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Irving v. Oliveira


April 8, 2008


On appeal from Superior Court of New Jersey, Law Division, Essex County, L-1131-04.

Per curiam.


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 $49,106.50, which included medical expenses in the sum of $24,106.50, and an award for non-economic damages in the sum of $25,000.

Since defendant Oliveira was an uninsured driver, plaintiff then moved for judgment against UCJF/PLIGA for PIP benefits under N.J.S.A. 39:6-86.1, and for a judgment against UCJF/PLIGA for her non-economic loss under N.J.S.A. 39:6-69(a). UCJF/PLIGA opposed this motion on the basis that plaintiff must pursue her PIP remedies against defendant Allstate and that her non-economic claims are barred by the lawsuit threshold governing claims against UCJF/PLIGA under N.J.S.A. 39:6-70(n).

By order dated March 30, 2007, the trial court denied plaintiff's motion, finding that Allstate was responsible for plaintiff's PIP claim and that plaintiff had not met the verbal threshold necessary to support a claim for non-economic loss against UCJF/PLIGA.

On appeal, plaintiff contends that she is entitled to pursue her PIP claim against UCJF/PLIGA. She also maintains that she has met the lawsuit threshold and is entitled to a judgment against UCJF/PLIGA for her non-economic loss. Allstate asserts that it is not liable for plaintiff's PIP benefits since its insured was not involved in the accident. UCJF/PLIGA concedes that at this juncture Allstate should not be held responsible for plaintiff's PIP claims, but contends that a fact question is present on whether Allstate's insured was involved in the accident. UCJF/PLIGA maintains that the question of who pays plaintiff's PIP claims should be submitted to PIP arbitration involving plaintiff, Allstate and UCJF/PLIGA. UCJF/PLIGA also contends that plaintiff has failed to meet the lawsuit threshold and hence may not recover for any non-economic losses against it.

We note at the outset that this appeal is interlocutory, since the PIP dispute has not yet gone to arbitration. See Wein v. Morris, 388 N.J. Super. 640, 652-53 (App. Div. 2006), certif. granted, 190 N.J. 254 (2007). If an order is not final, or among those orders expressly designated as final for purposes of appeal, a party must seek leave to appeal from the Appellate Division. R. 2:5-6(a). A grant of leave to appeal from an interlocutory order is left to the discretion of this court, and that discretion is exercised sparingly and "in the interest of justice." R. 2:2-4; see State v. Reldan, 100 N.J. 187, 205 (1985); Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 550 (App. Div. 2007). A grant of leave to appeal nunc pro tunc "is most extraordinary relief." Frantzen v. Howard, 132 N.J. Super. 226, 227-28 (App. Div. 1975). We recognize, however, that the procedural knot in which the parties find themselves will be difficult to unravel at this point without unnecessary delay and expense to the litigants unless this court intervenes. For these reasons and in the interest of justice, we grant leave to appeal under Rule 2:2-4, nunc pro tunc.


We will first address the PIP claim. Since plaintiff did not own an automobile and no family member residing in her household owned an automobile at the time of the accident, she had no automobile insurance policy from her household responsible for her PIP claim. See N.J.S.A. 39:6A-4. The trial court held that Allstate is responsible for this claim.*fn2

However, Allstate may be liable for this claim only if the vehicle it insured caused plaintiff's injuries.*fn3 As the record indicates, plaintiff now maintains that Allstate's insured was not involved in the accident, and Allstate's insured has been dismissed from the case on a motion for summary judgment. Due to this circumstance, both plaintiff and Allstate take the position that UCJF/PLIGA should be responsible for plaintiff's PIP claims.

However, UCJF/PLIGA was not involved in the case when plaintiff was deposed or when summary judgment was granted in favor of Allstate's insured. As a result, principles of issue preclusion do not bind UCJF/PLIGA to any factual determinations made in that motion. See First Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352 (2007) (stating that one of the requirements for issue preclusion is that "the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding").

UCJF/PLIGA is obligated to pay the PIP benefits only to those qualified individuals injured in a motor vehicle accident who are not eligible to obtain PIP benefits from any other source. N.J.S.A. 39:6-86.1; N.J. Mfrs. Ins. Co. v. Griffin, 253 N.J. Super. 173, 179 (Law Div. 1991). Thus, if the vehicle insured by Allstate caused plaintiff's injuries, plaintiff must seek her PIP benefits from Allstate, and UCJF/PLIGA would have no responsibility for her PIP benefits.

