Civil action. On motion for an order directing judgment.
Masucci, J.c.c. (temporarily assigned).
Each of the plaintiffs in the above cases applies for an order directing payment of his respective judgment from the Unsatisfied Claim and Judgment Fund pursuant to N.J.S.A. 39:6-71, claiming to have complied with all the necessary provisions of the Unsatisfied Claim and Judgment Fund Law.
The applications are resisted on the grounds that:
1. Plaintiffs have failed to pursue their claim against a codefendant to judgment.
2. The Fund is entitled to credit against plaintiffs' respective judgment of $3,750 and $2,400 for the amounts received by said plaintiffs from the said codefendant Tice.
The facts are not in dispute.
Each plaintiff instituted his respective suit against the defendant Raymond Dygert and codefendant Tice for injuries and damages arising out of an automobile accident charging each defendant with negligence contributing to the accident as the natural and proximate cause and with the resulting injuries and death of Marlene J. Still.
The suits were prosecuted to trial. During the course of the trial, following negotiations and discussions of settlement between all parties, the claims against the defendant Tice were settled, the suits dismissed as against him, and covenants not to sue executed and delivered to him. The suits then proceeded against the defendant Dygert, resulting in a judgment in favor of the plaintiff Still in the sum of $3,750 and in favor of the plaintiff Gray in the sum of $2,400. As a result of the settlement with Tice the plaintiff Still received the sum of $3,700 and the plaintiff Gray the sum of $2,600. In submitting the cases to the jury as against the defendant Dygert the court, among other things, advised the jury of the settlement of the plaintiffs' claims with the defendant Tice and of the amount of each settlement and specifically instructed them that in considering the issue of damages, they should first assess the entire damages to which they believed each of the plaintiffs was entitled and from this amount deduct the amount each plaintiff was receiving as a result of the settlement with Tice, and render a verdict for the net difference, if any. The jury came in with the verdicts for the plaintiffs mentioned above.
The first point raised by the Fund, that the plaintiffs must pursue their respective claims to judgment before they are entitled to recover against it, requires a construction of N.J.S.A. 39:6-71, which provides that the applicant:
"* * * has fully pursued and exhausted all remedies available to him for recovering damages against all persons * * * by
(1) Commencing actions against all such persons against whom the applicant might reasonably be considered as having a cause of action in respect of such damages and prosecuting ...