MARIELA MARTINEZ VS. KEVIN J. HERDER (L-8529-14, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1534-17T3

MARIELA MARTINEZ,

Plaintiff-Appellant/
Cross-Respondent,

v.

KEVIN J. HERDER and NEWARK
POLICE DEPARTMENT,

Defendants,

and

CITY OF NEWARK,

Defendant/Third-Party Plaintiff-
Respondent/Cross-Appellant,

v.

NATIONAL CONTINENTAL
INSURANCE COMPANY and
PROGRESSIVE INSURANCE
COMPANY,

Third-Party Defendants.
________________________________
 Argued August 1, 2019 – Decided September 5, 2019

Before Judges Whipple and Firko.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-8529-14.

Michael F. Wiseberg argued the cause for
appellant/cross-respondent.

Wilson David Antoine argued the cause for
respondent/cross-appellant (Kenyatta K. Stewart,
Acting Corporation Counsel, attorney; Wilson David
Antoine, Assistant Corporation Counsel, on the briefs).

PER CURIAM

In this automobile negligence action, plaintiff Mariela Martinez appeals

from a September 29, 2017 Law Division order granting defendant, City of

Newark, summary judgment dismissal of her claim seeking payment of her

medical expenses as an eligible injured person under her husband's special

automobile insurance policy authorized by N.J.S.A. 39:6B-1(c) and as described

in N.J.S.A. 39:6A-3.3. Plaintiff also appeals from the November 3, 2017 order

denying her motion for reconsideration of the September 29, 2017 order. The

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City filed a protective cross-appeal seeking affirmance of both orders. We

affirm both orders.1

I.

The underlying facts are undisputed. On March 5, 2013, a City truck

operated by its employee, Kevin Herder, rear-ended the Hyundai Elantra

operated by plaintiff and owned by her husband, Enzell Martinez. Enzell

certified that on the day of the accident, he gave plaintiff permission to operate

the Elantra "because she needed to use it to go to a job interview that day." At

her deposition, plaintiff testified she and her husband owned two cars at the time

of the accident and that she drove the Elantra "every other day." Plaintiff was

uninsured on the day of the accident, but her husband had a special insurance

policy with National Continental Insurance Company (NCIC) insuring the

Elantra that only afforded emergency personal injury protection and death

benefit coverage. 2 Enzell qualified for this special insurance because he was

receiving Medicaid benefits at the relevant time. The NCIC policy is limited by

N.J.S.A. 39:6A-3.3(a), which provides:

1
On August 27, 2018, we denied the City's motion, M-8974-17, to suppress the
appeal or strike portions of plaintiff's brief and appendix but permitted the City
to present its arguments in its opposition brief.
2
Commonly referred to as the Dollar-A-Day plan.
A-1534-17T3
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 In order to assist certain low income individuals in this
State and encourage their greater compliance in
satisfying the mandatory private passenger automobile
insurance requirements, the Legislature intends to
establish a special automobile insurance policy. The
special automobile insurance policy shall be offered
only to individuals who qualify for and are actively
covered by designated government subsidized
programs in the State. For the purpose of this section,
"eligible low income individual" means an individual
who meets the income criteria established by the
commissioner by regulation. In setting the low income
criteria, the commissioner shall limit availability to
those persons eligible and enrolled in the federal
Medicaid program.

Section N of Enzell's NCIC policy defined "named insured" as:

the person named as the insured on the Policy
Declarations who is eligible for and enrolled in the
Federal Medicaid program, as defined by the New
Jersey Department of Banking and Insurance, and is a
licensed, registered owner of a private passenger auto
registered or principally garaged in New Jersey.

The NCIC policy defined dependent as a "dependent member of the named

insured's family, as defined in the Federal Medicaid Program, who resides in the

same household and is enrolled in the Medicaid Program as defined by the New

Jersey Department of Banking and Insurance." Plaintiff admitted at her

deposition that she is neither a named insured, nor a Medicaid covered family

member under her husband's policy.

The policy defines an eligible injured person as:

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 1. the named insured or any dependent of the named
insured, if the named insured or dependent sustains
bodily injury

a. as a result of any accident while
occupying, entering into, alighting from, or
using a private passenger auto . . . .

The NCIC policy only provided emergency injury protection benefits up

to $250,000. In her certification submitted in opposition to the City's summary

judgment motion, plaintiff stated, "[l]ess than [thirty] days before [the] collision,

I became a citizen of the United States." "I therefore did not qualify for

Medicaid on the date of the collision . . . ."

Following the accident, plaintiff was transported to University Hospital

where she was evaluated, prescribed pain medication, and discharged that day.

