses (other than passengers)
5. Police Officers
6. Accident Information
No. of vehicles involved
Speed of the other car
6. Summary of accident
7. Diagram of accident
8. Make sure no one is injured. If anyone is injured call an ambulance. If you have any reason to suspect you were injured in the accident, see a physician promptly. You'll want it on record that you sought treatment right away - not in a week or so .
9. Witnesses will be a tremendous help to you in any subsequent court action, if there is any question of liability involved. Get the names and addresses of as many witnesses as possible. If they refuse to identify themselves, jot down the license plate numbers of the their automobiles. Do not discuss the accident with the witnesses. Do not give the witnesses to anyone but the police, your attorney or your insurance company.
10. Do not assign or accept blame for the accident.
- The scene of the accident is not the place to determine fault. Discuss the accident only with the police, your attorney and with representatives of your insurance company. Give the other party only your drivers license number, registration number and insurance information.
- Be cooperative with the police.
11. Seek hospital attention.
12. Speak with your Doctor or Chiropractor
13. Call your insurance company to report the accident.
14. Call: Kenneth A. Vercammen, Attorney At Law (732) 572-0500
When you need help the most, we will be ready to help you.
15. Never give a signed statement to the claims adjuster representing the other driver's insurance company. The same goes for a phone recording. They may be used against you in court.
16 . What you must always have in your car.....
a.- Drivers License
b.- Car Registration
c.- Insurance Card
d.- This Flyer on Accidents
e.- A Working Pen
Kenneth Vercammen & Associates Law Office helps people injured due to the negligence of others. We provide representation throughout New Jersey. The insurance companies will not help. Don't give up! Our Law Office can provide experienced attorney representation if you are injured in an accident and suffer a Serious Injury.
ACCIDENT VICTIMS RIGHTS REQUIRING INSURANCE TO PAY FOR MEDICAL/ CHIROPRACTIC TREATMENT
If injured in a car accident, it is important to immediately seek hospital and medical or chiropractic treatment. Under the New Jersey No Fault Act, car insurance companies are supposed to make timely payment of medical bills for the driver and passengers injured in their cars or other non-commercial vehicles. Doctors should let their patients know there are now minimum deductibles under the NJ Car No Fault Law (PIP). The following is helpful information for injured people and their doctors to obtain payment for bills.
1 Bills should be submitted to PIP & also to Major Medical and to Patient The medical provider must first submit the unpaid bills to the patient's car insurance carrier Personal Injury Protection (PIP carrier), and/or any Blue Cross/Blue Shield or other related medical provider, and fill out any documents required by the insurance company.
2. Deductibles There is an initial $250.00 deductible, and thereafter the car insurance company pays 80% of medical bills under a medical fee schedule established by the State Dept. of Insurance. After $5,000 the car insurance company pays 100% under the fee schedule, unless an independent medical exam (IME) recommends no further treatment. We recommend doctors adequately notify patients that they are the primary responsible person for payment, not insurance companies. They are also called the PIP (Personal Injury Protection) benefits under the No Fault Law. For unpaid portions after 80% or under the deductible, the chiropractor and also patient should submit portions of bills the car insurance does not pay to their major medical carrier (ex- Blue Cross, Connecticut General). Patients must be told that if they have the lawsuit/ verbal threshold, they cannot even sue the negligent driver for their unpaid medical bills.
3. 21 day notification to PIP A State Law signed in January, 1996 requires automobile insurers to be notified by the claimant or medical provider in writing within 21 days following commencement of treatment of injuries sustained in an accident for which personal injury protection medical expense benefits are claimed. NJSA 39:6A-5(b) In addition, under this new law P.L. 1995, c 407, every bill for such treatment shall be submitted to the insurer and submitted by the medical provider if within 30 days of the date that treatment was rendered. N.J.S.A. 39:6A-5E (a) If the treating doctor does not give proper notification, the insurer can reserve the right to deny payment of the claim, and the treatment provider is prohibited from seeking a payment directly from the insured NJSA 39:6A-5(d) New Jersey Auto Insurance Law p 157 (GANN 2000). It is highly recommended that all doctors, hospitals, MRI facilities and physical therapy centers also send complete copies of all bills to the patient. Unfortunately, too often doctors or MRI facilities fail to advise patients of high unpaid bills, then put the patient in collection after the case is over for the unpaid bill.
Patients should submit copies of all bills to your car insurance company even if they believe the doctor or medical providers may also have submitted the bill to PIP. The patient should later send the bill to major medical. If the doctor's office and injured person does not keep their attorney's office informed in writing of unpaid medical bills, the attorney will not have sufficient information to provide to the defendant's insurance company and the Court when trying to settle a case.
