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Rudnick v. Benther

Decided: March 22, 1961.

SARAH RUDNICK, PLAINTIFF-APPELLANT,
v.
FRED BENTLER AND KENNETH MILSON, DEFENDANTS. UNSATISFIED CLAIM AND JUDGMENT FUND BOARD OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



Conford, Freund and Kilkenny. The opinion of the court was delivered by Freund, J.A.D.

Freund

On February 18, 1957 plaintiff Sarah Rudnick, while a passenger in an automobile owned and operated by one Kenneth Milson, was injured when the Milson vehicle was struck by a car owned and driven by one Fred Bentler. The accident occurred at or near the intersection of two highways in Elizabeth, N.J.

Realizing that Milson was a Florida resident and domiciliary and that his vehicle was registered in Florida, and learning that Bentler, a Newark resident whose automobile was registered in New Jersey, did not carry insurance at the time of the accident, plaintiff filed, on May 17, 1957, a

notice of intention to make claim with the Unsatisfied Claim and Judgment Fund Board. The Board, on May 21, 1957, impliedly rejected her application because she was neither a New Jersey resident nor the owner of a motor vehicle registered in this State. Plaintiff was and still is a New York resident.

Suit was thereafter instituted in the Law Division, Union County, against Bentler; the latter, although personally served with process, defaulted in appearance, and judgment was entered on February 27, 1959 in the sum of $15,000. It appeared at the ex parte hearing that Bentler was solely responsible for the collision.

After exhausting all reasonable efforts to locate Bentler in order to satisfy the judgment, plaintiff, on April 1, 1960, served a notice of motion seeking an order for payment of the judgment to the extent of the then existing limits of the Fund. From an order denying her application for payment, plaintiff brings this appeal.

The paramount legal issue for our consideration is whether plaintiff is a "qualified person" within the meaning of N.J.S.A. 39:6-62 and therefore entitled to the benefits of our Unsatisfied Claim and Judgment Fund Law, N.J.S.A. 39:6-61 et seq. A subsidiary question raised by plaintiff is whether the rights of a nonresident applicant to the Fund are to be determined as of the date of accident or the date of application for payment.

N.J.S.A. 39:6-62 defines a "qualified person" as:

"* * * a resident of this State or the owner of a motor vehicle registered in this State or a resident of another State, territory, or Federal district of the United States or Province of the Dominion of Canada, or foreign country, in which recourse is afforded, to residents of this State, of substantially similar character to that provided for by this act."

The "substantially similar recourse" provision was subjected to detailed scrutiny in Betz v. Director, Div. of Motor Vehicles , 27 N.J. 324 (1958), also involving an application

on behalf of a New York resident. There, plaintiff's decedent was killed in Sparta Township, New Jersey, when his vehicle was negligently forced off the road by a "hit and run" driver. After rejecting plaintiff's contention that the phrase, "any person," in N.J.S.A. 39:6-78, was not subject to the definitional limitation of "qualified person" in N.J.S.A. 39:6-62, the court proceeded to determine whether the then existing New York Motor Vehicle Financial ...


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