Bashir v. Commissioner of the Department of Insurance

SYLLABUS
 

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Herbert Bashir v. Commissioner of the Department of Insurance (A-22-98)

 
(NOTE: The Court wrote no full opinion in this case. Rather, the Court's affirmance is based substantially on the written opinion of Judge Wecker of the Appellate Division.)

Argued March 1, 1999 -- Decided April 8, 1999

PER CURIAM

This appeal addresses the interaction between benefits provided under the Unsatisfied Claim and Judgment Fund (UCJF), pursuant to N.J.S.A. 39:6-61 et seq., and under the Uninsured Employer's Fund (UEF) pursuant to N.J.S.A. 34:15-120.1 et seq., also known as Article 7A of the Workers' Compensation Act.

Herbert Bashir was a limousine driver for a company that failed to carry either workers' compensation or automobile liability insurance. Bashir was driving the company's vehicle when it was involved in a collision with a hit-and-run driver. Bashir filed for benefits under the UEF, which pays awards against uninsured employers who fail to provide compensation to employees or their beneficiaries in accordance with the provisions of the workers' compensation law. Under the 1988 amendment to Article 7A, a UEF award is limited to medical expenses and temporary disability; pain and suffering and permanent disability are no longer available.

Bashir also sought benefits from the UCJF and reached a tentative settlement in the amount of $9000 but, thereafter, the UCJF declined payment based on N.J.S.A. 39:6-70(a) (Section 70(a)) because that section provides for summary disposition of UCJF applications at a hearing where the applicant is required to show, among other things, that he or she is not a person covered in respect of the injury or death by any workers' compensation law.

Bashir filed suit to enforce the UCJF settlement. The Law Division held that, despite the very limited scope of Title 7A UEF benefits, Bashir was a person covered by a workers' compensation law and was, therefore, precluded from receiving benefits under the UCJF statute. The judge rejected Bashir's argument that the reasoning of Licata v. Lutz should allow him to recover from the UCJF.

On appeal, the Appellate Division reversed and remanded for entry of judgment enforcing the $9000 settlement between Bashir and the UCJF, reduced by the amount Bashir has recovered or will recover from the UEF. The court noted that the legislative history of the both Fund statutes offers little guidance to their intended interaction. Because the principles of statutory interpretation were not especially helpful in deciding whether the "covered by" language of Section 70(a) applies to the UEF, the Appellate Division relied on Licata, the only direct interpretation of that section. The Appellate Division concluded that, given the limitations of the remedy afforded by the UEF, like Licata, Bashir is not a person "covered" by any workers compensation law within the meaning of Section 70(a).

The Appellate Division noted that the purposes of the UCJF and UEF are similar: to protect persons who suffer injury that should have been compensable but for the responsible party's failure to have insurance coverage. According to the appellate panel, the nature of both statutes, when read together, demonstrates that the Legislature did not intend that the limited UEF benefits deprive an employee of all UCJF benefits.

The Appellate Division noted that, while it must construe the UCJF statute to avoid a depletion of the Fund by unqualified claims, a construction that would deprive Bashir of any award from the UCJF would be contrary to the remedial purposes of the legislation establishing each Fund. In addition, the Appellate Division declined to follow the implied holding in Minardi v. Nocito that an injured employee whose employer carried no workers' compensation insurance is not eligible for UCJF benefits.

Based on its reasoning, the Appellate Division held that the purposes of both Fund laws are best served by a narrow reading of N.J.S.A. 39:6-70(a). Therefore, Bashir's Article 7A right to proceed against the UEF does not exclude him from the protection of the UCJF as a person "covered by any workers' compensation law." The court further held that if Bashir qualifies for benefits payable from the UEF under Article 7A, he can still recover from the UCJF, but only to the extent the benefits he would otherwise receive from the UCJF exceed the benefits he receives from the UEF.

The Supreme Court granted certification.

HELD: Judgment of the Appellate Division is affirmed substantially for the reasons expressed in the opinion below. Bashir's Article 7A right to proceed against the Uninsured Employer's Fund does not exclude him from the protection of the Unsatisfied Claim and Judgment Fund as a person covered by any workers' compensation law. If Bashir qualifies for benefits payable from the UEF under Article 7A, he can still recover from the UCJF, to the extent the benefits he would otherwise receive from the UCJF exceed the benefits he receives from the UEF.

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in this PER CURIAM opinion.

SUPREME COURT OF NEW JERSEY
A- 22 September Term 1998
 

HERBERT BASHIR,

Plaintiff-Respondent,

v.

COMMISSIONER OF THE DEPARTMENT OF INSURANCE, Designated Defendant in a Hit & Run Case,

Defendant-Appellant,

and

JOHN DOE, said name being fictitious, RICHARD ROE, said name being fictitious, HARTFORD INSURANCE COMPANY, a corporation or business organization, TWIN CITY FIRE INSURANCE COMPANY, a corporation or business organization, SONDHEIM & LOUGHLIN, INC., a corporation or business organization, SPERO MARGEOTES DIAMOND COACH LIMO SERVICE, INC., a corporation or business organization, ALPHA INSURANCE COMPANY, said name being fictitious, a corporation or business organization,

Defendants.

Argued March 1, 1999 -- Decided April 8, 1999

On certification to the Superior Court, Appellate Division, whose opinion is reported at 313 N.J. Super. 1 (1998).

Michael F.J. Romano argued the cause for appellant.

Timothy L. Madden argued the cause for respondent (Freeman & Bass, attorneys).

PER CURIAM
The judgment is affirmed, substantially for the reasons expressed in Judge Wecker's opinion of the Appellate Division, reported at 313 N.J. Super. 1 (1998).
 
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in this PER CURIAM opinion.

SUPREME COURT OF NEW JERSEY
 

NO. A-22

SEPTEMBER TERM 1998
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court

HERBERT BASHIR,
Plaintiff-Respondent,
v.
COMMISSIONER OF THE DEPARTMENT OF INSURANCE, Designated Defendant in a Hit & Run Case,
Defendant-Appellant,
and
JOHN DOE, said name being fictitious, RICHARD ROE, said name being fictitious, HARTFORD INSURANCE COMPANY, a corporation or business organization, TWIN CITY FIRE INSURANCE COMPANY, a corporation or business organization, SONDHEIM & LOUGHLIN, INC., a corporation or business organization, SPERO MARGEOTES DIAMOND COACH LIMO SERVICE, INC., a corporation or business organization, ALPHA INSURANCE COMPANY, said name being fictitious, a corporation or business organization,
Defendants.

DECIDED

April 8, 1999
Chief Justice Poritz PRESIDING
OPINION BY PER CURIAM
CONCURRING OPINION BY DISSENTING OPINION BY
CHECKLIST
AFFIRM CHIEF JUSTICE PORITZ X JUSTICE HANDLER X JUSTICE POLLOCK X JUSTICE O'HERN X JUSTICE GARIBALDI X JUSTICE STEIN X JUSTICE COLEMAN X TOTALS
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