Illegal Aliens

Can Illegal Aliens File Personal Injury Suits?

The United States Constitution permits rights of access to the courts by illegal aliens under the Fifth and Fourteenth Amendments to the United States Constitution.

New Jersey courts have reasoned that public policy would be undermined if employers were permitted to hire illegal aliens knowing that they would not be required to insure or absorb the cost of the injuries incurred by these illegal aliens in the course of their employment. Also, without the ability to file suit, insurance companies may be encouraged to insure undocumented workers in anticipation of being able to renege with impunity after a covered loss has occurred.

In Montoya v. Gateway Ins. Co., an alien illegally in the country sued to enforce personal injury protection (PIP) benefits of his no-fault automobile policy. The Superior Court, Law Division, Essex County, rendered judgment for the insured alien, and Gateway appealed. The Appellate Division, held that: (1) an alien illegally in the country is eligible at common law to sue in state courts for personal injuries; (2) plaintiff’s illegal status did not preclude him from recovering under the policy for medical expenses and there was no public policy against such recovery, and (3) plaintiff’s illegal status did not render his employment illegal so as to deprive him of the “occupational status” necessary to recover income continuation benefits.

In Mendoza v. Monmouth Recycling Corp., an illegal alien injured on job brought an action to recover workers’ compensation benefits. The Division of Workers’ Compensation dismissed the petition, and the illegal alien appealed. The Appellate Division, held that an illegal alien with work-related injuries is eligible for workers’ compensation benefits.

Thus, there is no question that an illegal alien is eligible at common law to sue in New Jersey for personal injuries sustained and to recover loss of earnings caused by the tortfeasor’s negligence. However, there are still limits to an undocumented worker’s ability to recover personal injury damages.

In Crespo v. Evergo Corp., the plaintiff, a former employee and an undocumented alien worker, claimed that Evergo refused to permit her to return to work after going on maternity leave. The New Jersey Appellate Division held that an undocumented alien who gained employment using fraudulent documentation was disqualified from legal employment and thus is ineligible for economic or non-economic recovery (i.e., back pay and reinstatement to her former position) under the New Jersey Law Against Discrimination (“LAD”).  The court made clear that Crespo’s claims arose from her wrongful termination and not from any mistreatment during the course of her employment.Additionally, although New Jersey grants undocumented alien workers access to Workers’ Compensation Courts despite their lack of authority to work in the United States, the state does not extend economic remuneration, such as unemployment benefits, to these workers in workers’ compensation cases.

By: Andrew L. Chambarry

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