4. New Care paths in Car Accident Cases Starting in 1999, all medical providers must follow "care paths" and most non emergency treatment approved by the car insurance company. Please make sure all treatment and bills are pre- approved by the car insurance company. The treating doctor should also contact the car insurance company prior to MRI or extensive treatment.
5. Dispute Resolution to require Payment of Doctor and MRI Bills following a car accident The intent of the no fault statute is to require speedy payment of hospital and doctor bills and prevent delay by insurance companies. An aggrieved personal injury protection claimant is entitled to receive "prompt payment of medical expenses, lost wages, essential services, survivor benefits and funeral expenses... without having to wait the outcome of protracted litigation." Kubiak v. Allstate Insurance Co., 198 N.J. Super. 115, 119 (App. Div. 1984), cert. den. 101 N.J. 290; Hoqlin v. Nationwide Mutual Insurance Co., 144 N.J. Super. 475, 479 (App. Div. 1976). This, together with the right to interest on overdue payments (then N.J.S.A. 39:6A 5(c)) and the ability under Rule 4:42 9(a)(6) to recover counsel fees if successful in the action should sufficiently guard against situations where an injured party is subjected to protracted aggravated consequences because of an insurer's failure to pay. Kubiak 198 N.J. Super. 119 120.
Disputes between the insurer and claimant as to whether or not benefits are due under the PIP statute may be resolved, at the election of either the claimant or the insurer, either by binding arbitration or by civil litigation. NJSA 39:6A-5(i) and NJSA 39:6A-5.1a, New Jersey Auto Insurance Law p 159 (GANN 2000) If the insurance company continues to delay and fails to pay medical benefits, the insured can either file suit in the Superior Court or file a demand for dispute resolution with American Arbitration Association. In New Jersey their office is located 1 Executive Drive, Somerset, New Jersey 08873. Filing fees are $325, paid by either the doctor/treatment provider or the patient. The check should be payable to the American Arbitration Association.
5a. NJSA 39:6A-5.1 sets forth in detail how AAA dispute resolution proceeds Dispute resolution proceedings shall include disputes arising regarding medical expense benefits provided under PIP law and disputes as to additional first party coverage benefits required to be offered. Disputes involving medical expense benefits may include, but not necessarily be limited to, matters concerning (1) interpretation of the insurance contract; (2) whether the treatment or health care service which is the subject of the dispute resolution proceeding is in accordance with the provisions pip law or the terms of the policy; (3) the eligibility of the treatment or service for compensation; (4) the eligibility of the provider performing the treatment or service to be compensated under the terms of the policy or under regulations promulgated by the commissioner, including whether the person is licensed or certified to perform such treatment; (5) whether the disputed medical treatment was actually performed; (6) whether diagnostic tests performed in connection with the treatment are those recognized by the commissioner; (7) the necessity or appropriateness of consultations by other health are providers; (8) disputes involving application of and adherence to fee schedules promulgated by the commissioner; and (9) whether the treatment performed is reasonable, necessary, and compatible with the protocols provided for pursuant to P.L.1998, c.21 (C.39:6A-1.1 et al.).
The dispute resolution professionals may review the entire claims file of the insurer, subject to any confidentiality requirement established pursuant to State of federal law. All decisions of the dispute resolution professional shall be in writing, in a form prescribed by the commissioner, shall state the issues in dispute, the findings and conclusions on which the decision is based, and shall be signed by the dispute resolution professional. All decisions of a dispute resolution professional shall be binding. The dispute resolution organization shall provide for the retention of all documents used in dispute resolution proceedings under this section and section 25 of this amendatory and supplementary act, including the written decision for a period of at least five years, in a form provided by the commissioner, or such additional time as may be established by the commissioner. The written decisions of the dispute resolution professional shall be forwarded to the commissioner, who shall establish a record of the proceedings conducted under the dispute resolution procedure, which shall be accessible to the public and may be used as guidance in subsequent dispute resolution proceedings.
Under the pre-1999 no fault law, AAA arbitrations were heard by a single arbitrator chosen by AAA. The arbitrator would fix the time and place for each oral hearing. Persons having a direct interest in the arbitration are entitled to attend hearings. Parties may offer such evidence as is relevant and material and shall produce such additional evidence as the arbitrator may deem necessary to an understanding and determination of the dispute. The arbitrator may subpoena witnesses or documents on his own initiative or upon the request of any party. The arbitrator shall be the judge of the relevancy and the materiality of the evidence offered, and conforming to legal Rules of Evidence is not necessary. An arbitrator may receive and consider the evidence of witnesses by affidavit, but it shall give it only such weight as the arbitrator deems it entitled to after consideration of any objections made to its admission.
