Watford v. Unsatisfied Claim and Judgment Fund Bd.
| Decision Date | 23 February 1971 |
| Parties | Viola WATFORD, Plaintiff, v. UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, a Statutory Board of the State of New Jersey, Defendant. |
| Court | New Jersey Superior Court |
Perskie & Perskie, Wildwood, for plaintiff (David H. Romberger, Wildwood, on the brief).
Remo M. Croce, Deputy Atty. Gen., for defendant (George F. Kugler, Atty. Gen., attorney).
GALLNER, P.J.J.D.R.C. (temporarily assigned).
This matter is brought before this court on a motion for summary judgment addressed to a complaint seeking a declaratory judgment resulting from the Unsatisfied Claim and Judgment Fund Board (Fund) refusing to defend an action heretofore instituted by plaintiff against an uninsured motorist. The Fund denies responsibility because of plaintiff's failure to comply with the statutes requiring the filing of a notice of intention. The salient question before this court is whether the transactions which heretofore took place at the time of the inception of the original action by plaintiff against an uninsured motorist constituted sufficient notice under N.J.S.A. 39:6--65. The Fund claims that the procedure followed was such that it should not be called upon to defend the action; plaintiff, on the other hand, claims that there has been a sufficient substantial compliance with the statute so as to impose an obligation upon the Fund to defend and, in the event of a judgment, after trial, to pay within statutory limits any judgment plaintiff may obtain.
The original action and the transactions taking place thereunder are as follows: On February 8, 1969 plaintiff was involved in an automobile accident with an uninsured motorist, one James Martin. The accident happened in Cumberland County and, as a result thereof, plaintiff herein was injured. A complaint was filed against the uninsured motorist on February 24, 1969 by the firm of Perskie and Perskie, attorneys, having their offices in Wildwood, New Jersey, which complaint was served upon the driver and other persons joined as defendants, to wit: the owner, Annie B. Martin and other uninsured motorists involved in the accident. Defendants then, and prior to March 13, 1969, visited their personal attorney, Philip P. Wodlinger, who has law offices in the City of Millville. Wodlinger sent the complaint to the Unsatisfied Claim and Judgment Fund Board on March 13, 1969. In an accompanying letter he advised them that James Martin and Annie B. Martin were defendants to the complaint; that the Martins were uninsured and, further, that he had told his clients it would be more expedient for the Fund to attend to the defense of the action. He enclosed a copy of the summons and complaint and stated: This communication was sent to the Fund with the complaint enclosed, and a copy of the letter was sent to plaintiff's counsel.
Nothing was done by plaintiff's counsel, and on May 29, slightly more than 90 days from the date of the accident, the Fund communicated with plaintiff's counsel and advised him as follows: The Fund had the complaint in its office from March 1969 until the end of May 1969, during which time nothing was said by them to anyone or any communications addressed to anyone with respect to the anticipated decision that the Fund was going to make respecting the action. A count of the days will indicate that approximately 117 days had expired, but during the entire 90-day prescribed period, the complaint was in the hands of the Fund.
At the conclusion of the time to plead plaintiff made a motion before the Superior Court, Law Division, Cape May County, for an order granting a default against defendant Fund for failure to plead or otherwise defend. Subsequently, and by order of the court, the Fund was given leave to file an answer in this action. It answered, alleging that it received the letter from Wodlinger, referred to hereinabove, and admitted it had received a notice of intention, dated June 5, 1969 after the expiration of the 90 days. As a separate defense the Fund set up as a bar noncompliance with N.J.S.A. 39:6--65. Subsequent to filing the answer, a motion was made to dismiss the action summarily, and it is this motion the Court is now called upon to decide.
The statute, N.J.S.A. 39:6--65, sets up certain guidelines--a course of action, if you will--promulgated for the purpose of granting heretofore unknown relief to statutorily qualified persons injured or suffering property damage by virtue of accidents with uninsured motorists. The statute prescribes a certain procedure that must be followed, and the Fund alleges in its brief, as well as in argument before the court, that plaintiff's action is barred because there was a failure to follow these prescribed guidelines.
