Joseph v. Moore
| Decision Date | 31 July 1968 |
| Docket Number | No. L--22100,L--22100 |
| Citation | 102 N.J.Super. 59,245 A.2d 232 |
| Parties | Mannie JOSEPH, Plaintiff, v. Clifton MOORE et al., Defendants. |
| Court | New Jersey Superior Court |
Robert J. Sussman, Bloomfield, for plaintiff (Rubin, Dolgoff & Sussman, Bloomfield, attorneys).
Joel N. Werbel, Newark, for defendant (Samuel A. Gennet, Newark, attorney; John D. Methfessel, Newark, on the brief).
This matter comes before the court on motion to order the State Treasurer to pay a 'fair and equitable' settlement between plaintiff and defendant Clifton Moore and the Unsatisfied Claim and Judgment Fund, pursuant to N.J.S.A. 39:6--69, 70 and 71, involving interpretations of these provisions of N.J.S.A. 39:6--65.
'* * * that he (plaintiff) 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. * * *' (Emphasis supplied)
The court makes the following findings of fact which, although not stipulated, are undisputed.
On March 2, 1965, at 10:42 A.M., while standing on Washington Street, Newark, New Jersey, plaintiff Mannie Joseph was struck by a 1958 Chrysler driven by defendant Clifton Moore and owned by one Katherine Mavraides. Joseph sustained injuries and was hospitalized as a result.
At noon of the same day, a report of the accident was submitted to the Newark Police Department, setting forth that the motor vehicle involved was a 1958 Chrysler and listing Moore as the driver.
On April 23, 1965 suit was instituted by plaintiff against Moore, defendant operator, and Katherine Mavraides, defendant owner. On May 1, 1965 Katherine Mavraides was served with a summons and complaint. On May 5, 1965 Moore was served with summons and complaint.
On May 5, 1965 plaintiff's attorney received a stipulation extending time to answer from DeCotiis & Morrison, which law firm had been assigned by Empire Mutual Insurance Company (Empire) to handle the defense of Clifton Moore and Katherine Mavraides. An answer was filed on June 14, 1965. Meanwhile, although he had prepared a notice of intention on May 19, 1965 for filing with the Unsatisfied Claim and Judgment Fund Board, plaintiff's attorney did not file it under the circumstances.
On or about August 9, 1965 plaintiff's attorney and all other parties were served with a notice of motion by DeCotiis & Morrison, returnable September 17, 1965. The notice was executed by DeCotiis & Morrison as 'attorneys for Empire Mutual Insurance Company' rather than as 'attorneys for Katherine Mavraides and Clifton Moore', as theretofore.
The notice stated that an order would be sought 'relieving them as counsel for Katherine Mavraides' and 'permitting the Empire Mutual Insurance Company to Withdraw from the defense of the above entitled matter.' (Emphasis supplied). The grounds were that the answer filed on behalf of Katherine Mavraides was filed through 'inadvertence and mistake concerning insurance coverage of the aforementioned Katherine Mavraides.'
The 1958 Chrysler owned by Katherine Mavraides was the same car that struck plaintiff on March 2, but Empire claimed that the Chrysler was not covered by her insurance policy with Empire. Empire claimed it had, on March 2, 1965 insured, under the same policy, two motor vehicles belonging to her. The vehicles insured were a 1956 Buick four-door sedan and a 1955 Ford station wagon. These were the only automobiles owned by Katherine Mavraides which were specifically insured by Empire on the date of the accident.
Empire's claims records reveal that on May 12, 1965 an accident was reported to Empire as having occurred on March 2, 1965, between one Mannie Joseph (plaintiff) and Clifton Moore (defendant). Moore was reported (by Newark police report of March 2, 1965) as driving the Chrysler that belonged to Katherine Mavraides.
Immediately upon receiving the claim, Empire turned it over to the law firm of DeCotiis & Morrison, counsel for Empire, for defense and handling. Subsequent investigation revealed that the car involved in the accident and driven by Clifton Moore was a 1958 Chrysler. This latter vehicle, although owned by Katherine Mavraides, was not an insured vehicle under any policy placed with Empire, as subsequently discovered by it.
Prior to the accident Katherine Mavraides had instructed her husband to place the Chrysler with Clifton Moore's garage in Newark for repairs. After the repair work was completed Moore drove the Chrysler to a hardware store on Washington Avenue for the purpose of 'purchasing a clamp' for use in the repair of another vehicle, although owned by Katherine Mavreentering the car, the accident occurred between Moore and plaintiff.