According to the New Jersey No Fault Automobile Arbitration rules published by the American Arbitration Association "if the claimant prevails in the arbitration proceeding, the arbitrator shall direct the insurer to pay all the costs of the proceeding, including reasonable attorney's fees.
5b. New Emergent- Relief Arbitration Under PIP Ordinarily, the minimum time for a regular arbitration is three months, including a 45 day initial waiting period and a 20 day notice of hearing. New Rule 3A of the American Arbitration Association's rules governing Personal Injury Protection Arbitration requires appointment of an arbitrator within one business day of the demand, the establishment of a schedule for consideration within two business days of the appointment and the granting of any relief within three additional days. 160 N.J.L.J. 373, NJ Law Journal May 1, 2000, p 5. The new rules were drafted by the state Department of Banking and Insurance. They went into effect April 1, 2000 and are posted on the AAA's Web site (www.adr.org/rules/state/nj no-fault rules.html).
6. SUIT IN SUPERIOR COURT INSTEAD OF ARBITRATION AND REIMBURSEMENT OF ATTORNEYS FEES In Miskofsky v. Ohio Casualty Insurance Co., 203 N.J. Super. 400 (Law Div. 1984) the court examined a Superior Court PIP suit and found medical benefits must be afforded. The court awarded attorneys fees, holding:
Counsel for plaintiff has submitted an affidavit of services based on an hourly rate of $100.00 which this court believes to be fair and reasonable. "I shall, therefore, award counsel fees against defendant and in favor of plaintiff in the amount of $1,790.00 as well as costs representing actual disbursements in the amount of $123.12 or a total of $1,913.12" Miskofsky at 416 417.
All other reported cases indicate attorneys fees should be awarded to Plaintiff's counsel. Additionally, the court in Olewinsky v. Aetna Casualty and Surety, 234 N.J. Super. 429 (Law Div. 1988) examined an application and request for attorney's fees for services rendered in connection with the personal injury claim. The plaintiff was pregnant at the time she was involved in an automobile accident. Defendant Aetna refused to pay certain medical expenses to the plaintiff and for her child. A claim was brought for medical payments. Both claims were settled at a conference in which the court participated. Upon motion of the plaintiff, the court in Olewinsky held: "based upon consideration of the underlying purpose of Rule [4:42 9(a)(6)] allowing attorney's fees as well as the nature of PIP claims and the realities of PIP settlements, this court concludes that attorney's fees should be allowed when a case is settled at anytime after the commencement of suit, for a sum which exceeds the original offer by the insured made prior to the institution of suit". Id. at 432. The court also noted in a footnote that attorney's fees are also allowed under the PIP statute, N.J.S.A. 39:6A 5, where an insured claimant prevails in an arbitration proceeding for PIP benefits.
The court concluded: The intent of the Rule allowing attorney's fees is to charge the insurer with additional expenses necessitated by an insured who is forced to bring suit for his claim. But, the realities of PIP settlements are that the insured must pay his own attorney fees. This effectively undermines the intent of the Rule. In order to implement the intent of the Rule, the definition of a "successful claimant" must be given liberal interpretation so as to encompass not only judgments and last minute settlements, but settlements effectuated prior to trial as well. Clearly, a claimant who obtains a judgment for the full amount of his claim is a "successful claimant". Similarly, a claimant who obtains a judgment for less than the full amount he seeks is also a "successful claimant" under the law. Therefore, logic should dictate that a claimant who obtains either a settlement for the full amount of his claim prior to the trial date or who obtains a settlement for a sum less than the full amount of his claim, but for more than that which he was offered prior to the institution of suit, should similarly be categorized as a "successful claimant". He is, after all, getting more than that which he would have obtained in the first place. In this respect, therefore, he is successful.
Finally, it is simply unfair to burden an insured with attorneys fees in order to receive moneys to which, at least in part, he was entitled to in the first place. Olewinsky . at 433 434.
The court in Olewinsky held that the plaintiff was entitled to an award of attorney's fees. The court held that the sum of $4,500.00 plus expenses, was fair and reasonable for payment of attorney's fees. Today, the statute N.J.S.A. 39:6A 5(c) requires that if a claimant prevails at arbitration, the insurer shall pay all costs, including reasonable attorney's fees. Thus, the imposition of attorney's fees is mandatory.
