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Mena v. Unsatisfied Claim and Judgment Fund

December 30, 1998

ALICIA MENA AND AYDEE GUEVERA BY HER G/A/L ALICIA MENA, PLAINTIFFS-RESPONDENTS,
v.
UNSATISFIED CLAIM AND JUDGMENT FUND, DEFENDANT-RESPONDENT, AND NESTAR MENA, MARCO VILLACIS, THE MARKET TRANSITION FACILITY OF NEW JERSEY BY POLICY MANAGEMENT CORPORATION, JOHN DOES 1-10, ABC CORPORATION & XYZ CORPORATION, DEFENDANTS.



Before Judges Pressler, Brochin, and Kleiner.

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

[9]    Submitted November 4, 1998

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

Defendant Unsatisfied Claim and Judgment Fund Board ("UCJF") appeals from a judgment *fn1 following a bench trial that permitted plaintiffs Alicia Mena ("Alicia"), individually and as guardian ad litem of her daughter, Aydee Guevera ("Aydee"), to recover personal injury protection ("PIP") benefits for injuries sustained in an automobile collision on April 26, 1992. The Judge concluded that plaintiffs were entitled to a judgment despite the facts that: (1) plaintiffs were passengers in an uninsured motor vehicle operated by defendant Nestar Mena ("Nestar"), the husband of Alicia and father of Aydee; *fn2 (2) Alicia's Notice of Intention to Make a Claim against the UCJF, though timely filed, failed to assert a potential claim for PIP benefits; (3) Aydee's Notice of Intention to Make a Claim against the UCJF was untimely filed; and (4) plaintiffs' claims for PIP benefits were asserted in an amended complaint filed after the two-year statute of limitations. Although we do not agree entirely with the trial Judge's reasoning as articulated in a written opinion, we agree with the ultimate Conclusion. Since appeals are taken from judgments and not from opinions, see R. 2:2-3a(1), we affirm.

I.

On April 26, 1992, Alicia and her daughter Aydee, then age fourteen, were passengers in a motor vehicle operated by Nestar when it collided with a motor vehicle owned by defendant Marco Villacis. The operator of the Villacis vehicle fled the scene. *fn3 Alicia, Aydee, and Nestar were injured in this collision.

Prior to April 26, 1991, Nestar had purchased automobile liability insurance through an insurance broker, defendant Cardona Travel and Insurance Agency ("Cardona"). Nestar's application for insurance was forwarded to defendant Market Transition Facility ("MTF") and was assigned for servicing to defendant PMC Insurance Services ("PMC"). PMC utilized the services of defendant Hertz Claim Management ("HCM") to process claims asserted against PMC. Prior to April 26, 1992, Nestar paid the renewal premiums on this PMC policy to Cardona and received from Cardona an insurance identification card for the renewal period. After the accident, Alicia mailed a Notice of Intention to Make a Claim (the "notice") against the UCJF on April 30, 1992. *fn4 The notice attached a copy of the police report prepared at the time of the collision which identified Alicia and Aydee as injured passengers in Nestar's motor vehicle. Alicia's notice did not indicate that she was injured or that her claim encompassed a claim for PIP benefits. On May 7, 1992, UCJF received a second Notice of Intention to Make a Claim from Alicia and another copy of the police report. *fn5

We infer from the record that Alicia, when notifying UCJF of her intentions, also notified PMC of her prospective claim. That is the import of a letter sent by HMC to Alicia's counsel on July 1, 1992, stating:

"This acknowledges your correspondence of April 30, 1992. Please be advised that we cannot verify coverage for the individual [Nestar] alleged to have a policy with us. Therefore, we will not be able to consider your claim." *fn6

On December 10, 1992, the UCJF received a Notice of Intention to Make a Claim on behalf of Aydee. This notification indicated that Aydee was injured and described the injuries as "head, body, neck, limbs, & nervous system." *fn7 On December 23, 1992, UCJF responded, notifying Aydee's counsel *fn8 that Aydee's claim was placed on an "ineligible status" because: there was no proof of Nestar's insurance and the notice was untimely filed beyond the ninety-day limitation period prescribed by N.J.S.A. 39:6-65.

On March 1, 1994, Alicia, individually, and as guardian ad litem of Aydee, filed this complaint in the Law Division naming Nestar, Villacis, John Doe (a fictitious name), *fn9 and the UCJF as defendants. Although the complaint indicated that each plaintiff was injured, the ad damnum clause sought only compensatory damages, interest, costs of suit, and attorney's fees. The complaint did not include a claim by either plaintiff for PIP benefits.

On March 10, 1995, plaintiffs filed an amended complaint naming as additional defendants the MTF by PMC and adding two additional counts:

"a claim for PIP benefits payable by MTF and a claim for PIP benefits payable by the UCJF." *fn10

While discovery progressed on Alicia's amended complaint, Nestar filed a complaint in a separate action against numerous defendants including PMC, MTF, and Cardona. Nestar sought compensation for the injuries he sustained in the automobile collision. By a separate motion, Nestar demanded that: MTF provide a defense and indemnity as to Alicia's amended complaint; that MTF be compelled to pay his claim for PIP; and that a default judgment be entered against Cardona, who failed to answer Nestar's complaint. MTF filed a cross-motion seeking to absolve it of any responsibility to Nestar or any claimant against him contending that Nestar's liability insurance policy had not been renewed prior to the accident. The motion Judge granted MTF's cross-motion, but entered a liability judgment on behalf of Nestar against Cardona predicated upon a finding that although Nestar had paid his insurance premiums to Cardona, Cardona had failed to remit those premiums to MTF. *fn11

Following the entry of an order memorializing the motion Judge's decision, counsel for Alicia and Aydee demanded that the UCJF process plaintiffs' PIP claims stating, "It is now apparent that my clients were passengers in an uninsured vehicle, and are not otherwise covered for PIP benefits, except through the UCJF." In response, the UCJF wrote in a letter dated July 26, 1996:

"As explained after Judge Giles' decision of July 12, 1996, the UCJF will not process payments of PIP bills in the above until all avenues of recovery are ...


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