Danisi v. Thuemling

• Decision Date: 19 December 1960
• Docket Number: No. 618,618
• Parties: Joseph DANISI, Plaintiff-Respondent, v. Edwin J. THUEMLING and Eldon E. Betts, Defendants, and Unsatisfied Claim and Judgment Fund Board, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 118

72 N.J.Super. 118

178 A.2d 26

Joseph DANISI, Plaintiff-Respondent, v. Edwin J. THUEMLING and Eldon E. Betts, Defendants, and Unsatisfied Claim and Judgment Fund Board, Defendant-Appellant.

No. 618.

Superior Court of New Jersey, Appellate Division.

Argued Dec. 19, 1960.

Re-argued Jan. 15, 1962.

Decided Jan. 30, 1962.

Bruce D. Herrigel, Clinton, for respondent (Herrigel & Herrigel, Clinton, attorneys).

Theodore I. Botter, Asst. Atty. Gen., for appellant Unsatisfied Claim and Judgment Fund Board of New Jersey (David D. Furman, Atty. Gen., of New Jersey, attorney).

Before Judges PRICE, SULLIVAN and LEWIS.

The opinion of the court was delivered by

SULLIVAN, J.A.D.

Defendant Unsatisfied Claim and Judgment Fund Board (hereinafter called the Board) appeals from an order directing it to pay $4,625.75 to plaintiff on account of a judgment obtained by plaintiff in a motor vehicle accident case.

On January 21, 1959 plaintiff, owner of a tractor-trailer which he was operating under a leasing agreement with his employer J & R Transport, was involved in a collision with another tractor-trailer owned by defendant Edwin Thuemling, and operated by defendant Eldon Betts. As a result of the accident which happened on Route 22, Lebanon Township, New Jersey, plaintiff's truck was damaged and he suffered personal injuries which allegedly incapacitated him for three weeks. On March 10, 1959 plaintiff filed suit against Thuemling and Betts, both residents of Iowa, for property damage and personal injuries and, on May 6, 1959, defendants not having appeared or answered, their default was entered.

On May 11, 1959 plaintiff's attorneys wrote the following letter to the Security Responsibility Section of the Department of Motor Vehicles:

'Dear Sir:

We represent Joseph Danisi, who was the owner and operator of a truck, registered in New Jersey, which was involved in a collision on January 21, 1959, in the Borough of Lebanon, on Route 22, New Jersey. The name of the driver of the other vehicle was Eldon Betts, 807 North Illinois Street, Lake City, Iowa and the owner of the other vehicle was Edwin Thuembling of Laurens, Iowa.

At the scene of the accident Mr. Danisi exchanged credentials with Mr. Betts and Mr. Betts advised my client, Mr. Danisi, that he was insured by a liability insurance policy. In reliance upon this representation, we instituted suit against Mr. Betts and Mr. Thuembling. A default has been entered against both defendants based upon their failure to answer the complaint. The default was entered in the Superior Court on May 6, 1959. We have not been advised that the insurance company has disclaimed on the policy, but we wish to serve notice upon the Fund, in accordance with our Rs. 39--6--56, in order to provide for the eventuality that the defendants, Thuembling and Betts are in fact, presently not insured.

Kindly advise whether the form of this letter constitutes notice under the act and if not, kindly forward to me the necessary forms.

Very truly yours,

/s/ Bruce D. Herrigel

For the Firm'

This letter was forwarded to the Board and taken as a notice of intention to make claim under the provisions of the Unsatisfied Claim and Judgment Fund Law, N.J.S.A. 39:6--61 et seq. However, the Board in its letter to plaintiff's attorneys pointed out that the notice was received 'beyond the ninety-day period required by R.S. 39:6--65 (N.J.S.A.).'

The pertinent provisions of N.J.S.A. 39:6--65 are as follows:

'Any qualified person, or the personal representative of such person, who suffers damages resulting from bodily injury or death or damage to property 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 90 days after the accident, as a condition precedent to the right thereafter to apply for payment from the fund, give notice to the board, the form and contents of which shall be prescribed by the board, of his intention to make a claim thereon for such damages if otherwise uncollectible; provided, any such qualified person may, in lieu of giving said notice within said time, make proof to the court on the hearing of the application for the payment of a judgment (a) that he was physically incapable of giving said notice within said period and that he gave said notice within 90 days after he became physically capable to do so or in the event he did not become so capable, that a notice was given on his behalf within a reasonable period, or (b) that he gave notice to the board within 15 days of receiving notice that an insurer had disclaimed on a policy of insurance so as to remove or withdraw liability insurance coverage for his claim against a person or persons who allegedly caused him to suffer damages. * * *'

Plaintiff's attorneys thereupon wrote to the Board stating that 'It should be understood that this claim was not made with the intention that it comes within the 90 day provision of the statute but rather within the exception thereto which allows the claim to be made within 15 days after a disclaimer is received.'

The Board, with the consent of plaintiff, then had the default set aside under N.J.S.A. 39:6--74 and 75, and defended the action on behalf of the defendants. The case was tried on February 19, 1960 and a judgment entered in favor of plaintiff for $4,725.75 for property damage, and $500 for personal injuries. At the trial plaintiff testified that immediately after the accident the driver of the other vehicle told him 'my boss' got insurance.'

Plaintiff next applied under N.J.S.A. 39:6--69 for an order directing payment by the Fund of his judgment for property damage less the statutory deduction of $100. Payment of the judgment for personal injuries out of the Fund was not sought because plaintiff had workmen's compensation coverage for such injuries N.J.S.A. 39:6--70(a).

The...