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Caballero v. Martinez

March 10, 2005

VICTOR MANUEL CABALLERO, PLAINTIFF-APPELLANT,
v.
RICARDO MARTINEZ AND LEROY SMITH, DEFENDANTS, AND THE UNSATISFIED CLAIM AND JUDGMENT FUND BOARD AND KAREN L. SUTER, COMMISSIONER OF INSURANCE OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, docket no. MON-L-5218-02.

Before Judges Conley, Braithwaite and Lisa.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 16, 2005

Plaintiff appeals the dismissal following an evidentiary hearing of his complaint against the Unsatisfied Claim and Judgment Fund for automobile accident non-economic damages. The complaint was dismissed based upon the trial judge's conclusion that, at the time of the accident, he was not a"qualified person" as required by N.J.S.A. 39:6-62. On appeal, plaintiff contends:

POINT I: THE TRIAL COURT DISREGARDED THE STATUTORY LANGUAGE IN FINDING THAT THE PLAINTIFF WAS NOT ENTITLED TO COMPENSATION FROM THE UNSATISFIED CLAIM AND JUDGMENT FUND.

POINT II: THE TRIAL COURT IGNORED EXISTING CASELAW IN DETERMINING THE PLAINTIFF WAS NOT A RESIDENT OF NEW JERSEY.

POINT III: THE PLAINTIFF WAS DENIED EQUAL PROTECTION UNDER THE LAW WHEN THE COURT RULED HE WAS NOT A RESIDENT OF NEW JERSEY.

We have considered these contentions and reject them. We affirm for the reasons set forth by Judge Jamie S. Perri whose written opinion is reported at ___ N.J. Super. ___ (Law Div. 2005).

Affirmed.

LISA, J.A.D., dissenting.

The issue in this case is whether plaintiff, Victor Manuel Caballero, a Mexican national illegally living in the United States, is a"resident of the State" and therefore a"qualified person" under N.J.S.A. 39:6-62, eligible to collect benefits from the Unsatisfied Claim and Judgment Fund (UCJF) for injuries suffered in a motor vehicle accident. Plaintiff meets all other eligibility requirements of the UCJF Law, N.J.S.A. 39:6-61 to -90.1. By adopting the Law Division opinion, the majority holds, in effect, that an undocumented alien cannot be a bona fide resident of New Jersey within the meaning of the UCJF Law. I disagree and dissent.

The test for eligibility under the UCJF Law is residency, not domicile. A resident within the intent and policy of N.J.S.A. 39:6-62 may maintain his or her domicile elsewhere. Sullivan v. Saylor, 79 N.J. Super. 1, 5 (App. Div. 1963). To establish residence under the UCJF Law, an individual must demonstrate by acts and conduct an intent, as of the date of the accident, to remain in New Jersey for"an indefinite period." Continos v. Parsekian, 68 N.J. Super. 54, 60 (App. Div. 1961) (citing Collins v. Yancey, 55 N.J. Super. 514, 522 (Law Div. 1959)). Implicit in the concept of residence"is a degree of permanence in contrast with the situation which obtains when a person is merely transiently staying at a given address and with the formed intention of shortly going elsewhere." Ibid. A mere"sojourner" will not qualify, for"'[m]ere presence in a place unaccompanied with any intention to remain there for any length of time' does not constitute a residence." Id. at 60-61 (quoting 17A Am. Jur. Domicil, §9, p. 201).

The Law Division concluded plaintiff does not satisfy these standards because his"tenuous ties to the State of New Jersey during the five months before the accident, coupled with his status as an illegal immigrant, evidence a relationship with the state that falls short of those of a bona fide resident." Caballero v. Martinez, ___ N.J. Super. ___, ___ (Law Div. 2005) (slip op. at 7), aff'd o.b., ___ N.J. Super. ___ (App. Div. 2005). In my view, plaintiff's ties with New Jersey were anything but tenuous and, notwithstanding his illegal ...


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