JESENIA JIMENEZ VS WILLIAM BAGLIERI, ET AL

(NOTE: This decision was approved by the court for publication.)
This case can also be found at 295 N.J. Super. 162.

NOT FOR PUBLICATION WITHOUT THE
 
APPROVAL OF THE APPELLATE DIVISION
 

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2426-95T5

JESENIA JIMENEZ,

Plaintiff-Respondent,

v.

WILLIAM BAGLIERI, JOHN DOE
(name being fictitious), ABC CORP.
(name being fictitious), and
MATERIAL DAMAGE ADJUSTMENT CORP.,
as serving carrier for the MARKET
TRANSITION FACILITY,

Defendants,

and

SAMUEL FORTUNATO, COMMISSIONER OF
INSURANCE AND UNSATISFIED CLAIM
AND JUDGMENT FUND BOARD,

Defendant-Appellant.

_________________________________________________________________

Argued October 15, 1996 - Decided November 18, 1996

Before Brochin and Eichen

On appeal from the Superior Court of New
Jersey, Law Division, Essex County

Jeffrey L. Love argued the cause for
appellant (Beattie Padovano, attorneys;
Mr. Love, on the brief).

Douglas D. Burgess argued the cause for
respondent (Bross, Strickland, Cary,
Shapiro, Grossman & Icaza, attorneys;
Mr. Burgess, on the brief).

PER CURIAM

Plaintiff Jesenia Jimenez was struck and injured by a hit-and-run driver. She sued to recover damages for her injuries and she named the Unsatisfied Claim and Judgment Fund as a defendant pursuant to N.J.S.A. 39:6-78. The Fund moved for summary judgment on the ground that plaintiff was subject to the verbal threshold, N.J.S.A. 39:6A-8a, and that her injuries did not meet the statutory criteria. The motion was denied on the ground that a claim against the Fund by a person injured by a hit-and-run driver is not subject to the verbal threshold.
A trial on the issue of liability only was held on August 18, 1995. The jury found that the hit-and-run driver was 100 percent negligent. That finding is not challenged on appeal. The damage aspect of the case was scheduled for a trial call on Tuesday, October 31, 1995, but was carried to the next day because plaintiff's counsel was involved in an automobile accident. On November 1, the Fund requested an adjournment because its only witness, Dr. Harold Bennett, was unavailable. The request for adjournment was denied and the case proceeded to trial. The jury returned a verdict of $25,000 in favor of plaintiff. A judgment was entered against the Fund for $15,000 pursuant to N.J.S.A. 39:6-73 and subsequently an amended judgment was entered which, pursuant to N.J.S.A. 39:6-69, also required the Fund to pay personal injury protection benefits to plaintiff.
The Fund has appealed. It challenges both the ruling that the claim against it was not subject to the verbal threshold and

also the court's refusal to grant it an adjournment because of the unavailability of its witness.
The issue of whether a claim against the Unsatisfied Claim and Judgment Fund by a person injured by a hit-and-run driver is subject to the verbal threshold was considered and squarely decided by Judge Christine L. Miniman, J.S.C., in Rivera v. Fortunato, 285 N.J. Super. 168 (Law Div. 1995). Carefully analyzing the relevant statutes, Judge Miniman held that such a claim is not subject to the verbal threshold. We agree and adopt the reasoning and conclusion of her opinion. Cf. Sumner v. Unsatisfied Claim and Judgment Fund, 288 N.J. Super. 384 (App. Div. 1996) (recognizing that claims against the Fund for injuries caused by an uninsured driver, but not those caused by an unidentified driver, are subject to the verbal threshold.) We disapprove of Cureton v. Eley, ____ N.J. Super. ____ (Law Div. 1996), which reaches the opposite result.
We also hold that the denial of a one-day adjournment of the trial when the Fund's expert witness was unavailable because of a postponement to accommodate a mishap to plaintiff's attorney was a mistaken abuse of discretion. Cf. Pepe v. Urban, 11 N.J. Super. 385, 389 (App. Div.), certif. denied, 7 N.J. 80 (1951) (trial judge's failure to grant adjournment upon failure of plaintiff's witness to appear was error warranting new trial).
The judgment appealed from is therefore reversed and the case is remanded for a new trial on damages.

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