Brian Sarratt v. Nj Pliga ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0786-22
BRIAN SARRATT,
Plaintiff-Appellant,
v.
NJ PLIGA,
Defendant-Respondent.
________________________
Submitted December 20, 2023 – Decided January 8, 2024
Before Judges Accurso and Walcott-Henderson.
On appeal from the Superior Court of New Jersey,
Law Division, Union County, L-3903-21.
John J. Pisano, attorney for appellant.
Flanagan, Barone & O'Brien, LLC, attorneys for
respondent (Michelle Mary O'Brien, of counsel and on
the brief; Frank Joseph Morano, on the brief).
PER CURIAM
Brian Sarratt appeals from orders dismissing his complaint (and denying
reconsideration) against the New Jersey Property-Liability Insurance Guaranty
Association (PLIGA), the statutory administrator of the Unsatisfied Claim and
Judgment Fund (UCJF or Fund), pursuant to Rule 4:6-2(e) for failure to
establish he was a qualified claimant under N.J.S.A. 39:6-62 and to comply
with the notice provisions of N.J.S.A. 39:6-65. We affirm.
Plaintiff was riding a bicycle in Elizabeth on a rainy night in October
2021, when a small, white hatchback turned into him, knocking him to the
ground. The car didn't stop. Police and paramedics responded to the scene.
The police completed an accident report, documenting plaintiff's report that a
hit-and-run driver making a left turn collided with the front wheel of his
bicycle. The report did not note any witnesses to the accident. Plaintiff
declined medical attention and "limped" the few blocks home, his bike being
unrideable.
Plaintiff promptly retained counsel who ten days later faxed PLIGA a
letter attaching the police report and notes from a medical provider, requesting
"all necessary forms, so as to arrange for the processing of this claim." The
following week, counsel filed a complaint on plaintiff's behalf asserting his
eligibility for bodily injury uninsured motorist benefits. Counsel, however, did
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not file a notice of intent to make a claim on plaintiff's behalf within the 180
days permitted by N.J.S.A. 39:6-65.1
Counsel for PLIGA wrote to plaintiff's counsel on December 16, 2021,
thirty days after the complaint was filed, and nearly seven weeks after the
accident, requesting
the requisite documentation in support of your client's
application for benefits including:
• Proof of residency on the date of loss
• Notice of Intention
• Affidavit of No Insurance
• Certification of Medicare Eligibility; and
• Application for PIP benefits.
1
N.J.S.A. 39:6-65 provides in pertinent part:
Any qualified person . . . who suffers damages
resulting from bodily injury . . . arising out of the
ownership, maintenance or use of a motor vehicle in
this State on or after April 1, 1955, and whose
damages may be satisfied in whole or in part from the
fund, shall . . . within 180 days after the accident, as a
condition precedent to the right thereafter to apply for
payment from the fund, give notice to the association,
the form and contents of which shall be prescribed by
the association, of his intention to make a claim
thereon for such damages if otherwise uncollectible
....
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Plaintiff's counsel did not respond to that letter and did not submit the
requisite documents. Plaintiff did, however, provide answers to interrogatories
in mid-February 2022, disclosing his address, but not his social security
number, and certifying he lived alone and that there were no witnesses to the
accident. PLIGA's counsel wrote plaintiff's counsel again on April 5, 2022,
renewing her request for proof of plaintiff's residency and "plaintiff's
documents in support of UCJF eligibility." PLIGA's counsel received no
response to that letter either. The 180-day time period for notice expired on
April 27, 2022, without plaintiff's counsel filing the necessary documents.
PLIGA deposed plaintiff on May 12, 2022. At his deposition, plaintiff
provided counsel his social security number. He also confirmed his address,
testifying it was an apartment belonging to a friend where he'd lived for two
years — contrary to his interrogatory response that he lived alone. He reported
his friend owned a Cadillac Escalade, which was insured on the date of the
accident. In response to a question from PLIGA's counsel about a motorcycle
and a black Lexus parked at his home, plaintiff responded that the Lexus
belonged to his friend and the motorcycle belonged to a friend of his friend.
Although plaintiff certified in his answers to interrogatories that there
were no witnesses to the accident, he testified at his deposition there were two
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witnesses. One, a woman who stopped to help and another, a mechanic at a
garage "directly across" from where plaintiff was hit, who assisted him to a
chair in the garage and called the police. Plaintiff did not get either of their
names, describing both as Hispanic. 2
Following the deposition, PLIGA's counsel wrote to plaintiff's counsel
on June 8, 2022, referencing her letter of April 5, and noting she had yet to
receive proof of plaintiff's residence or "plaintiff's documents in support of
UCJF eligibility." Counsel enclosed with that letter the PLIGA forms for an
affidavit in support of UCJF eligibility, certification of Medicare eligibility,
notice of intention to make a claim, and an application for PIP benefits, asking
counsel to supply the completed documents "forthwith," and that failure to do
so within ten days would result in the filing of a motion. Plaintiff's counsel
did not respond to that letter.
Over two months later, PLIGA filed its motion to dismiss plaintiff's
complaint for failure to comply with the notice provisions of N.J.S.A. 39:6-65.
