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Wilson v. Unsatisfied Claim and Judgment Fund Board

Decided: October 17, 1986.

GAYNELLE WILSON, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR FREDERICK WILSON, PLAINTIFF-RESPONDENT,
v.
UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, DEFENDANT-APPELLANT



On appeal form the Superior Court, Law Division, Burlington County.

Dreier, Shebell and Stern. The opinion of the court was delivered by Shebell, J.A.D.

Shebell

The Unsatisfied Claim and Judgment Fund Board appeals an order that it pay personal injury protection benefits in the stipulated sum of $1,838.88 to an infant passenger of an uninsured automobile struck in the rear by an insured bus owned by the Township of Moorestown.

Plaintiff's claim for pain and suffering against the Township and the uninsured driver was submitted to arbitration, pursuant to the New Jersey Automobile Arbitration Program, which found the Township solely liable and awarded damages of $20,000. Judgment was entered on that award by consent of

the parties. The parties agreed there were no factual issues in the case and each moved for summary judgment in the Law Division. Plaintiff prevailed. 213 N.J. Super. 594.

The issue before us is whether a person injured in a motor vehicle accident caused by the negligence of an insured operator of another vehicle may nevertheless recover personal injury protection benefits from the Fund. We answer this question in the affirmative and affirm the judgment of the Law Division.

N.J.S.A. 39:6-86.1 as amended by L. 1983, c. 362 ยง 3 provides in pertinent part:

When any person qualified to receive payments under the provisions of the "Unsatisfied Claim and Judgment Fund Law"*fn1 suffers bodily injury or death through being struck, as a pedestrian, as defined in section 2 of P.L. 1972, c. 70 (C. 39:6A-2), by a motor vehicle, including an automobile as defined in section 2 of P.L. 1972, c. 70 (C. 39:6A-2), and a motorcycle, or by an object propelled therefrom or arising out of an accident while occupying, entering into, alighting from, or using an automobile, registered or principally garaged in this State for which personal injury protection benefits under the "New Jersey Automobile Reparation Reform Act," P.L. 1972, c. 70 (C. 39:6A-1 et seq.), or section 19 of this 1983 amendatory and supplementary act,*fn2 would be payable to such person if personal injury protection coverage were in force and the damages resulting from such accident or death are not satisfied due to the personal injury protection coverage not being in effect with respect to such accident, then in such event the Unsatisfied Claim and Judgment Fund shall provide under the following condition, the following benefits:

Provided, however, that no benefits shall be paid under this section unless the person applying for benefits has demonstrated: that he is not disqualified by reason of the provisions of subsection (a), (c), (d) or (l) of section 10 of P.L. 1952, c. 174 (C. 39:6-70), or any other provision of law.

Prior to the 1983 amendment, footnote 1 specifically referred to Sections 39:6-61 to 39:6-91. This convinced the Law Division in Pearman v. Unsatisfied Claim and Judgment Fund Board, 185 N.J. Super. 397, 401 (Law Div.1982) that a "person qualified" to recover PIP benefits from the Fund meant the person responsible for the accident must have been uninsured because a literal reading of that earlier footnote would include the requirements of N.J.S.A. 39:6-70(f). However, the 1983

amendment expressly provides that the only subsections of 39:6-70 which will disqualify an applicant are (a) persons covered by the worker's compensation laws, (c) those riding in stolen motor vehicles or operating vehicles without the permission of the owner, (d) the owner or registrant of an uninsured motor vehicle or operating a motor vehicle in ...


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