ERACLIO CERNA v. UNSATISFIED CLAIM & JUDGMENT BOARD

 
(NOTE: The status of this decision is .)

The status of this decision is

Original Wordprocessor Version
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4661-04T24661-04T2

ERACLIO CERNA,

Plaintiff-Respondent,

v.

UNSATISFIED CLAIM &

JUDGMENT BOARD,

Defendant-Appellant.

___________________________________________

 

Submitted December 14, 2005 - Decided

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-1710-03.

King, Kitrick & Jackson, attorneys for appellant (Garrick R. Slavick, on the brief).

Victor M. Covelli, attorney for respondent.

PER CURIAM

This Unsatisfied Claim & Judgment Fund (UCJF) appeal arises from a denial of UCJF's motion for summary judgment on a UCJF claim filed by plaintiff, an illegal alien. We remand for an evidentiary hearing on plaintiff's status as a New Jersey resident.

On August 23, 2002, plaintiff, while riding a bicycle, was struck by a vehicle which fled the scene. The driver was never located. At the time of the accident, plaintiff had been living in a rented room in New Jersey for approximately three months. Plaintiff is from Peru. He came to New Jersey in May 2002. At the time of the accident he did not have a green card, a visa, a social security number, or a work permit. He was an illegal alien.

On June 19, 2003, plaintiff filed a complaint against the UCJF alleging, in part, in the first count:

[1] The plaintiff has sustained personal injuries resulting in one or more of the following: death, dismemberment, significant disfigurement or significant scarring; displaced fracture; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement [N.J.S.A. 39:6A-8(a)].

[2] The plaintiff has complied with the provisions of N.J.S.A. 39:6-65.

[3] The plaintiff is not a person covered with respect to such injury or death by any Workers' Compensation law, or the personal representative of such a person.

[4] The plaintiff was not, at the time of the accident, operating or riding in an uninsured vehicle owned by his/her spouse, parent or child, and was not operating a motor vehicle in violation of an order of suspension or revocation.

[5] The plaintiff has a cause of action against the operator or owner of such motor vehicle, or against the operator who was operating the motor vehicle without the consent of the owner of the motor vehicle.

[6] All reasonable efforts have been made to ascertain the identity of the motor vehicle and of the owner and operator thereof; and either that the identity of the motor vehicle and the owner and operator thereof cannot be established, or that the identity of the operator, who was operating the motor vehicle without the owner's consent, cannot be established.

[7] This action is not brought by or on behalf of an insurer under circumstances set forth in N.J.S.A. 39:6-70.

[8] This action is not barred by N.J.S.A. 39:6A-1 et seq.

WHEREFORE, Plaintiff, Eraclio Cerna, demands judgment against the defendant Holly Bakke, Commissioner of Insurance of the State of New Jersey, for damages, together with interest and costs of suit, and counsel fees.

In the second count, plaintiff alleged in part:

[1] As a direct result and proximate result of injuries sustained in the aforesaid accident, plaintiff, Eraclio Cerna, was required to obtain medical treatment from the following providers, incurring the following charges:

a)Jersey Shore Medical Center $74,731.00

b)Community Medical Center 12,427.00

c)Jersey Shore Medical Center 2,790.00

Clinic

PLUS ALL OTHER MEDICAL BILLS TO BE DETERMINED.

[2] The treatment obtained for plaintiff, Eraclio Cerna, was medically necessary and the charges reasonable, and were incurred as a direct result of the motor vehicle accident on August 22, 2002.

[3] Prior to the accident, plaintiff was gainfully employed.

[4] As direct and proximate result of injuries sustained in the aforesaid accident, the plaintiff, Eraclio Cerna, was totally disabled from the date of the accident for a certain time period, resulting in lost wages. Plaintiff is entitled to income continuation benefits.

[5] At the time of the accident, neither plaintiff, Eraclio Cerna, nor any member of his family residing in his household, owned a motor vehicle carrying liability insurance so as to afford him Personal Injury Protection benefits pursuant to N.J.S.A. 39:6A-1, et seq.