2
Plaintiff also testified at his deposition that he'd used the name Keith Sarratt
as "an alias" in the past. We note this not to suggest any fraud or abuse on
plaintiff's part but to underscore the importance to PLIGA of the timely rece ipt
of information, including a claimant's social security number, to allow it to
conduct an effective investigation of the claim. See Giacobbe v. Gassert, 29
N.J. 421, 425 (1959) (noting the statutory "notice is designed to afford a timely
inquiry and thus to safeguard the fund against fraud and imposition").
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Two days later, plaintiff's counsel responded with an executed affidavit in
support of UCJF eligibility, an executed notarized PLIGA claim form, an
executed certification of Medicare eligibility, a notice of intention to make a
claim, and a completed application for PIP benefits. Plaintiff did not include
an affidavit of no insurance. PLIGA argued plaintiff's failure to supply an
affidavit stating he was without insurance on the date of the accident rendered
him disqualified for benefits under N.J.S.A. 39:6-62, and the eligibility
documents he supplied in response to the motion were tendered well beyond
the 180-day limit for notice under N.J.S.A. 39:6-65. Plaintiff countered that he
had provided all required information, and PLIGA's regulations expressly
provide that "[a] Notice of Intention to Make Claim under N.J.S.A. 39:6-65
may be filed on [the form designated]" by the UCJF and written notice "in any
other form that contains the information required by this section shall b e
acceptable." N.J.A.C. 11:3-26.2(a) and (b).3 (Emphasis added).
3
N.J.A.C. 11:3-26.1 provides:
(a) Notice of intention to make a claim under N.J.S.A. 39:6-65 shall contain
the following information:
1. The claimant's name, address, date of birth and
social security number;
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After hearing argument, the judge issued an order and a written
statement of reasons granting PLIGA's motion and dismissing plaintiff's
complaint. The judge began by explaining that the purpose of the Unsatisfied
Claim and Judgment Fund Law, N.J.S.A. 39:6-61 to 90.1, "is to 'provide a
measure of relief to persons who sustain losses inflicted by financially
2. The time, date, location, municipality and county
in which the loss occurred;
3. The identity of the operators and vehicles involved
in the accident, including the name and address of the
owner and operator and the license plate number of
the vehicle;
4. Such witnesses to said accident as are then known;
5. A short description of the accident, including the
claimant's role or position therein;
6. A description of the injuries then known, and
attached thereto a medical certificate if then available.
In any event the medical certificate shall be filed as
soon as available;
7. A description of the damage sustained to property,
and attached thereto an estimate of the cost of repairs
if then available; and
8. The policy number of any insurance applicable to
the accident, including the name and address of all
insurance companies involved.
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irresponsible or unknown owners and operators of motor vehicles, where such
persons would otherwise be remediless.'" Dixon v. Gassert, 26 N.J, 1, 5
(1958). The judge noted "the purpose of the Act was never to 'make every
claimant whole or to compensate all accident victims.'" Jimenez v. Baglieri
152 N.J. 337, 342 (1998). Instead, "it was intended 'to offer some measure of
relief to those who come within the class intended to be protected, to prevent a
claimant from being forced to absorb the entire economic loss caused by the
accident.'" Id. at 342-43 (quoting Unsatisfied Claim and Judgment Fund Bd. v.
New Jersey Mfrs. Ins. Co., 138 N.J. 185, 189 (1994)).
The judge also noted the well-established principle that our "courts are,
in essence, 'the guardian[s] of the trust monies represented by our statutory
Fund'" and must give full effect to those provisions designed to protect the
Fund, underscoring that "[t]he doctrine of liberal construction relates to the
scope of the legislation and not to the proof or the evidence necessary to
establish compliance with its terms and conditions." Szczesny v. Vasquez, 71
N.J. Super. 347, 358-359 (App. Div. 1962). The judge quoted the Supreme
Court's observation that "[t]o be eligible for Fund benefits, claimants must
comply with numerous procedural requirements." Jimenez, 152 N.J. at 343.
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The judge concluded plaintiff failed to establish he was a qualified
person under N.J.S.A. 39:6-62 because he had not satisfactorily demonstrated
that he was without insurance coverage on the date of the accident . The judge
further found that plaintiff had not complied with the notice requirements of
N.J.S.A. 39:6-65 and N.J.A.C. 11:3-26.1 because he'd not provided either
proof of residency or his social security number within the 180-day statutory
period.
The judge rejected plaintiff's argument on reconsideration that although
he'd "dispensed with the formality of the Affidavit of No Insurance," he'd
provided his social security number at deposition, answered "no" to all
provisions of question 12 on the affidavit in support of UCJF eligibility about
the ownership of autos on the date of the accident, and responded to PLIGA's
interrogatories certifying he "live[d] alone" and did "not own a motor vehicle,"
thereby satisfying the statutory notice requirement. The judge denied the
motion for reconsideration, finding the notice provisions of the statute are
clear and that the court was not "at liberty to modify or re-legislate" the
protective restrictions embodied in the statute's conditions precedent for
recovery. Szczesny, 71 N.J. Super. at 358.