According to plaintiff, she sustained an L5-S1 disc herniation and disc bulges at

C4-5, C5-6, and C6-7 and underwent "multiple epidural injections" as a result

of the collision. 3 Our review of the record reveals no expert medical opinion

was served on behalf of plaintiff addressing her diagnoses, prognoses, or

permanency of any of her injuries proximately caused by the accident.

The trial court found "[n]either party disputes that [p]laintiff was not

covered by Medicaid at the time of the accident[,]" and "[t]aking Section II(E)

3
Plaintiff did not provide any healthcare records or reports in her appendix.
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on its face, however, to be eligible as a dependent of an insured an individual

must be enrolled under Medicaid." Therefore, the trial court concluded,

"[p]laintiff is not covered under the NCIC special automobile insurance policy."

On appeal, plaintiff argues one point: as a permissive user of her

husband's vehicle on the date of the collision, she met the definition of an

eligible injured person as defined in the NCIC special automobile insurance

policy, entitling her to emergency medical expense coverage, even though she

was not and could not be enrolled in the Medicaid program under a "catch-all"

category for individuals injured while operating a vehicle but who are not a

named insured or a dependent of the insured. We see no merit to plaintiff's

argument.

II.

[W]e "review the trial court's grant of summary judgment de novo under

the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l

Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). A motion for

summary judgment should be granted "if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact challenged and that the

moving party is entitled to a judgment or order as a matter of law." R. 4:46-

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2(c). The evidence must be viewed in "the light most favorable to the non-

moving party[.]" Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524

(2012).

Determining whether there is a genuine issue for trial "does not require a

court to turn a blind eye to the weight of the evidence; the 'opponent must do

more than simply show that there is some metaphysical doubt as to the material

facts.'" Triffin v. Am. Int'l Grp., Inc., 372 N.J. Super. 517, 523-24 (App. Div.

2004) (quoting Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358,

1363 (3d Cir. 1992)). Opposition to a motion for summary judgment requires

"competent evidential material" beyond mere "speculation" and "fanciful

arguments[.]" Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J.

Super. 556, 563 (App. Div. 2005). To survive summary judgment, the opposing

party must, with the benefit of all favorable inferences, show a rational

factfinder could determine the plaintiff met her burden of proof. Globe Motor

Co. v. Igdalev, 225 N.J. 469, 481 (2016).

The NCIC policy allows for payment of medical expense benefits for

emergency care pursuant to Section IV(A)(1), "for bodily injury sustained by an

eligible injured person, caused by an accident and arising out of the . . . use,

including loading or unloading, of your insured auto . . . ." Plaintiff argues that

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she satisfies the definition of an "eligible injured person" pursuant to Section

II(E)(00) of the policy which defines the term as "1. the named insured or any

dependent of the named insured, if the named insured or dependent sustains

bodily injury[:] a. as a result of any accident while occupying . . . or using a

private passenger auto[,]" or "2. any other person who sustains bodily injury

while occupying, entering into, alighting from, or using your insured auto with

the permission of the named insured."

Here, viewing the facts most favorable to plaintiff, we cannot conclude

that she is a permissive user entitled to benefits under the NCIC policy omnibus

provision because she was not enrolled in Medicaid and was not Medicaid

eligible at the time of the accident.

"In any matter requiring our consideration of a statute, our essential task

is to understand and give effect to the intent of the Legislature." Pizzullo v. N.J.

Mfrs. Ins. Co., 196 N.J. 251, 263-64 (2008). The Dollar-A-Day plan is the

lowest cost automobile policy established by our Legislature with the stated

purpose "to assist certain low income individuals in [New Jersey] and encourage

their greater compliance in satisfying the mandatory private passenger

automobile insurance requirements . . . ." N.J.S.A. 39:6A-3.3(a); see also

Sanders v. Langemeier, 199 N.J. 366, 376 (2009) ("the Dollar-A-Day plan [] is

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available only to certain individuals who qualify as 'eligible low income

individuals' and who are also enrolled in the Federal Medicaid Program.")

(emphasis added). Plaintiff admittedly fails to satisfy this criteria. The

Legislature's intent is clearly expressed and we see no basis to extend the Dollar-

A-Day plan to a permissive user of a vehicle who has not been determined

eligible under the statute at issue. This would be in derogation of the

Legislature's intent, which is specifically defined.

To the extent we have not addressed any of plaintiff's remaining

arguments, it is because they are without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E). In light of our decision, we do not

need to address the issues raised in defendants' cross-appeal.

Affirmed.

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