In Van Houten v. New Jersey Manufacturer's Insurance Co., 159 N.J. Super. 208 (Cty. Ct. 1978), aff'd 170 N.J. Super. 415 (App. Div. 1979), an insured who brought a cause of action against an insurer for failure to provide personal injury protection coverage for his medical expenses was determined to be a successful claimant and as provided by the Rule permitting attorney's fees. The court noted that a party need not prevail in every claim in order to be successful. Id. at 211. The court in Van Houten found persuasive plaintiff's argument that an insured is already a weak party to an insurance contract, and to make him hire an attorney throughout the trial or motion would put him at an even greater disadvantage. It is incongruous to require plaintiff to bypass a settlement offer and to proceed to trial in order to "earn" counsel fees, especially when a settlement and trial would have substantially achieved the same result. Also compelling plaintiff to try the case under these circumstances would be contrary to the strong public policy and judicial commitment that justice be served by encouraging the settlement of claims thereby avoiding or terminating litigation. Id. at 212. (Citations omitted). The court in Van Houten, concluded that had the plaintiff proceeded to trial, there is no doubt that the judge could have awarded a counsel fee. The court in Van Houten noted certain facts: 1. After the accident there was a substantial and unreasonable delay by defendant in conducting its investigation and providing a measure of coverage under No Fault. Such delay is distinguishable from mere tardiness by an insurer in forwarding payment. 2. This unnecessary delay on defendant's part induced plaintiff to seek the services of an attorney to intercede on his behalf, with the necessity of bringing suit. 3. After the complaint was filed, defendant continued to resist coverage under a color of contention which in this case was inappropriate. 4. And finally, after a period of eight months following the accident, defendant, just prior to trial, only then agreed to pay plaintiff an amount closely approximate to the original claim for loss of income coverage sought by the insured. 159 N.J. Super. at 215.
A denial of counsel fees, would thwart the underlying public policy that insurers not raise groundless disclaimers, abandon their insured and induce costly and protracted litigation. Van Houten at 215. To require an insured to fully litigate his claim to a successful adjudication essentially because his accumulated counsel fees cannot otherwise be obtained is contrary to the principles of the rule and the spirit underlying the No Fault Act. Rather, it was the opinion of the Van Houten court that an award of counsel fees would more equitably serve the principals upon which No Fault is founded. Id. at 216. The court noted "upon review of the discovery section of the No Fault Act it is clear that the burden of investigating personal injury claims was primarily with the insurance carrier and not with the insured. N.J.S.A. 39:6A 13 et seq. Under the Act the injured person is essentially required to "...sign all forms, authorizations, releases for information ...which may be necessary to the discovery of the above facts, in order to reasonably prove the injured person's losses. [N.J.S.A. 39:6A 13(f)]. The Van Houten court was satisfied that the plaintiff substantially complied with these obligations. The carrier is entitled to substantial discovery from the claimant's doctor, hospital, clinic, etc. or from the carrier's own physician. See N.J.S.A. 39:6A 13(b) and (d). The court noted if defendant encountered difficulty with such discovery, then it ought to have sought the appropriate relief from plaintiff's doctor and/or employer. N.J.S.A. 39:6A -13(g). Van Houten. at 217.
It has been uniformly held by the courts that Rule 4:42 9(a)(6) permitting an award of counsel fees against an insured's personal insurance company was adopted in order to prevent or discourage groundless disclaimers by the insurance carrier. See e.g. Tooker v. Hartford Accident and Indemnity Co., 136 N.J. Super. 572, 576 (App. Div. 1975). Maros v. TransAmerica Insurance Co., 143 N.J. Super. 307 (Law Div. 1976); New Jersey Manufacturer's Insurance Co. v. Consolidated Mutual Insurance Co., 124 N.J. Super. 598 (Law Div. 1973). In each of the above cases the courts deemed that counsel fees be awarded with a view towards equity for the insured.
7. Interest on unpaid bills N.J.S.A. 39:6A-5 (g) provides “personal injury protection coverage benefits shall be overdue if not paid within 60 days after the insurer is furnished written notice of the fact of a covered loss and the amount of same. N.J.S.A 39:6A-5E (h) added that all overdue payments shall bear simple interest at the percentage of interest prescribed by the Court Rules. An insurer can avoid the payment of interest only where it "has reasonable proof to establish that the insurer is not responsible for the payment..." The allowance of interest is not, as defendant argues, dependent upon the presence or absence of good faith on the part of the insurer. Ortiz at 508-509 The court also affirmed the awarding of the counsel fee.
