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Sumner v. Unsatisfied Claim and Judgment Fund

March 15, 1996

SHADAWN SUMNER, PLAINTIFF-APPELLANT,
v.
UNSATISFIED CLAIM AND JUDGMENT FUND AND CLAUDIA S. PENA, DEFENDANTS-RESPONDENTS, AND ANDRE M. SMITH A/K/A JOHN L. WHITAKER AND LUIS F. MEJIA, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.

Approved for Publication March 15, 1996.

Before Judges King, Landau and Kleiner. The opinion of the court was delivered by Kleiner, J.A.D.

The opinion of the court was delivered by: Kleiner

The opinion of the court was delivered by KLEINER, J.A.D.

Defendant Unsatisfied Claim and Judgment Fund was granted summary judgment on plaintiff Shadawn Sumner's complaint seeking damages for noneconomic loss sustained in an automobile collision on August 16, 1992. On that date, plaintiff was a passenger in an uninsured motor vehicle owned and operated by defendant Andre Smith. Smith's vehicle collided with a vehicle ownedby defendant Claudia S. Pena and operated by defendant Luis F. Mejia. On the return day of defendant's motion, the parties stipulated that "if plaintiff's claim for noneconomic damages are subject to the 'verbal threshold,' her injuries do not satisfy the 'verbal threshold' requirements." Plaintiff contended that she is not subject to the "verbal threshold." The motion Judge, relying upon N.J.S.A. 39:6-70(n), disagreed and granted defendant's summary judgment motion. We granted plaintiff's motion for leave to appeal to review that decision. We affirm.

The New Jersey Unsatisfied Claim and Judgment Fund Law, N.J.S.A. 39:6-60 to -91 (the Fund Law), was enacted in 1952 "to provide a measure of relief for persons who sustain losses or injury inflicted by financially irresponsible or unidentified owners or operators of motor vehicles, where such persons would otherwise be remediless." Corrigan v. Gassert, 27 N.J. 227, 233, 142 A.2d 209 (1958) (citing Dixon v. Gassert, 26 N.J. 1, 138 A.2d 14 (1958)).

The original legislative intent, despite amendments to the law since 1952, is still viable. In Unsatisfied Claim and Judgment Fund v. N.J. Mfrs. Ins. Co., 138 N.J. 185, 649 A.2d 1243 (1994), the Supreme Court noted:

However, the statute does not reflect a goal of making every claimant completely whole or compensating all victims; rather, it seeks to offer some measure of relief to those who come within the class intended to be protected, to prevent a claimant from being forced to absorb the entire economic loss caused by the accident.

[ Id. at 189 (citing Esdaile v. Hartsfield, 245 N.J. Super. 591, 595, 586 A.2d 334 (App. Div. 1991).]

Although any person injured by a financially irresponsible or unidentified driver is entitled to file suit to recover damages from a tortfeasor, only those tort claimants who are statutorily qualified under N.J.S.A. 39:6-62 may recover payment from the Unsatisfied Claim and Judgment Fund Board. N.J.S.A. 39:6-70. See Lopez v. Santiago, 120 N.J. Super. 394, 294 A.2d 272 (Dist. Ct.), rev'd on other grounds, 125 N.J. Super. 268, 310 A.2d 500 (App. Div. 1972). "The Fund is not intended to give financial relief to every claimant. The claimant must be one intended to be protected and he must clearly demonstrate that he belongs to a class for whose benefit the Fund was established." Id. at 398.

One statutory qualification is N.J.S.A. 39:6-70(n), which provides:

In order to recover for noneconomic loss, as defined in section 2 of P.L.1972, c. 70 (C. 39:6A-2) for accidents to which the benefits of sections 7 and 10 of P.L.1972 c. 198 (C. 39:6-86.1 and C. 39:6-86.4) apply, the injured person shall have sustained an injury described in subsection a. of section 8 of P.L.1972, c. 70 (C. 39:6A-8).

Plaintiff argues that N.J.S.A. 39:6-70(n) was effective October 4, 1983 and was legislatively designed to correlate with N.J.S.A. 39:6A-8a, which was enacted at the same time and effective on that same date. As originally enacted, N.J.S.A. 39:6A-8a provided that a party could not recover for soft tissue injury unless treatment was valued at $200 or more, exclusive of hospital expenses, x-rays, and other diagnostic medical expenses. Rivera v. Fortunato, 285 N.J. Super. 168, 178, 666 A.2d 619 (Law Div. 1995). Plaintiff correctly asserts that if she had been injured after October 4, 1983, she would have been subject to the provisions of N.J.S.A. 39:6A-8a and would have been entitled to recover for her noneconomic loss, provided her medical expenses exceeded $200, "exclusive of hospital expenses, x-rays and other diagnostic medical expenses." Id. She would have been entitled to recover payment from the Fund pursuant to N.J.S.A. 39:6-70(n).

Plaintiff acknowledges that in 1988, N.J.S.A. 39:6A-8 was amended effective January 1, 1989. The 1988 amendments to the New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1 to -35 (No Fault Law) applied the "verbal threshold" to all insureds unless they elected otherwise, thereby foreclosing those insureds from recovery in tort for noneconomic damages except in nine specified categories. N.J.S.A. 39:6A-8a. See N.J. Mfrs., supra, 138 N.J. at 188. Plaintiff contends that prior to the 1988 amendments, her status as a person who was not the owner of an automobile and not the spouse or ...


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