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Montoya v. Gateway Insurance Co.

Decided: May 7, 1979.


On appeal from Superior Court, Law Division, Essex County.

Fritz, Bischoff and Morgan. The opinion of the court was delivered by Morgan, J.A.D.


Does an illegal alien enjoy access to our courts and if so, does his illegal status bar him from enforcing the personal injury protection portions of his automobile liability policy? These issues, presented for our resolution, will be considered in the following factual and procedural context.

Plaintiff entered this country on November 6, 1971 as a "visitor for pleasure." His status thereafter is in some doubt, evidence regarding any subsequent arrangements for his presence in this country being totally absent from the record. Because the trial judge, however, viewed plaintiff's status as irrelevant to the issues, the legality vel non of his presence here was never adjudicated. In fact, the matter was decided on the assumption that plaintiff was, at all pertinent times, an illegal alien. Soon after his arrival in this country plaintiff secured employment. His first two jobs were of

brief duration. He worked at the third job for over a year, earning in excess of $125 a week, and was so employed on December 21, 1973 when he was seriously injured in an automobile accident.

There was in full force and effect on the date of his accident a policy of automobile liability insurance issued by defendant Gateway Insurance Company covering him, as named insured, not only for any liability imposed on him but for mandatory personal injury protection as well. Defendant Gateway, and its successor, The New Jersey Property Liability Insurance Guaranty Association, admit issuance of the policy and that it provided coverage on the date in question. The trial judge found, without there being substantial dispute, that Gateway paid all of plaintiff's medical and hospital expenses incurred up to October 8, 1974 and income continuation benefits in the amount of $823. Further payments on account of income were refused, as were all medical bills incurred after plaintiff returned to his native Colombia, South America.

Plaintiff brought suit for the benefits denied. Defendants have taken the position that they bear no liability on the policy because plaintiff's status as an illegal alien bars his recovery. In addition, they contend, in defense of this suit, that plaintiff's status deprives him of access to the courts. Both contentions were rejected by the trial judge, who granted plaintiff's motion for summary judgment for $6,074 representing unpaid medical bills, $15,412.82 for income continuation,*fn1 which sum includes statutory interest, $469.50 costs and $2,750 counsel fees. Defendants appeal.

Although New Jersey has not had occasion to address the issue and the United States Supreme Court has made no pronouncement thereon, a well established body of law holds that illegal aliens have rights of access to the courts and

are eligible to sue therein to enforce contracts and redress civil wrongs such as negligently inflicted personal injuries. Arteaga v. Literski , 83 Wis. 2d 128, 265 N.W. 2d 148, 149 (Sup. Ct. 1978); Torres v. Sierra , 90 N.M. 8, 89 N.M. 441, 553 P. 2d 721, 724 (Ct. App. 1976), cert. den. 558 P. 2d 620 (Sup. Ct. 1976); Commercial Standard Fire and Marine Co. v. Galindo , 484 S.W. 2d 635, 637 (Tex. Ct. App. 1972); Martinez v. Fox Valley Bus Lines , 17 F. Supp. 576, 577 (N.D. Ill. 1936). These holdings are premised on the Fifth and Fourteenth Amendments to the United States Constitution, both of which use the word "person," not "citizen," to describe the beneficiaries of the described rights and receive further support from congressional recognition in 42 U.S.C.A. ยง 1981 in the following language:

All persons within the jurisdiction of the United States shall have the same right * * * to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings. * * *.

The public policy of discouraging illegal immigration will not be subverted by according such aliens access to our courts. It cannot be supposed that anyone illegally enters this country for the purpose of initiating litigation. Indeed, forbidding aliens access to the courts may have precisely the reverse effect. Potential employers may well be encouraged to employ such aliens if they become aware of the alien's inability to lodge claims against them for wages or on account of injuries sustained. See Gates v. Rivers , 515 P. 2d 1020 (Alaska Sup. Ct. 1973). Insurance companies may well be encouraged to insure them in anticipation of being able to renege with ...

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