On appeal from the Superior Court of New Jersey, Law Division, Union County.
Approved for Publication March 6, 1997. As Amended March 12, 1997.
Before Judges Shebell, Baime and Braithwaite. The opinion of the court was delivered by Shebell, P.j.a.d.
The opinion of the court was delivered by: Shebell
The opinion of the court was delivered by
Plaintiff, Tamika Hall, appeals the dismissal on summary judgment of her complaint which alleged that, as a result of defendant Legious Minder's negligence while operating the vehicle of Deborah Lowenstein, plaintiff was seriously injured when the vehicle she was riding in struck a parked vehicle. Plaintiff joined the Unsatisfied Claim and Judgment Fund Board ("Fund") and Prudential Insurance Company ("Prudential") as defendants and alleged that she was wrongly denied benefits by them. The defendants moved for summary judgment, which motions were granted following oral argument. Plaintiff appeals only from the order granting summary judgment to the Fund.
On March 26, 1993, plaintiff was an occupant in a vehicle driven by Minor which, shortly after he picked her up at her home, was involved in a collision. Plaintiff sustained injuries to her head and face and was taken to the hospital. Minor fled the scene, and his whereabouts are unknown. Neither plaintiff, nor her father, had insurance to cover her injuries, and her medical bills are alleged to exceed $55,000.
Plaintiff filed an application for Personal Injury Protection ("PIP") benefits with the Fund. The application was denied on the assertion that plaintiff was ineligible under N.J.S.A. 39:6-70(c), since she was an occupant in a stolen vehicle. Plaintiff also filed a claim with Prudential, since the vehicle was insured by that company, but that claim was similarly denied.
The motion Judge in granting the Fund's motion for summary judgment stated:
New Jersey Statute 39:6-70(c) specifically states that a claimant to the Fund must be prepared to show that, "he was not at the time of the accident a person: (1) operating or riding in a vehicle which he had stolen or participated in stealing or, (2) operating or riding in a motor vehicle without the permission of the owner ....["]
Clearly, section (c)(1) is not applicable to the case at bar. The primary issue is whether (c)(2) can operate to bar plaintiff's claim against the Fund. Because the car was stolen it is clear that anyone riding therein would do so without the owner's permission.
The Judge held that plaintiff could not recover from the Fund under section (c)(2) as she did not have the permission of the owner to ride in the vehicle.
The sole issue on appeal is the correct application of N.J.S.A. 39:6-70(c). This section reads in pertinent part, as follows:
The court shall proceed upon such application, in a summary manner, and, upon the hearing thereof, the ...