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Tesfamariam v. District of Columbia Dept. of Consumer and Regulatory Affairs

August 11, 1994

ALMAZ TESFAMARIAM, PETITIONER
v.
DISTRICT OF COLUMBIA DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS, INSURANCE ADMINISTRATION, RESPONDENT



Petition for Review of a Decision of the District of Columbia Department of Consumer and Regulatory Affairs, Insurance Administration

Before Steadman, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: Petitioner Almaz Tesfamariam seeks review of a decision by the Insurance Administration of the Department of Consumer and Regulatory Affairs denying her compensation from the Uninsured Motorist Fund. We reverse and remand for further proceedings by the agency.

I.

FACTS AND PROCEDURAL HISTORY

On January 17, 1988, at approximately 3:00 a.m., Ms. Tesfamariam, a housekeeper at a Holiday Inn, was a passenger in a taxicab *fn1 which was being operated by her husband, Selemun Woldu. According to Ms. Tesfamariam, Mr. Woldu failed to stop at a flashing red traffic light, and the cab was struck on the passenger side by an oncoming vehicle owned and operated by Kenneth P. Barzey. Ms. Tesfamariam suffered injuries, some of them permanent, to her head, neck, back and knee. Ms. Tesfamariam required prolonged medical treatment and missed almost a year of work. She claimed before the agency that she incurred medical expenses of $14,522.50 and that she lost wages in the amount of $13,950.00.

The taxicab in which Ms. Tesfamariam was riding was registered in Mr. Woldu's name; Ms. Tesfamariam has never had an operator's license and does not drive at all. Mr. Woldu carried no liability insurance. Ms. Tesfamariam had health insurance through her employer with Kaiser Permanente, a health maintenance organization (HMO), under a plan which entitled her to benefits only if her treatment was provided by Kaiser-affiliated health care providers. Ms. Tesfamariam apparently believed that the plan only covered illness and not accidental injuries, and she was treated by physicians who were not affiliated with Kaiser. As a result, her medical expenses have not been reimbursed by Kaiser.

Following the accident, Ms. Tesfamariam filed suit in the Superior Court against Mr. Barzey. See Civil Action No. 88-CA-010188 (Super. Ct. D.C.). Mr. Barzey filed a third party claim against Mr. Woldu, claiming that Mr. Woldu was responsible for the accident. Mr. Woldu defaulted, and Ms. Tesfamariam won a judgment against him in, the amount of $128,472.00. *fn2 Except for a successfully garnished bank account in the amount of $412.62, however, Ms. Tesfamariam was unable to collect the judgment.

Ms. Tesfamariam next filed a claim against the District of Columbia's Uninsured Motorist Fund ("the Fund") pursuant to D.C. Code § 35-2114 (1993). By letter dated March 2, 1992, her application for benefits was denied on the ground that she was insured by Kaiser Permanente at the time of the accident and that her alleged wage loss was not properly documented. The initial denial was not based on any claim that she was an owner of the vehicle.

Ms. Tesfamariam requested an administrative hearing. On May 11, 1992, the presiding Administrative Law Judge (ALJ) convened a hearing, but he aborted it because he became concerned about Ms. Tesfamariam's limited ability to communicate in English. On June 2, 1992, a second hearing was held, and an Ethiopian interpreter was made available to translate the proceedings from and into Ms. Tesfamariam's native Tigrane. After the hearing, the ALJ issued a written decision in which he held that Ms. Tesfamariam was not entitled to reimbursement from the Fund either for her medical expenses or for her lost wages. The ALJ reasoned that because Ms. Tesfamariam was married to Mr. Woldu and contributed to the expenses of household, and because she would have been entitled to a share of the family's assets, including the vehicle, in the event of a divorce proceeding, she was an "owner" of the motor vehicle and thus ineligible for benefits. The ALJ further concluded that Ms. Tesfamariam was an "insured" within the meaning of the Uninsured Motorist Fund statute. The agency upheld the ALJ's decision, and Ms. Tesfamariam sought judicial review in this court.

II.

LEGAL DISCUSSION

A. The Statute.

The Uninsured Motorist Fund was established in 1986 to provide compensation for victims of automobile accidents in the District of Columbia who "would not otherwise be compensated for loss." D.C. Code § 35-2114 (a). *fn3 The Fund, which is maintained by assessments on all automobile insurers, ...


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