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Plaintiff appeals, arguing the order dismissing the complaint should be
reversed because he has established he is a qualified person under N.J.S.A.
39:6-62, and he complied with the notice requirements for recovering benefits
from the Fund. We disagree.
"Every competent person is conclusively presumed to know the terms of
the statute and those physically able to meet the conditions precedent are
obliged to do so." Szczesny, 71 N.J. Super. at 358. Plaintiff nowhere explains
why the forms he filed two days after PLIGA moved to dismiss his complaint,
nearly ten months after the accident and four months after the 180-day
statutory notice deadline of April 27, 2022, could not have been filed prior to
that date. He does not claim he was physically or mentally incapable of doing
so, the only exceptions allowed by the legislature for the failure to give timely
notice. See Giacobbe v. Gassert, 29 N.J. 421, 425-26 (1959).
As the trial court noted, "the Fund was never intended to make every
claimant whole or to compensate all accident victims; rather, it was intended to
'offer some measure of relief to those who come within the class intended to be
protected.'" Jimenez, 152 N.J. at 342-343 (quoting Unsatisfied Claim &
Judgment Fund Bd., 138 N.J. at 189). "Only claimants who are statutorily
qualified under N.J.S.A. 39:6-62 may recover benefits under the Fund." Id. at
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341-342. The purpose of the notice provisions of N.J.S.A. 39:6-65 and
N.J.A.C. 11:3-26.1 is to allow PLIGA to ensure that only qualified claimants
have access to the fund. Jimenez, 152 N.J. at 343.4
Applying those principles here, it is plain to us the trial court was correct
to find plaintiff ineligible to recover benefits from the Fund. It is undisputed
that plaintiff did not file the PLIGA forms, first requested in December 2021,
until PLIGA filed its notice to dismiss in August 2022, well beyond the 180-
day deadline. And while it is certainly true, as plaintiff noted in his motion for
reconsideration, that the forms are not required under N.J.A.C. 11:3-26.1(b)
and he submitted some of the necessary information in his answers to
4
The Court in Jimenez noted in the case of hit-and-run accidents, N.J.S.A. 39:6-
78(a)-(f) requires
that: (a) the plaintiff has given the Board written notice
of intent to make a claim within the time permitted
by N.J.S.A. 39:6-65, (b) the injuries are not covered by
workers' compensation laws, (c) the plaintiff was not
the owner of an uninsured motor vehicle at the time of
the accident or operating an automobile in violation of
an order of suspension or revocation, (d) the plaintiff
has a cause of action against the operator or owner of
the hit-and-run vehicle, (e) all reasonable efforts have
been made to identify the vehicle and its owner, and (f)
the action is not brought on behalf of an insurer under
the circumstances prohibited by N.J.S.A. 39:6-70(l).
[152 N.J. at 343.]
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interrogatories filed within the 180-day period, he ignores that the critical
information provided there about living alone and that there were no motor
vehicles associated with his household was inaccurate, as was his certification
that there were no witnesses to the accident.
Plaintiff did not correct those statements until his deposition after the
180-day deadline had passed. Leaving aside the inaccuracy of some of the
information he timely provided to PLIGA, the Association is not required to
sort through plaintiff's submissions over several months' time to glean the
information required by the notice statute in bits and pieces. N.J.A.C. 11:3-
26.1(c) expressly provides that
A notice of intention to make a claim that does not
contain the items identified in N.J.A.C. 11:3-26.1(a) 1
through 8 shall be returned to the sender and deemed
to be not filed with the Unsatisfied Claim and
Judgment Fund (UCJF) for the purpose of complying
with N.J.S.A. 39:6-65 and shall not toll the statute of
limitations.
As our Supreme Court has long held, "[t]he public interest demands that
the Fund, although a trust fund for those individuals injured by financially
irresponsible or unidentified operators of motor vehicles, be administered in a
fashion to assure that only those persons legitimately entitled to participate in
its benefits are paid therefrom." Douglas v. Harris, 35 N.J. 270, 279 (1961).
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To that end, "[e]very provision of the Act designed for protection of the Fund
should be given full consideration and effect." Myers v. Cave, 55 N.J. Super.
185, 198 (App. Div. 1959) (quoting Re Sinclair v. Woodward, (Ont. Ct.
App. 1951) O.W.N. 816, 1 D.L.R. 398, 400 (1952)). As we long ago noted, "it
was not the legislative intent to make access to the Fund easy"; "each
application should be closely examined" to ensure the intent of the legislature
to limit the fund to qualified claimants is faithfully carried out. Szczesny, 71
N.J. Super. at 358. The trial court fulfilled that responsibility here.
Finally, we note our obligation to fully recognize the express mandates
of the statute, "without regard to any notions of our own or of the parties as to
the fairness, procedural expediency, or administrative wisdom of any of the
legislative directions." Myers, 55 N.J. Super. at 193-194. It is not enough to
contend "that no abuse or fraud is shown in the particular instance.
Prophylactic statutory measures must be applied uniformly, or the legislative
design is inevitably subverted over the long run." Id. at 194.
Affirmed.
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