Jones v. Heymann

• Decision Date: 03 April 1974
• Parties: Nathaniel P. JONES, Plaintiff, v. Ronald M. HEYMANN, Director of Motor Vehicles of the State of New Jersey, Defendant-Appellant, and Camden Fire Insurance Association, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 542

127 N.J.Super. 542

318 A.2d 43

Nathaniel P. JONES, Plaintiff, v. Ronald M. HEYMANN, Director of Motor Vehicles of the State

of New Jersey, Defendant-Appellant,

and

Camden Fire Insurance Association, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued Jan. 7, 1974.

Submitted for Determination March 18, 1974.

Decided April 3, 1974.

F. Herbert Owens, III, Camden, for defendant-appellant (Kisselman, Deighan, Montano & Summers, Camden, attorneys; Carl Ahrens Price, Camden, on the brief).

William R. Powers, Jr., Moorestown, for defendant-respondent (Moss & Powell, Moorestown, attorneys).

Before Judges COLLESTER, LYNCH and MICHELS.

The opinion of the court was delivered by

MICHELS, J.S.C., Temporarily Assigned.

Defendant Director of Motor Vehicles pursuant to leave of this court appeals from a denial of his motion for summary judgment in an action instituted against him under the provisions of N.J.S.A. 39:6--78.

The complaint initially filed against the Director sought recovery for damages sustained as the result of a 'no contact' hit-and-run accident under the Unsatisfied Claim and Judgment Fund Law. Plaintiff alleged in the complaint that he was injured in an accident as a result of being forced off the road by an unknown driver of an unidentified motor vehicle. The Director moved for summary judgment on the ground that plaintiff was covered under the uninsured motorist endorsement to his policy of insurance and therefore was not a 'qualified person' within the meaning of N.J.S.A. 39:6--62 and was barred from recovery under the provisions of N.J.S.A. 39:6--78. The motion was granted, but without prejudice and subject to being reopened pending the outcome of an arbitration proceeding on the issue of coverage.

The arbitrators ruled that plaintiff was not entitled to coverage under the uninsured motorist endorsement because the accident giving rise to the injury was a 'no contact' accident, and there was no corroboration of plaintiff's testimony, as required by the policy. Following that decision plaintiff moved to set aside the prior order for summary judgment which was granted and the complaint was reinstated.

Plaintiff thereupon filed an amended complaint adding as a party defendant his insurance carrier, Camden Fire Insurance Association (Camden). Following the filing of answers by both defendants in which liability was denied by each, the Director again moved for summary judgment on the ground that the requirement of corroboration in a 'no contact' hit-and-run accident as set forth in the uninsured motorist endorsement to the Camden policy was void as against public policy since the coverage afforded under such endorsement must be interpreted as broadly as the protection afforded by the Unsatisfied Claim and Judgment Fund Law. The trial judge denied the motion for summary judgment on the ground that there was insufficient evidence before it upon which to decide the issue.

We are of the view that the court was in error in this regard. The salient facts concerning the happening of the accident were uncontroverted, the Camden policy of insurance and the uninsured motorist endorsement issued thereto were before the court by agreement, and both counsel for the Director and for Camden conceded at oral agreement that the uninsured motorist endorsement had been approved by the Commissioner of Insurance. Thus, there was no genuine issue as to the material facts involved, and the matter was ripe for a decision on the merits.

The pertinent provisions of the uninsured motorist endorsement are as follows:

The company will pay all sums which the insured * * * shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury or property damage caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle * * *.

'hit-and-run vehicle' means (i) a highway vehicle which causes an accident resulting in bodily injury to an insured arising out of physical contact of such vehicle with the insured or with a vehicle which the insured is occupying at the time of the accident, or (ii) a highway vehicle which without physical contact with the insured or with a vehicle which the insured is occupying at the time of the accident causes bodily injury to an insured arising out of an accident in New Jersey, provided:

(d) with respect to subdivision (ii) the facts of such accident can be corroborated by competent evidence other than the testimony of any person having a claim under this or any other similar insurance as the result of such accident.

The Director contends that it is the legislative intent that the hit-and-run coverage, which N.J.S.A. 17:28--1.1 requires that every automobile liability policy include, must be interpreted as broadly as the coverage provided by the Fund under N.J.S.A. 39:6--78. We disagree. N.J.S.A. 17:28--1.1 provides in pertinent part:

No automobile liability policy or renewal of such policy, or insurance insuring against loss resulting from liability imposed by law for bodily injury or death, sustained by any person arising out of the ownership, maintenance or use of a motor vehicle shall be issued in this State with respect to any motor vehicle registered or principally garaged in this State unless it includes coverage * * * Under provisions approved by the Commissioner of Insurance, for payment of all or part of the sums which the insured or his legal representative shall be legally entitled to recover as damages from the operator or owner of an uninsured automobile, Or hit and run automobile as defined in section 18 of chapter 174 of the laws of 1952 (C. 39:6--78), Because of bodily injury, sickness or disease, including death resulting therefrom, sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured or hit and run automobile anywhere within the United States or Canada. * * * (Emphasis supplied)

Thus, it is required that every liability policy include coverage for hit-and-run accidents as defined in N.J.S.A. 39:6--78 under provisions approved by the Commissioner of Insurance. N.J.S.A. 39:6--78, entitled 'Hit-and-run cases,' defines hit-and-run accidents as follows:

When the death of, or personal injury to, any person arises out of the ownership, maintenance or use of a motor vehicle in this State on or after April 1, 1955, but the identity of the motor vehicle and of the operator and owner thereof cannot be ascertained or it is established that the motor vehicle was at the time said accident occurred, in the possession of some person other than the owner without the owner's consent and that the identity of such person cannot be ascertained, any qualified person who would have a cause of action against the operator or owner or both in respect to such death or personal injury may bring an action therefor against the director in any court of competent jurisdiction. * * *

The provisions of the uninsured motorist endorsement, while requiring police notification and corroboration of an accident, do not conflict with the above statutory definition of a hit-and-run accident, that is, an accident which 'arises out of the ownership, maintenance or use of a motor vehicle * * * the identity of (which) and of the operator and owner thereof cannot be ascertained. * * *'

The legislative purpose of N.J.S.A. 17:28--1.1 has been set forth in Exum v. Marrow, 112 N.J.Super. 570, 272 A.2d 298 (Law...