It is the opinion of this court that to deny relief because of a deviation from the prescribed route is to defeat the very purpose for which the statute was enacted. A reading of section 65 would indicate that its primary purpose is to place the Fund upon notice of the pending action. Obviously, it is imperative that the Fund, as well as any insurance company, should have prompt notice of the happening of a casualty insured against or protected by the Fund. A requirement that such notice be given is reasonable and will be enforced. Miller v. Zurich General Acc. & Liab. Ins. Co., 36 N.J.Super. 288, 115 A.2d 597 (App.Div.1955). It would seem that the Fund needs prompt notice, as does any insuror, yet an examination of the statute will indicate that its provisions for notice to the Fund are much more liberal than those contained in insurance policies. See Russo v. Forrest, 52 N.J.Super. 233, 145 A.2d 339 (App.Div.1958).
In this case notice was not sent to the Fund within the prescribed time; however, plaintiff did ask for forms and advised the Fund of the accident. The case arose out of a delay because of the injury and, on the facts, the court denied relief; however, the court in its opinion indicated that if notice had been given by some person, particularly plaintiff's husband who was with her at the time of the accident, within a reasonable time, then even if the information had been in the form of a letter telling the Fund about the accident and requesting forms, it would have been sufficient to have fulfilled the statutory mandate. The court was explicit in pointing out that 'It would be impossible in a single opinion to lay down general rules for the guidance of all future cases.' However, pertinent in the opinion was the following And though the statute does say the notice shall be 'on a form prescribed' by the Fund that does not mean the claimant or someone on his behalf may not write the Fund, advise it of the accident, and ask for forms * * *. (T)he date of the receipt of such a letter, and its contents, would very likely have a bearing favorable to the claimant on the ultimate question whether notice by or on behalf of the claimant was given within a proper time.
It is well recognized in our law that the purpose of notice is merely to apprise the responsible party of the pendency of an action and to give him an opportunity to make investigation and protect himself in the suit, should there be one. The purpose of notice is to avoid fraud and to prevent the claimant from taking an unfair advantage over the person, insurance company or Fund called upon to defend an action by allowing such a length of time to expire that it would be impossible for proper investigation and preparation. See Miller v. Zurich General Acc. & Liab. Ins. C., Supra.
The basic philosophy behind the entire Fund concept was laid down by Justice Heher in Giacobbe v. Gassert, 29 N.J. 421, 149 A.2d 214 (1959). In that case the question arose as to whether an injured person was able to give the statutory notice required under N.J.S.A. 39:6--65 or, in lieu thereof, show some reason for not giving such notice. Plaintiff had been injured, and having no knowledge of the right to seek redress by making a claim against the Fund and later learning thereof, gave notice to the Fund by letter, which letter was written by plaintiff's landlady. Defendant, Director of the Fund, read the statute literally and insisted that notice had not been given within a reasonable period. The court held that the Fund had not been prejudiced, and that its Administrator was not placed at a disadvantage, nor was there any claim, as in this case, to the contrary. Justice Heher pointed out that notice is a process to prevent overreaching and otherwise to secure efficient administration of the Fund, and that the statutory provisions should be liberally read and applied to serve and not subvert the substance or policy of relief in the given circumstances. He stated that the statute was protective, not punitive, and he recognized the relaxation that may be required under certain mitigating circumstances. In any event, he did not place a strict construction upon the statute, as the Attorney General would in the present case. The court said in Giacobbe:
It is the obvious reason of a law that gives it life, not the strict, literal sense of terms. The words may be expanded or limited according to the spirit of the legislative expression. The animating principal of the correlated symbols of expression prevails over the import of particular words and phrases, considered In vacuo or in the context of other and different circumstances. The whole is to be coordinated in fulfillment of the overriding plan and purpose; the procedural course is not an end in itself but a mechanism in aid of the substantive policy. (Cit...
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Beltran v. Doe
...Plaintiff contends that the letter was sufficient notice and relies for that position on Watford v. Unsatisfied Claim & Judgment Fund Bd., 113 N.J.Super. 495, 274 A.2d 317 (Law Div.1971). In that case there was an accident of February 8, 1969. A complaint was filed on February 24, 1969, aga......