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Rivera v. Fortunato

July 12, 1995

CARMELO RIVERA, PLAINTIFF,
v.
SAMUEL FORTUNATO, COMMISSIONER OF INSURANCE OF THE STATE OF NEW JERSEY, UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, JOHN DOE AND RICHARD ROE, SAID NAMES BEING FICTITIOUS, DEFENDANTS.



Miniman, J.s.c.

The opinion of the court was delivered by: Miniman

OPINION

MINIMAN, J.S.C.

Defendants Samuel Fortunato, the New Jersey Commissioner of Insurance (the Commissioner), and the Unsatisfied Claim and Judgmemt Fund Board (the Board) move for summary judgment under the verbal threshold contained in § 8 of the New Jersey Automobile Reparation Reform Act (the Reparation Reform Act). N.J.S.A. 39:6A-1 to -35. No reported decision has been found which addresses this issue in the context of an action against the Commissioner seeking to recover noneconomic loss in connection with injuries sustained in a hit-and-run accident. For the purpose of this motion only, defendants do not dispute the relevant facts.

Plaintiff Carmelo Rivera (Rivera) was a pedestrian on January 18, 1992, when he was struck by a motor vehicle which left the scene of the accident without being identified. Rivera filed a statement of eligibility with the Board in which he certified to the elements necessary to make a claim against the Unsatisfied Claim and Judgment Fund (the Fund) for injuries sustained in a hit-and-run accident. He also indicated that he sought personal injury protection benefits (PIP benefits) from the Fund. *fn1 Thereafter, Rivera filed suit against the Commissioner and the Board *fn2 to recover damages for his noneconomic losses. *fn3 This court finds that the verbal threshold contained in N.J.S.A. 39:6A-8 does not apply to victims of hit-and-run accidents seeking compensation from the Fund. *fn4

The New Jersey Unsatisfied Claim and Judgment Fund Law *fn5 (the Fund Law) was enacted in 1952 by the same legislature which created the New Jersey Motor Vehicle Security-Responsibility Law. *fn6 Both statutes have been amended on several occasions over the past 40 years. In construing the Fund Law, we are mindful that:

The purpose of the Fund is to provide a measure of relief to persons who sustain losses or injury inflicted by financially irresponsible or unidentified operators of motor vehicles, where such persons would otherwise be remediless. Corrigan v. Gassert, 27 N.J. 227, 142 A.2d 209 (1958), Dixon v. Gassert, 26 N.J. 1, 138 A.2d 14 (1958). The statute is to be liberally construed to advance the remedy, due regard being had to the protection of the Fund against fraud and abuse and to the fulfillment of the essential legislative policy. Giles v. Gassert, 23 N.J. 22, 34, 127 A.2d 161 (1956). The Fund ... is regarded as a trust fund for the stated purposes and the cost of administration. Wormack v. Howard, 33 N.J. 139, 143, 162 A.2d 846 (1960). The public interest demands that the Fund ... be administered in a fashion to assure that only those persons legitimately entitled to participate in its benefits are paid therefrom.

[ Douglas v. Harris, 35 N.J. 270, 279, 173 A.2d 1 (1961).]

The Fund provides benefits to New Jersey residents and certain others who are injured by persons operating uninsured or unidentified motor vehicles so long as the injured person does not have uninsured motorist benefits available under an applicable automobile liability policy of insurance (qualified persons). N.J.S.A. 39:6-62. Two classes of qualified persons are created by the Fund Law--persons injured by identified uninsured motorists from whom damages cannot be secured and persons injured in hit-and-run accidents. See N.J.S.A. 39:6-69 and N.J.S.A. 39:6-78.

With regard to hit-and-run accidents, the Fund Law provides that any qualified person may bring an action against the Commissioner *fn7 for personal injury or death when the identity of the motor vehicle and its operator cannot be ascertained. *fn8 N.J.S.A. 39:6-78. The Fund Law goes on to provide that "no judgment against the Commissioner shall be entered in such an action unless the court is satisfied, upon the hearing of the action," that (a) the plaintiff has given the Board written notice of intention to make a claim within the time allowed by N.J.S.A. 39:6-65, (b) the injuries are not covered by any workers' compensation law, (c) the plaintiff was not the owner of an uninsured motor vehicle at the time of the accident nor operating a motor vehicle in violation of an order of suspension or revocation, (d) the plaintiff has a cause of action against the operator or owner of the hit-and-run vehicle, (e) all reasonable efforts have been made to identify the motor vehicle and its operator, and (f) the action is not brought on behalf of an insurer under the circumstances prohibited by N.J.S.A. 39:6-70(1). N.J.S.A. 39:6-78(a)-(f).

The Commissioner, in seeking summary judgment dismissing the noneconomic claims of Rivera, does not argue that the proofs with respect to any of these six statutory criteria are fatally deficient. Rather, he argues that qualified persons injured in hit-and-run accidents who are eligible for PIP benefits must also demonstrate that the injuries they sustained satisfy the requirements of the verbal threshold established in N.J.S.A. 39:6A-8. To support this argument, the Commissioner relies upon N.J.S.A. 39:6-70(n), *fn9 which provides as follows:

In order to recover for noneconomic loss, as defined in [N.J.S.A. 39:6A-2] for accidents to which the benefits of [N.J.S.A. 39:6-86.1 *fn10 and 86.4 *fn11] apply, the injured person shall have sustained an injury described in subsection a. of [N.J.S.A. 39:6A-8).

[N.J.S.A. 39:6-70(n).)

In determining whether the Fund Law requires application of the verbal threshold to qualified persons injured in hit-and-run accidents, the court must view "all of the sections of the statute as standing in pari materia and must consider them together." Douglas v. Harris, supra, 35 N.J. at 281. The court must also "construe the act in a common sense fashion consonant with the purpose of precluding fraud and abuse and promoting 'fulfillment of the essential legislative policy.'" Garcia v. Snedeker, 199 N.J. ...


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