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Jimenez v. Baglieri

January 29, 1998

JESENIA JIMENEZ, PLAINTIFF-RESPONDENT,
v.
WILLIAM BAGLIERI, JOHN DOE (NAME BEING FICTITIOUS), ABC CORP. (NAME BEING FICTITIOUS) AND MATERIAL DAMAGE ADJUSTMENT CORP., AS SERVICING CARRIER FOR THE MARKET TRANSITION FACILITY, DEFENDANTS, AND SAMUEL FORTUNATO, COMMISSIONER OF INSURANCE AND UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, DEFENDANTS-APPELLANTS.



Argued October 20, 1997 -- Decided January 29, 1998

On certification to the Superior Court, Appellate Division, whose opinion is reported at 295 N.J. Super. 162 (1996).

Chief Justice Poritz PRESIDING

The opinion of the court was delivered by: The opinion of the Court was delivered by Garibaldi, J.

This appeal presents the issue of whether individuals injured by hit-and-run motorists must satisfy the verbal threshold pursuant to N.J.S.A. 39:6-70(n), to recover non-economic damages from the Unsatisfied Claim and Judgment Fund (Fund or UCJF). We conclude the Legislature intended that claimants injured in hit-and-run accidents must satisfy the verbal threshold to recover non-economic damages from the Fund.

I.

On July 2, 1991, while on her way to work, plaintiff Jesenia Jimenez was struck by a car. The car slowed momentarily, allowing plaintiff to catch a glimpse of the driver, but did not stop. Plaintiff got up and walked to her bus stop, where she caught a bus and went to work. Within minutes of her arrival, she told her employer about the incident and he told her to call the police. Plaintiff's employer then took her to the hospital because she was complaining of a headache, dizziness, and leg and back pain. The hospital took x-rays and found no fractures. The emergency room physicians treated her with ice packs and analgesics for her head, back, and leg pain, and released her.

Subsequently, plaintiff sought treatment from Dr. Gary Bozian, a chiropractor. He treated her with massage therapy and spinal stimulation, and eventually referred her to Dr. John Burger, a neurologist, for tests related to her continuing headaches. Dr. Burger concluded that plaintiff would continue to suffer chronic periodic episodes of muscle spasm following physical or stressful events.

Based on a witness's partial identification of the license plate, plaintiff filed suit against William Baglieri, as the operator of the vehicle that had injured her. Plaintiff also named Samuel Fortunato, State of New Jersey Commissioner of Insurance (Commissioner), and the Unsatisfied Claim and Judgment Fund Board as defendants pursuant to N.J.S.A. 39:6-78. Plaintiff sought medical expenses from the Fund and personal injury protection benefits from the Material Damages Adjustment Corporation (MDA), the servicing carrier for Baglieri's insurance provider. After it was established that neither Baglieri nor his car were involved in the accident, the Law Division granted summary judgment in favor of Baglieri and MDA.

The Commissioner and the Fund filed a motion for summary judgment, asserting that the claim should be dismissed because plaintiff failed to present sufficient evidence of injuries satisfying the verbal threshold, as required by N.J.S.A. 39:6-70(n) (Section 70(n)). The court denied that motion and held as a matter of law that the verbal threshold did not apply.

A jury trial on the liability portion of the case resulted in a judgment against the unknown tortfeasor, holding that person one hundred percent liable for the accident and plaintiff's injuries. The damages portion of the case was set for trial on October 13, 1995; however, it was rescheduled for November 1, 1995 because plaintiff's attorney was involved in an automobile accident. On November 1, 1995, defendants moved for a one-day adjournment because their medical expert was unavailable to testify on the rescheduled trial date. The court denied the motion. The jury returned a verdict in favor of plaintiff in the amount of $25,000. On November 17, 1995, judgment was entered on behalf of plaintiff in the reduced amount of $15,000 pursuant to N.J.S.A. 39:6-73. Subsequently, an amended judgment was entered pursuant to N.J.S.A. 39:6-69, requiring the Fund to pay personal injury protection (PIP) benefits to plaintiff.

Defendants appealed, and the Appellate Division affirmed the trial court's denial of the Fund's summary judgment motion. The panel, relying on Rivera v. Fortunato, 285 N.J. Super. 168 (Law Div. 1996), concluded that the verbal threshold does not apply to plaintiffs injured by hit-and-run motorists. 295 N.J. Super. 162 (1996). The court also held that the trial court had abused its discretion in denying the one-day adjournment, and therefore, the court remanded the case for a new trial on damages.

We granted the Commissioner's petition for certification, 148 N.J. 461 (1997).

II.

In 1952, as part of an automobile insurance reform package, the Legislature enacted the Unsatisfied Claim and Judgment Fund Law, L. 1952, c. 174 (codified at N.J.S.A. 39:6-61 to -91) (Fund Act), *fn1 to provide for the establishment, maintenance, and administration of a fund for the payment of damages for personal injuries or property damage arising out of accidents involving uninsured or unknown owners of automobiles. Only claimants who are statutorily qualified under N.J.S.A. 39:6-62 may recover benefits under the Fund. A "qualified person" is defined as one who lacks recourse to uninsured motorist benefits under an applicable insurance policy. N.J.S.A. 39:6-62. Benefits are provided to two classes of individuals, those injured by known uninsured motor vehicles, N.J.S.A. 39:6-69, and those injured by hit-and-run drivers, N.J.S.A. 39:6-78.

That plaintiff is a "qualified person" to recover benefits under the Fund Act is undisputed. The issue is whether, as a victim of a hit-and-run driver, she is subject to the verbal threshold requirements established in N.J.S.A. 39:6A-8. The Commissioner asserts that Section 70(n) applies and, therefore, for an eligible claimant injured in a hit-and-run accident to recover non-economic damages from the UCJF, he or she must have suffered an injury that satisfies the verbal threshold. Plaintiff asserts, however, that Section 70(n), and thus the verbal threshold, is limited in application to cases involving known uninsured drivers, and does not ...


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