Upon receipt of the foregoing notice of motion to withdraw, the attorney for plaintiff filed a notice of intention to make claim against the Unsatisfied Claim and Judgment Fund, which notice was received by the Fund August 16, 1965. The Notice was filed within 15 days of the notice of motion to withdraw (August 12, 1965) but more than 90 days from the happening of the accident. On January 4 1966 an order was signed by Judge Kenarik, allowing the attorneys for Empire to be 'relieved' as counsel for Clifton Moore and Katherine Mavraides.
Following this order Empire sent a letter to Katherine Mavraides on January 17, 1966 by certified mail, notifying her of its withdrawal from her defense and insurance coverage, stating, among other things:
'* * * We are disclaiming coverage for an accident that occurred on March 2, 1965, between plaintiff Mannie Joseph and Clifton Moore, the said Moore allegedly driving an automobile revealed to be a 1958 Chrysler, serial no. LC33218 and allegedly belonging to Katherine Mavraides.' (Emphasis supplied)
On February 28, 1966 another order was signed by Judge Glickenhaus, relieving the law firm of Clinton & Steinberg as attorneys for Clifton Moore due to his failure to cooperate and pay all fees, and ordering that a 'true but uncertified copy of this order be sent to the Unsatisfied Judgment Claim Fund with a letter of explanation concerning this order and proceedings heretofore taken place.'
On March 2, 1966 Irving Steinberg, counsel for Clifton Moore, sent a letter pursuant to Judge Glickenhaus' order, giving a detailed history of the litigation, including Empire's withdrawal from coverage of Katherine Mavraides, and Steinberg's own withdrawal as counsel to Moore.
On August 24, 1966 an order was entered permitting the law firm of Samuel A. Gennet (who had been retained by the Fund) to file an answer on behalf of Moore. The answer was filed. On May 27, 1967 another order, signed by Judge Conklin, was entered, dismissing the complaint against defendant Katherine Mavraides on the ground that, as a matter of law, no agency existed between her and Moore.
The only defendant left in the case is Moore, who (as stated before) had driven the Chrysler without Mavraides' permission on business of his own 'to get a clamp for another car' on the day of the accident. Moore is not locatable at this time, despite attempts to subpoena him.
Nonetheless, the attorneys for plaintiff and the Fund agreed to settle the case for $6,000, without costs. The settlement was approved by the Unsatisfied Claim and Judgment Fund Board of New Jersey.
This settlement was also confirmed by Judge Conklin, who reviewed the proceedings and found the settlement to be 'fair and equitable.' He ordered judgment to be entered against Moore in the amount of $6,000, without costs, with the proviso, 'although said Fund has not At this time agreed to pay this sum'. (Emphasis supplied). The judgment was entered on April 5, 1968.
Thereafter, application for payment of said amount was made on plaintiff's behalf by notice of motion, returnable before this court. The application, pursuant to N.J.S.A. 39:6--69, 70 and 71, sought an order directing the State Treasurer to pay plaintiff the $6,000 agreed upon in the court-approved settlement.
Plaintiff contends that he complied with all notice requirements of N.J.S.A. 39:6--65 by sending in a notice of intention to file suit within 15 days after having received the notice of motion to withdraw on the part of DeCotiis & Morrison, the attorneys assigned to Katherine Mavraides by Empire. The Fund objects to payment, denying compliance under N.J.S.A. 39:6--65.
A further issue in the case is plaintiff's contention that the Fund, by its conduct hereinbefore recited leading up to a courtapproved settlement, is estopped from raising the defense of no disclaimer. The Fund denies it is so estopped, citing Danisi v. Thuemling, 72 N.J.Super. 118, 178 A.2d 26 (App.Div.1962).
As the facts in this case clearly demonstrate, Empire's notice of motion was one 'to withdraw.' The affidavit was entitled 'Affidavit in Support of Motion to Withdraw.' (Emphasis supplied). The order by Judge Kenarik on January 4, 1966 recited '* * * it appearing that Empire Mutual Insurance Company does not afford insurance coverage to Katherine Mavraides or Clifton Moore.
It is on this 4th day of January, 1966
ORDERED that the firm of De Cotiis & Morrison be relieved as counsel for...
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...of the word "disclaimer" in this case would be contrary to the purposes of the UCJF Law. Similarly, in Joseph v. Moore, 102 N.J.Super. 59, 245 A.2d 232 (App.Div.1968), the court held that an insurer's notification that its policy did not cover the new car that its policy holder had bought c......
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