WHEREFORE, Plaintiff, Eraclio Cerna, demands judgment against the defendant, The Unsatisfied Claim and Judgment Fund Board for all unpaid medical bills, income continuation benefits, and essential services benefits, if applicable, together with damages, interest and costs of suit, and counsel fees.

Plaintiff's illegal alien status was discovered during his deposition. Thereafter, the UCJF filed a motion for summary judgment. It tells us in its brief that the basis for the motion was that plaintiff "was not a 'Qualified Person' under N.J.S.A. 39:6-62."

Entitlement from UCJF for damages that might otherwise be recovered from a culpable insured driver is available only to a "Qualified Person." In this respect, N.J.S.A. 39:6-62 provides in pertinent part:

"Qualified person" means a resident of this State or the owner of a motor vehicle registered in this State or a resident of another state, territory, or federal district of the United States or province of Canada or of a foreign country, in which recourse is afforded, to residents of this State, of substantially similar character to that provided for by this act . . . .

We are told the focus of UCJF's motion was that plaintiff was not a qualified person because he was not a resident of New Jersey. See Caballero v. Martinez, 376 N.J. Super. 223 (Law Div. 2004), aff'd o.b., 376 N.J. Super. 175 (App. Div. 2005) (Lisa, J.A.D., dissenting). Unlike Caballero where there was an evidentiary hearing as to the plaintiff's residency status, the motion record we have been provided contains only limited facts bearing upon that factually sensitive issue.

That is probably why, after some argument relating to plaintiff's residency status, the following colloquy occurred:

THE COURT:

But what country is he from? His home country?

[UCJF ATTORNEY]:

Do you know . . . ?

[PLAINTIFF'S ATTORNEY]:

His home country? Yes, I think it's Peru.

. . . .

THE COURT:

So, wouldn't this be a foreign country, even assuming he wasn't a resident here, is he considered a resident of Peru? It doesn't preclude him from bringing a cause of action under the statute, even if he's a resident of Peru.

[UCJF ATTORNEY]:

Only if Peru affords the same recourse to the United States - to New Jersey residents when in Peru.

THE COURT:

Well, do you know that one way or the other?

[UCJF ATTORNEY]:

I can't quote you law on that, Judge. I can tell you I'm sure that they don't, but -

THE COURT:

How do you know that? I mean, why would that be in there unless there are other countries who afford the same kind of protection? What if a person was in Peru and was struck by a hit-and-run driver? Is there an opportunity, in Peru, to receive compensation because of that? And if there is some kind of compensation, the law would say he's entitled to bring this cause of action here because either he's a resident here or he's a resident of Peru. He's one or the other.

I mean, he can't be nowhere. He can't be in this warp.

[UCJF ATTORNEY]:

I would have to concede that point, Judge, that if he is - if Peru does provide recourse, then, yes, he would be eligible.

THE COURT:

Well, that's one reason why the Court is not in a position to grant summary judgment because I'm not going to presume that Peru does not. It would be your burden to show me -

[UCJF ATTORNEY]:

Correct

THE COURT:

-- that even in Peru it wouldn't be provided. But having - but I'm also uncomfortable with granting you summary judgment at this point because there is no case on point. There's nothing really that defines what they mean in the statute.

It appears to me that the Legislature could have said that this excludes illegal aliens and they don't do that. They don't define resident as being someone lawfully within the State of New Jersey. It's very broad. It's a very broad umbrella and because it's so broad, it appears to me that - at the time, it was a very short period of time that he was here, that his intent was to become a resident.

Say he did nothing. He did nothing after that. But - and you're asking me to look at all that now and say, well, that means he really shouldn't be considered a resident. But let's assume he was here for four months and then he did make application for a green card or he did get a visa at that point or - you know, then you're going to say - you would still argue, but at the time he wasn't a resident because he was illegal at the time, and later on he became legal.

[UCJF ATTORNEY]:

Judge, I'm not going to stand here and say I wouldn't argue that an illegal alien is not an eligible person, period. But I will submit to you that, perhaps, when they drafted the statute, they did not want to say that all illegal aliens are precluded from recovery under the fund, but that you had to be a New Jersey resident, and that it's a public trust created to protect residents of New Jersey who are putting into New Jersey, paying taxes, paying D.M.V. fees, paying property taxes, doing things.