The information set forth in the police report indicating that the Allstate vehicle was involved in the accident is contrary to plaintiff's deposition testimony and raises a factual dispute among plaintiff, UCJF/PLIGA and Allstate which remains to be resolved. We reverse the order of March 30, 2007, finding Allstate responsible for plaintiff's PIP claim, and remand so that plaintiff's PIP claims against Allstate and UCJF/PLIGA may be referred to arbitration pursuant to N.J.S.A. 39:6A-5.1.


We next address the appeal from the trial court's determination that plaintiff has failed to meet the lawsuit threshold under the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8(a), and thus is not entitled to any recovery from UCJF/PLIGA for non-economic loss, as defined under N.J.S.A. 39:6A-2(i). In order for a claimant to obtain monies from UCJF/PLIGA for non-economic damages sustained in an accident involving an uninsured driver, the claimant must first obtain a judgment against the uninsured driver. N.J.S.A. 39:6-69. This plaintiff has done. Once the judgment is obtained, the claimant must then apply to the court for an order directing UCJF/PLIGA to make payment up to the statutory limits. N.J.S.A. 39:6-69(a). This plaintiff also has done.

However, in order to recover against UCJF/PLIGA, the claimant must also satisfy the requirements in N.J.S.A. 39:6-70, including meeting the lawsuit threshold set forth in N.J.S.A. 39:6A-8(a). N.J.S.A. 39:6-70(n); Jimenez v. Baglieri, 152 N.J. 337, 346 (1998). UCJF/PLIGA opposed plaintiff's application on the basis that plaintiff failed to meet the lawsuit threshold. The trial court agreed, and denied plaintiff's application finding that plaintiff had not sustained permanent injuries in satisfaction of the lawsuit threshold.

In order to pass the lawsuit threshold, plaintiff must show that she has suffered one of the qualifying injuries as defined in N.J.S.A. 39:6A-8(a), and she must come forward with objective clinical evidence to support such a finding. N.J.S.A. 39:6A-8(a); see DiProspero v. Penn, 183 N.J. 477 (2005). Plaintiff maintains that she has sustained a "permanent injury," which is one of the qualifying injuries set forth in N.J.S.A. 39:6A-8(a). Plaintiff contends that her cervical spine was permanently injured in the accident. Plaintiff's objective clinical proof of the injury is a Magnetic Resonance Imaging (MRI) of her cervical spine conducted on September 17, 2003, showing a posterior centrally bulging disc at the C5-6 level with encroachment toward the thecal sac. An MRI is recognized as an objective diagnostic test. Davidson v. Slater, 189 N.J. 166, 190 (2007); N.J.A.C. 11:3-4.5(b)(5).

Plaintiff has also come forward with medical reports indicating that her cervical injuries are permanent and causally related to the accident. The medical report of plaintiff's doctor, I. Ahmad, M.D., includes a bulging disc among the diagnoses, and the report can be reasonably read as containing an opinion that the bulge was caused by the accident. Robert T. Latimer, M.D., in his psychiatric report on plaintiff, finds that plaintiff's disc disease is directly related to the motor vehicle accident. Indeed, at the proof hearing, the trial court found that the disc bulge constituted a permanent injury sustained in the accident.

UCJF/PLIGA's medical expert takes a contrary view. In his report of May 2, 2006, Martin L. Sorger, M.D., states that plaintiff's disc bulge is of no clinical significance and that plaintiff has sustained no permanent injury in the accident.

The trial court provided no reasons for its conclusion that plaintiff's injury did not meet the lawsuit threshold. We note that the expert reports of plaintiff and UCJF/PLIGA differ on the critical question of whether the plaintiff's injuries are permanent and supported by objective clinical evidence. Accordingly, we reverse and remand for resolution of this factual dispute, and for a determination of whether plaintiff's injuries meet the lawsuit threshold.

The order of March 30, 2007, is reversed, and the case is remanded for further proceedings in accordance with this opinion.

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