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Schlenger v. Conti

Decided: November 29, 1957.

HERMAN SCHLENGER AND RUTH SCHLENGER, PLAINTIFFS-RESPONDENTS,
v.
RICHARD CONTI, DEFENDANT



Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

The Unsatisfied Claim and Judgment Fund Board ("Board") appeals from an order of the County Court, Law Division, directing it to pay plaintiffs Schlenger the sums of $1,387 and $2,170, respectively, remaining uncollected on certain judgments recovered against defendant Conti.

Plaintiff Herman Schlenger was the owner and operator of an automobile which collided with an automobile owned and operated by defendant Conti on December 30, 1955. Co-plaintiff, his wife, was a passenger. Both Schlengers were injured and their car damaged. On January 18, 1956 plaintiffs, pursuant to N.J.S.A. 39:4-130, reported the accident to the Security-Responsibility Section of the Motor Vehicle Division, Department of Law and Public Safety,

on forms supplied by it. However, they gave no notice of the accident to the Board, as required by N.J.S.A. 39:6-65, until July 20, 1956, when they filed notice of their intention to make claim for uncollectible damages from the Unsatisfied Claim and Judgment Fund.

In the meantime, plaintiffs on June 10, 1956 served Conti with process in an action for damages resulting from his alleged negligence. He answered and counterclaimed. It was not until July 3, 1956 that plaintiffs gave the Board notice of the institution of the action and supplied it with a copy of the complaint. Conti's counterclaim was dismissed on motion on October 17, 1956, by reason of his failure to answer interrogatories. On November 30, 1956, again on plaintiffs' motion, the court struck the answer, entered Conti's default and placed the action on the trial list for assessments of damages. Damages were assessed January 17, 1957 and judgment entered for $7,500 in favor of plaintiff Herman Schlenger and $2,500 in favor of his wife.

By notice of motion returnable May 17, 1957, plaintiffs applied to the County Court for an order directing payment out of the Unsatisfied Claim and Judgment Fund of the amount remaining unpaid upon that judgment. The notice was supported by a verified claim, subsequently amended to show monies received from various policies and to be credited against the judgment. After oral argument the County Court, by letter opinion, informed counsel that it would sign an order directing payment from the Fund, stating that plaintiffs' failure to comply with the requirements of N.J.S.A. 39:6-65 had not been shown to have prejudiced the Fund. After observing that "the matter came to the attention of the Director of Motor Vehicles within 30 days" (there was no proof of this, except for the filing of the accident report with the Security-Responsibility Section of the Motor Vehicle Division on January 18, 1956) and that by N.J.S.A. 39:6-64 the Director is a member of the Unsatisfied Claim and Judgment Fund Board, the trial court concluded that "it would appear * * * to be inequitable to hold that there had been no substantial compliance

with the letter of the statute [ N.J.S.A. 39:6-65]." The court thereupon, on June 3, 1957, entered the order from which this appeal is taken.

N.J.S.A. 39:6-65 (L. 1952, c. 174, ยง 5), as it read at the time of the accident, provided that

"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 [Unsatisfied Claim and Judgment Fund], shall, within 30 days after the accident, as a condition precedent to the right thereafter to apply for payment from the fund, give notice to the [Unsatisfied Claim and Judgment Fund Board] , on a form prescribed by it, of his intention to make a claim thereon for such damages if otherwise uncollectible and otherwise comply with the provisions of this section; 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 that he was physically incapable of giving said notice within said period and that he gave said notice within 30 days after he became physically capable to do so or in the event that he did not become so capable, that a notice was given on his behalf within a reasonable period. * * * Such person shall also notify the board of any action thereafter instituted for the enforcement of such claim within 15 days after the institution thereof, and such notice shall be accompanied by a copy of the complaint." (Italics ours)

(This section of the Unsatisfied Claim and Judgment Fund Act was further amended by L. 1956, c. 200, effective July 1, 1956, to provide for notice to the Board within 90 days after the accident.)

Plaintiffs did not give the required notice to the Board until more than six months after the accident and, further, failed to notify it of the action they had instituted against Conti, which notice was required to be accompanied by a copy of the complaint, until 23 days after the institution of the action. Nevertheless, in support of the County Court order they argue that (1) the Unsatisfied Claim and Judgment Fund Act, being remedial legislation, must be liberally ...


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