8. Statute of Limitations Pursuant to N.J.S.A. 39:6A 13.1 an action for payment of benefits must be commenced not later than 2 years after the expense, or when in the exercise of the reasonable diligence insured the should know the loss was caused by the accident, or not later than 4 years after the accident, whichever is earlier; provided, if benefits have been paid before then an action for further benefits may be commenced not later than 2 years after the last payment of benefits. In Zupo v. CNA Ins. Co., 98 N.J. 30 (1984), the Supreme Court adopted the principal that when an automobile liability insurance carrier has made payments of personal injury protection (PIP) benefits in connection with a compensable injury and is chargeable with knowledge at the time of its last payment that the injury will probably require additional treatment in the future, then the "two years after payment" provision of N.J.S.A. 39:6A 13.1 will not bar an action brought within a reasonable time after rejection of a prompt claim for payment of additional medical expenses for such treatment. Id. at 31 32. Our New Jersey Supreme Court has often rejected a limitations defense where the defendant has contributed to the delay. Zaccardi v. Becker, 88 N.J. 245, 256 (1982)
CONCLUSION In conclusion, If the claimant is successful, case law, the statute and the AAA rules make counsel fees and interest available. Action must be taken to help the injured party have their medical bills paid prior to the expiration of any statute of limitation.
[This article was revised and copyright in 2000, undated from Kenneth Vercammen's original article that appeared in the New Jersey Law Journal August 29, 1994 (c)1994 New Jersey Law Journal ]
39:4-55. Action on steep grades and curves
|39:4-55. Action on steep grades and curves|
39:4-55. Action on steep grades and curves The driver of a motor vehicle traversing a steep grade or mountain highway shall hold the vehicle under control and as near the right-hand side of the highway as reasonably possible, and when traveling upon a down grade upon a highway, shall not coast with the gears of the vehicle in neutral. When approaching a curve where the view is obstructed within a distance of two hundred feet along the highway, he shall give audible warning with a horn or other warning device.
For information on points, fines, jail and suspension for this violation, go to http://www.njlaws.com/traffic_minimum_penalties.htm
2C:24-8. Abandonment, neglect of elderly person, disabled adult; third degree crime
1. a. A person having a legal duty to care for or who has assumed continuing responsibility for the care of a person 60 years of age or older or a disabled adult, who abandons the elderly person or disabled adult or unreasonably neglects to do or fails to permit to be done any act necessary for the physical or mental health of the elderly person or disabled adult, is guilty of a crime of the third degree. For purposes of this section "abandon" means the willful desertion or forsaking of an elderly person or disabled adult.
b. A person shall not be considered to commit an offense under this section for the sole reason that he provides or permits to be provided nonmedical remedial treatment by spiritual means through prayer alone in lieu of medical care, in accordance with the tenets and practices of the elderly person's or disabled adult's established religious tradition, to an elderly person or disabled adult to whom he has a legal duty to care for or has assumed responsibility for the care of.
c. Nothing in this section shall be construed to preclude or limit the prosecution or conviction for any other offense defined in this code or in any other law of this State.
L.1989,c.23,s.1; amended 1999, c.8.
AAA Attorney Fee Reimbursement Metuchen NJ
Attorney's Fees Reimbursement Service when you hire Ken Vercammen, Esq.In order to assure a fair hearing for members accused of certain traffic violations, the AAA Club offers an attorney's fees reimbursement service. The Club does not in any way practice law nor does it establish attorney's fees, since such fees will be dependent entirely upon the circumstances surrounding the particular case. The attorney must be chosen by the member and the attorney's fees must be paid in full by the member. The paid receipt should then be submitted to the Club for consideration of reimbursement based on the reimbursement schedule contained herein.
The attorney's fees reimbursement service is strictly for the purpose of helping defray the costs incurred when a member retains the services of an attorney to assist in the defense of charges of common moving violations resulting from the operation of a motor vehicle where the member feels unjustly accused, and desires a fair and impartial trial.
Schedule of Reimbursable Attorney's Fees (This schedule provides the maximum amount to be reimbursed per listed violation for regular AAA members, as well as for AAA members who have the additional benefit of AAA PLUS, provided all conditions for eligibility have been satisfied.)
Regular PLUS Members Members For defense of Reckless Driving or Endangerment, not exceeding 35.00 400.00
If appealed not more than additional 35.00 200.00
For defense of alleged moving violations of traffic laws, not exceeding 25.00 100.00
For lawyer's representation at hearings on suspension or revocation of license or registration by the Dept. of Motor Vehicles, up to 0 100.00
AAA member Kenneth Vercammen, Esq. is available for representation. To schedule an confidential consultation, please contact The Law Office of KENNETH A. VERCAMMEN, 732-572-0500