THE COURT:

I think it's a fair public policy argument to be made, but the reality is the Legislature makes that kind of decision whey they pass the lang - when they decide the language in the statute. And if he was employed here, it is not -

[UCJF ATTORNEY]:

There's no proof of his employment here.

THE COURT:

I don't know what he's doing here after all these years, but he's got to be doing something.

[UCJF ATTORNEY]:

But there's no proof of his employment, Judge.

THE COURT:

He's certainly not collecting unemployment.

[UCJF ATTORNEY]:

There's no proof of him collecting unemployment. There's no proof of him earning any wages. He's not paying taxes.

THE COURT:

I think it is such a broadly-written statute that he resided within the State of New Jersey at that period of time. He was living here. He continues to live here. It appears to the Court that he's an illegal alien and I will assume that for the moment, although I - because there's nothing that tells me to the contrary and they've had every opportunity to repute that.

But I'm also not confident that Peru doesn't afford its citizens or individuals the same opportunity for compensation. And so, under the circumstances, because there is not a very strict definition of resident, because it does allude to other countries as well that, under the circumstances, at least at this posture, the motion should be denied.

[UCJF ATTORNEY]:

On the first issue, Judge, with the resident of this State and the illegal alien and he happens to stay here.

THE COURT:

I think he's a resident. He may be an illegal resident, but he's a resident.

[UCJF ATTORNEY]:

If I may analogize, if someone is incarcerated in Pennsylvania, breaks out of prison, comes to the State of New Jersey for two years, would that person be entitled to recover under the fund as a resident of New Jersey, simply because he lives here illegally?

THE COURT:

That's - every case is fact sensitive and where - I can't tell you that because I think there's a whole host of other issues -

[UCJF ATTORNEY]:

Right.

THE COURT:

-- about when you are incarcerated when your rights, in fact, have been - something has impacted your rights if you are doing something in that respect. I can't answer that question.

[UCJF ATTORNEY]:

But in both situations you have someone in the State illegally.

THE COURT:

I am denying the motion primarily on the fact that he is from Peru and that Peru may afford us another opportunity - other residents an opportunity. And if that's the case, where he's illegal here or not is irrelevant to the Court and he would have that opportunity to recover.

[UCJF ATTORNEY]:

So, we could -

THE COURT:

The inference is in his favor. That's the cornerstone of my decision.

The motion judge, then, denied the motion because UCJF had not convinced him Peru would not provide similar benefits to a New Jersey resident injured in Peru. But that clearly was not UCJF's burden. It is plaintiff who must establish entitlement to UCJF benefits. Wormack v. Howard, 33 N.J. 139, 143 (1960); Craig & Pomeroy, New Jersey Auto Insurance Law 31:2-1 (Gann 2005).

Beyond that, the critical factual dispute here was whether plaintiff was a resident of this state. Although the motion judge seems to have assumed plaintiff was a resident simply because plaintiff was living here at the time, residency requires a little more. Caballero v. Martinez, supra, 376 N.J. Super. at 229. At the least, in the apparent absence of a definitive motion record on the residency issue, an evidentiary hearing is required.

Reversed and remanded for an evidentiary hearing on plaintiff's status, at the time of his accident, as a resident of New Jersey. We do not retain jurisdiction.

 

The UCJF's appendix contains neither its notice of motion, nor its supporting certification, if any, nor the required statement of material facts. See R. 4:46-2(a). Plaintiff has provided us with the notice of motion only. If he filed a response to the required statement, see R. 4:46-2(b), he has not provided us with a copy. Most likely, neither party complied with the requirements of R. 4:46-2(a),(b). They may have thought the issue was solely legal. As it turns out, it was not.

As of the date of this opinion, Caballero is pending in the Supreme Court by virtue of the dissent. R. 2:2-1(a)(2).

(continued)

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A-4661-04T2

December 23, 2005