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Lewis v. Engelhardt

Decided: May 8, 1963.

MELVYN LEWIS, PLAINTIFF,
v.
RONALD D. ENGELHARDT, BERNARD ENGELHARDT, RALPH PERRUZZI AND NED PARSEKIAN, DIRECTOR OF MOTOR VEHICLES, DEFENDANTS



Kolovsky, A.j.s.c.

Kolovsky

Defendant Director of the Division of Motor Vehicles moves to dismiss the complaint in an action instituted by plaintiff against him and against defendants Ronald D. Engelhardt, Bernard Engelhardt and Ralph Perruzzi

"upon the grounds that the first and second counts of the complaint do not state claims upon which relief may be granted against the said defendant, and that the action instituted against him is premature within the meaning and intent of the Unsatisfied Claim and Judgment Fund Law, and in respect to the first count, upon the further ground that it is a cause of action for injury to property (property damage) which cannot be maintained against the said defendant, within the meaning and intent of the Unsatisfied Claim and Judgment Fund Law."

The inartistically drawn complaint charges that the collision which caused plaintiff's injuries and property damage was caused by the negligent operation of three automobiles, one owned by defendant Bernard Engelhardt and driven by defendant Ronald Engelhardt, the second owned and driven by defendant Ralph Perruzzi, and the third "owned and operated by a person whose identity has not been established."

In joining the Director as a party defendant, plaintiff seeks the benefits provided by the sections of the Unsatisfied Claim and Judgment Fund Law (N.J.S.A. 39:6-78 et seq.) permitting

suit against the Director in "hit and run" cases in the circumstances and within the limitations therein prescribed.

But the benefit of those provisions is limited to cases of death or personal injury. The first count of the complaint seeks to recover property damages. It will be stricken as to the Director.

Nor does the second count of the complaint, seeking damages for personal injuries, state a claim for relief against the Director. To state a claim for relief, a complaint must "contain (a) a statement of the facts on which the claim is based showing that the pleader is entitled to relief * * *" (R.R. 4:8-1).

Under N.J.S.A. 39:6-78, to recover a judgment against the Director a plaintiff is required to prove, "upon the hearing of the action," and to state a claim for relief his complaint must allege, that he is a "qualified person" (N.J.S.A. 39:6-62) and that:

"(a) [He] has complied with the requirements of section 5 [of the Act, (N.J.S.A. 39:6-65, requiring notice of the accident and of intention to file a claim to be given to Fund Board within the time limited thereby)],

(b) [He] is not a person covered with respect to such injury or death by any workmen's compensation law, or the personal representative of such a person,

(c) [He] was not at the time of the accident operating or riding in an uninsured motor vehicle owned by him or his spouse, parent or child, and was not operating a motor vehicle in ...


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