JESUS SANTOS v. JAVIER HERNANDEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1286-08T11286-08T1

JESUS SANTOS,

Plaintiff-Appellant,

v.

JAVIER HERNANDEZ, BRYAN

RIGHTER, DOROTHEA RIGHTER,

Defendants,

and

NEW JERSEY PROPERTY

LIABILITY INSURANCE GUARANTY

ASSOCIATION,

Defendant-Respondent.

________________________________

 

Submitted December 15, 2009 - Decided

Before Judges Wefing and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, No. L-2997-03.

Eli B. Kuhnreich, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Plaintiff appeals from a trial court order dismissing with prejudice his claim against defendant New Jersey Property Liability Insurance Guaranty Association ("PLIGA"). After reviewing the record in light of the contentions advanced on appeal, we reverse.

Plaintiff was a passenger in a car driven by Javier Hernandez when, as Hernandez was attempting to make a left-hand turn, it was involved in an accident with a vehicle driven by defendant Bryan Righter.

Plaintiff was severely injured in the accident; his injuries included several fractured vertebrae and ribs. He required several surgeries, and his medical bills were well in excess of $250,000.

The Hernandez vehicle was uninsured and plaintiff pursued claims both against Righter and against PLIGA. In arbitration, plaintiff was awarded $250,000, and Hernandez was found to be 100% at fault. In October 2005, PLIGA demanded a trial de novo.

Defendant Righter then filed a motion for summary judgment. Both plaintiff and PLIGA opposed that motion, each contending that a jury could assess some percentage of fault against Righter for not stopping in time to avoid a collision with the turning Hernandez vehicle. Righter's motion was denied in December 2005, and the matter was set for trial, with the issues of liability and damages bifurcated.

In August 2006, the matter was marked settled. Plaintiff contends that the matter was settled for $25,000, $15,000 to be paid by PLIGA, $10,000 to be paid by Righter; the order of disposition in the record indicates copies to counsel for plaintiff, PLIGA and Righter. In October 2006, plaintiff's counsel forwarded to PLIGA's counsel a copy of plaintiff's medical bills. In January 2007, the trial court entered a consent judgment which entered judgment in plaintiff's favor for $15,000 against defendant Hernandez, provided that PLIGA would pay $15,000 to plaintiff and that it would pay his "personal injury protection (PIP) benefits subject to applicable co-payments, deductibles, fee scheduling, etc." That judgment was silent with respect to plaintiff's claim against defendant Righter. Plaintiff assigned his interest in that judgment to PLIGA, permitting it to pursue recovery against Hernandez.

For reasons not entirely explained by the record before us, there was a delay in consummating the settlement with Righter. In April 2008, plaintiff's counsel forwarded to Righter's attorney an executed release. In August 2008, PLIGA's attorney filed a motion to dismiss plaintiff's claim against PLIGA with prejudice, asserting that plaintiff no longer qualified to recover from PLIGA in light of the fact that he had negotiated a settlement with Righter. Plaintiff opposed this motion, contending that PLIGA had been aware from the outset that plaintiff had negotiated a small settlement with Righter and had interposed no objection; plaintiff argued it should not be permitted at that juncture to change its mind. The trial court granted PLIGA's motion and this appeal followed.

Initially, we question the procedure PLIGA utilized in this matter. We have already noted that a consent judgment was entered in January 2007 against PLIGA. If PLIGA was of the view that this judgment was entered incorrectly, it should have sought relief under Rule 4:50, rather than filing a motion to dismiss. We decline to rest our decision on that basis, however, since plaintiff did not challenge this procedure, either in the trial court or before us.

Plaintiff argues that we should conclude that PLIGA waived its right to assert that plaintiff was not a "qualified person" for purposes of recovery from the Unsatisfied Claim and Judgment Fund, N.J.S.A. 39:6-62, or that PLIGA should be estopped from making that argument. Although the record before us would permit an inference warranting such conclusions, it is our view that a finding of waiver or estoppel against an entity such as PLIGA should rest upon a more secure evidential foundation than a mere inference.

We are persuaded, however, by plaintiff's alternate argument, that the judgment entered in January 2007 against PLIGA should be reduced to reflect the settlement negotiated with Righter. Such a reduction accords with N.J.S.A. 39:6-84, which provides that any judgment against PLIGA "shall be reduced by any amount received or recovered by the plaintiff as specified in subparagraph (m)" of N.J.S.A. 39:6-70. That subsection, in turn, refers to "any other person against whom [plaintiff] has a cause of action for his damages." See Dodd v. Copeland, 99 N.J. Super. 481, 487 (App. Div.), aff'd o.b. 52 N.J. 537 (1968).

The order under review is reversed, and the matter is remanded to the trial court for entry of a modified judgment against defendant PLIGA.

 

We note that the order entered by the trial court contained the handwritten notation "Counsel will confer and advise the court whether or not the 'PIP' issue must be addressed." The record contains nothing further in this regard. We infer from the fact that plaintiff has not separately addressed the question in his brief that the matter has, indeed, been resolved by counsel. We have thus not dismissed this appeal as interlocutory. On the issue of recovery of PIP benefits in a context such as this, see Wilson v. Unsatisfied Claim and Judgment Fund Board, 109 N.J. 271 (1988).

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A-1286-08T1

March 10, 2010