The opinion of the court was delivered by: Kirsten
This matter comes before the court on defendant Unsatisfied Claim and Judgment Fund's ("UCJF") motion for summary judgment dismissing plaintiff's claim for failure to meet the verbal threshold, N.J.S.A. 39:6A-8.
On November 5, 1995, plaintiff, then 26, was a passenger in a car owned by Kim Hall and driven by defendant Tracey Eley on Route 169 in Bayonne. A car allegedly owned by defendant Express Transportation rear-ended plaintiff's car and then left the scene. No police were called.
Plaintiff sued the driver of his car, the driver of Express Trucking, Express Trucking, Hall's insurance carrier (MTF), the UCJF, and Drew Karpenski in his capacity as Commissioner of Insurance. In plaintiff's complaint, he sought PIP benefits from Hall's carrier as well as PIP benefits from the UCJF on the ground that the Hall car was uninsured at the time of the accident. Plaintiff also sought non-economic damages from the UCJF. Plaintiff explained in his brief opposing this motion that he has been unable to confirm that Express Transportation owned the truck involved in the accident, and it is likely that this will be considered a hit-and-run accident.
Defendant UCJF brought this motion to dismiss plaintiff's claim for non-economic damages on the grounds that plaintiff has not met the verbal threshold. Plaintiff does not challenge the defendant's motion on the ground that plaintiff has met the verbal threshold, but rather on the ground that he is not subject to the verbal threshold as a victim of a hit-and-run driver. Plaintiff relies on Rivera v. Fortunato, 285 N.J. Super. 168, 666 A.2d 619 (Law Div. 1995), which he notes was cited by Sumner v. Unsatisfied Claim and Judgment Fund, 288 N.J. Super. 384, 672 A.2d 731, (App. Div. 1996) (A-1249-95T5).
For reasons described below, this court does not follow Rivera, supra, and finds that plaintiff is subject to the verbal threshold. Additionally, Sumner, supra, did not address the issue of whether a victim of a hit-and-run accident was entitled to claim non-economic damages without satisfying the verbal threshold.
The UCJF is a fund established under N.J.S.A. 39:6-61 to -91, et seq., the Unsatisfied Claim and Judgment Fund Law ("UCJF"), to provide benefits to those injured as a result of motor vehicle accidents where the injured party has no recourse to insurance coverage. This fund provides payment where there is an identified owner or operator and the judgment is not collectible (N.J.S.A. 39:6-69 to -72) and where the owner or operator is unidentified (N.J.S.A. 39:6-78 to -79). Personal Injury Protection ("PIP") benefits are provided under N.J.S.A. 39:6-86.1-86.6, et seq., to either category of claimant.
A claimant under the UCJF must establish that he is a qualified person. A qualified person is defined in N.J.S.A. 39:6-62 and includes, for the purposes of this Discussion, a state resident for whom there is no other insurance for a motor vehicle accident available. In order to collect benefits from the UCJF, a qualified victim of an identified uninsured driver must meet the criteria established in N.J.S.A. 39:6-70. A qualified victim of a hit-and-run driver must meet the criteria established in N.J.S.A. 39:6-78.
The section of the statute dealing with recovery for non-economic loss from the UCJF, the basis for defendant's motion, is N.J.S.A. 39:6-70(n):
In order to recover for his non-economic 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).
In order to recover for non-economic damages, a person receiving PIP benefits from the UCJF must meet the verbal threshold requirements set forth in the companion statute N.J.S.A. 39:6A-1, to - 35, New Jersey Automobile Reparation Reform Act.
N.J.S.A. 39:6-70(n) is found in the section of the Unsatisfied Claim and Judgment Fund Law dealing with identified uninsured motorists. Nevertheless, a review of the UCJF Law indicates that this section ...