On appeal from Superior Court of New Jersey, Law Division, Essex County, L-1131-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically February 25, 2008
Before Judges Grall and Chambers.
Plaintiff Janna Irving contends that she was injured by an uninsured vehicle and hence is entitled to have her personal injury protection claim (PIP claim), under N.J.S.A. 39:6A-4 to 39:6A-5.1, paid by defendant the Unsatisfied Claim and Judgment Fund administered by the New Jersey Property-Liability Insurance Guaranty Association (UCJF/PLIGA), N.J.S.A. 17:30A-6 and N.J.S.A. 39:6-64c.
Plaintiff appeals from the trial court's order dated March 30, 2007, holding defendant Allstate Insurance Company (Allstate) responsible for her PIP claim. Allstate's insured, defendant Robson G. DaSilva, was named as a driver involved in the accident in the police report and in the complaint. Allstate also contends that UCJF/PLIGA, and not Allstate, is responsible for plaintiff's PIP payment. We reverse and remand so that plaintiff's PIP claims against UCJF/PLIGA and Allstate can be resolved in arbitration.
Plaintiff also appeals from the order denying her claim for non-economic damages against UCJF/PLIGA on the basis that she failed to meet the lawsuit threshold under N.J.S.A. 39:6A-8(a). She contends that her injuries do meet the lawsuit threshold.
We reverse and remand, since there are unresolved factual issues as to whether plaintiff sustained a permanent injury in the accident that would satisfy the lawsuit threshold.
On September 8, 2003, plaintiff, a pedestrian, was struck by a car driven by defendant Keilamara C. Oliveira, an uninsured driver. The police report also indicates that two other vehicles were involved in the accident. One was owned by defendant DaSilva, who was insured by Allstate, and the other vehicle was owned by defendant Maria M. Lainez. In the complaint, plaintiff asserted personal injury claims for non-economic damages against defendants Oliveira, DaSilva and Lainez. She asserted PIP claims against defendants Allstate and UCJF/PLIGA.
By order dated July 9, 2004, plaintiff's PIP claim against Allstate was dismissed without prejudice, and plaintiff was directed to take her PIP claim against Allstate to arbitration.*fn1
Plaintiff's PIP claim against UCJF/PLIGA was dismissed from the case on August 6, 2004, because plaintiff had an alternate remedy, namely, recovery from Allstate.
Thereafter, at her deposition, plaintiff testified that the only vehicle involved in the accident was the one driven by defendant Oliveira, the uninsured driver. As a result, summary judgment was granted to defendant DaSilva, Allstate's insured, on May 13, 2005, and summary judgment was granted to defendant Lainez on August 5, 2005. UCJF/PLIGA was restored to the case by consent order dated August 5, 2005.
A proof hearing on plaintiff's personal injury claim against defendant Oliveira, the uninsured driver, was held on July 28, 2006. At the proof hearing, the trial court found that plaintiff sustained permanent injuries in the accident consisting of disc bulges and continuing pain in her ankles, left shoulder, and back. The trial court also found that plaintiff suffered from depression causally related to the accident. The trial court entered judgment dated August 3, 2006, against defendant Oliveira in the sum of ...